Permitting Hearsay Testimony Examples In Texas
In Schaffer v. State, 777 S.W.2d 111 (Tex. Crim. App. 1989), a defendant in a drug possession case claimed to have been working as an informant for a certain police officer. Id. at 114.
The State called to the stand an investigator who said he had talked to that officer, and asked the investigator if his conversation had caused him to ask the State to drop the charges. Id. at 113.
The investigator replied, "No, sir." Id.
The court of criminal appeals held that permitting this statement was error:
Where there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom, a party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly. In short, "statement" as defined in Rule 801 necessarily includes proof of the statement whether the proof is direct or indirect. Id.
However, the Schaffer court went on to note that a limited hearsay exception should be allowed, enabling testifying officers to place their investigative actions in context:
Almost always it will be relevant for a testifying officer to relate how she happened upon the scene of a crime or accident; thus, it is permissible for her to testify that she was acting in response to "information received." "An arresting officer should not be put in the false position of seeming just to have happened on the scene, he should be allowed some explanation of his presence and conduct." Id. (citing MCCORMICK ON EVIDENCE 249 (Cleary Rev., 3rd Ed. 1984)).
The Schaffer court also noted that it would be improper for a trial court to permit an officer to testify that the information came from a "reliable source." Id. at 115 n.3.
The issue of indirect hearsay was further refined in Head v. State, 4 S.W.3d 258 (Tex. Crim. App. 1999).
In Head, a child sexual assault case, the first witness related the outcry statements of the victim.
The police investigator then took the stand; the trial court permitted him to testify, over objection, that he had taken a statement from the victim and the victim's mother and that these statements were consistent with the testimony of the outcry witness. Id. at 260.
The court in Head held that permitting this testimony was not an abuse of discretion.
It found that whether disputed testimony is impermissible hearsay depends on whether it compels an "inescapable conclusion" that the evidence is being offered to prove the substance of an out-of-court statement. Id. at 262.
The court went on to note that "the focus of the inquiry should remain on whether or not the disputed testimony is being offered to prove an out-of-court statement." Id. at 262 n. 3.