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Issues In NY Criminal Law--Vol. 4, #17©

Issue: Admissibility of "inferential hearsay" at a trial

Consider the following direct examination at a criminal trial.  The prosecutor is questioning a police officer.

Q.  Did you speak with the complainant?
A.  Yes.
Q.  What did he tell you?
Defense attorney: Objection, hearsay.
Judge:  Sustained.
Q.  As a result of your conversation with the complainant, what did you do?

Should defense counsel object again?  If so, on what grounds?  And how should the judge rule? The testimony, if admitted, would be to the effect that, after speaking with the complainant, the police officer arrested the defendant.

Prosecutors have long used this type of evidence.  Without introducing the complainant's actual statement -- blatant hearsay -- the prosecutor's objective is nonetheless achieved.  The jury infers that the complainant identified the defendant.

The question is improper. As discussed below, a frequent issue on appeal is, while the question is improper, is it reversible error?

In an early case, People v Tufano, a police officer testified at a robbery trial.  He was allowed to testify that, shortly after speaking with a codefendant, the defendant was arrested. The codefendant, Terenzi, was not called as a witness at trial.

The Second Department held this reversible error. Any statement made by Terenzi in the course of the conversation was, of course, hearsay and therefore inadmissible:  while the precise contents of the conversation were not revealed on direct examination, it was clearly the prosecutor's intention to create, in the jurors' minds, the impression that Terenzi had implicated the defendant. People v Tufano, 69 AD2d 826, 415 NYS2d 42 (2d Dept 1979). Handling a Criminal Case in New York, 2003-2004 edition, § 9:257 (West Group).

In People v Brown, the arresting police officer was allowed to testify that he was assisted in locating and identifying the defendant by an unknown person.  The Appellate Division reversed the conviction. The hearsay character of the evidence would of course have been apparent if the officer described the details of the information given by the person that led the officer to the defendant. The fact that the testimony took the form of a conclusory statement by an unidentified person, leading the police to the defendant, and did not include the specifics, in no way negated its hearsay character. People v Brown, 129 AD2d 450, 514 NYS2d 326 (1st Dept 1987).

In People v Lee, sodomy and weapon charges were reversed.   The investigating detective had been permitted to testify, over objection, that the defendant became a suspect the day after the young victim had provided a description of the assailant.  The testimony, which raised the inference that the victim had identified the defendant, was hearsay. People v Lee, 129 AD2d 450, 514 NYS2d 326 (1st Dept 1987).

In People v Vadell, a manslaughter conviction was reversed for similar reasons. "The clear implication of this question and answer, of course, was that defendant had told his wife that he had participated in the homicide. . . .Thus, the wife, who never testified, became the primary witness for the prosecution against her husband, thereby denying defendant his Sixth Amendment right to confront and cross-examine witnesses against him."  122 AD2d 710, 712, 505 NYS2d 635 (1st Dept 1986).

Courts have also referred to such testimony as "inferential bolstering."

In People v Bowman, the court noted that prosecutors were all too frequently using police witnesses to improperly bolster testimony.  The court admonished prosecutors to avoid such conduct. People v Bowman, 122 AD2d 849, 505 NYS2d 717 (2d Dept 1986). Where the prosecutor on summation repeatedly referred to the detective interviewing others before arresting the defendant, the appellate court found this improper.  People v Ramos, 216 AD2d 250, 629 NYS2d 14 (1st Dept 1995).

While the testimony is objectionable, a number of appellate decision have held that its admission did not warrant reversal of the conviction.  This includes the Court of Appeals, which has found it to be harmless error. See e.g., People v Johnson, 57 NY2d 969, 457 NYS2d 230 (1982).  Other courts have allowed it in to "complete the narrative." People v Elliott, 220 AD2d 270, 632 NYS2d 114 (1st Dept 1995).

In reversing a conviction on other grounds, the Court in People v Holt also commented on "implicit bolstering." While such evidence "may not have warranted reversal in and of itself, the testimony should be excluded upon proper objection at the retrial." People v Holt, 67 NY2d 819, 821, 501 NYS2d 641 (1986).

At suppression hearings, courts have allowed such testimony.  Under CPL 710.60(4), hearsay is admissible. See, e.g., People v Cook, 115 AD2d 240, 496 NYS2d 175 (4th Dept 1985), affd 68 NY2d 830, 508 NYS2d 170 (1986). Handling §§ 9:102, 9:190.

The prosecutorial proclivity of introducing implicit hearsay, and the state court propensity of condoning its use, may need revisiting as the result of a Second Circuit decision.  In Ryan v Miller, 303 F3d 231 (2d Cir 2002), the defendant was convicted in state court of second degree murder.  The conviction was affirmed on direct appeal and the Court of Appeals denied leave. In second season, the federal court took a dim view of using implicit hearsay.  The indirect hearsay testimony that was allowed into evidence was that of the codefendant. This was a Bruton type of violation of the constitutional right of confrontation.

The Second Department has since found the use of inferential hearsay to be ground for reversal. People v Jones, 305 AD2d 698, 760 NYS2d 227 (2d Dept 2003).

"There are a thousand thoughts lying within a man that he does not know till he takes up a pen to write."
William Makepeace Thackeray


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