Cop’s Hearsay Testimony Overturned by Appeals Court

At times, I admit that this website has plunged into the ultra-boring philosophical underpinnings of “knowledge”. The word gets tossed out there quite frequently, and yet we often don’t “know” half of what we think we “know”. This little rabbit hole is especially fragile when six jurors are hanging on a witness’ every word. When it comes to a criminal case, if some “fact” is going to be admitted at trial, the rules of evidence are there to ensure that such knowledge is–in fact–reliable.

BTW: Reliable knowledge is not so easy to come by, though scientists often boast that–if the result of an experiment can be repeated– we can all trust that result. Of course, the same was said of claims that “all swans are white”. For centuries, scientists found more and more white swans, and with every additional white swan, their “belief” in the accuracy of their knowledge was confirmed. Confirmed, that is, until black swans were discovered in Australia. Then, of course, the “theory” was proven false in one fell swoop. Not sure where I was going with this, but it’s an interesting tidbit. True story.

Anyway, our legal system does it’s best to keep evidence as pure as possible. One way this is accomplished is via the rules regarding hearsay. Basically, hearsay is “an out of court statement used to prove the truth of the matter asserted”. Lots of evidence within a trial may be considered “out of court statements”, and if you’re not paying attention, they’ll slip right into evidence. Watch carefully for just such a problem in the case of J.G. v. State of Florida, 114 So. 3d 1078 (2d DCA 2013).

The initials “J.G.” do not refer to me, they refer to a juvenile defendant (can’t use a juvenile’s real name). J.G. was seventeen, hanging out around midnight at a local housing project. An officer ran J.G.’s name and discovered that six months ago, he had been trespassed off the property for one year–unless, of course, he was invited to visit. J.G. could not provide the officer any proof that he had permission to be present, so the officer arrested him for trespass after warning.

At the trial, the prosecutors had called the officer that gave J.G. the initial trespass. They also called the officer who arrest him on this case, and this officer testified that the housing project had a written agreement with the police department which made them agents of the housing project–thereby permitting them to issue trespass warnings. You see the problem here?

The prosecutors never presented any evidence of the agreement which granted the police permission to trespass folks from the property. The officer merely “told” the judge that such an agreement existed. Of course, the defense attorney made a hearsay objection to the testimony, but he trial court denied the hearsay objection and permitted J.G. to be convicted on this testimony.

On appeal, the Second DCA got back to basics, noting that the trespass statute makes it a crime to be on property after warning only if that warning was “personally communicated to the offender by the owner of the premises or by an authorized person”. Section 810.09(2)(b), Florida Statutes. The appeals court correctly held that the officer’s statement regarding their authority to trespass (via the written agreement) “are examples of classic hearsay” and that the “statement can be, as in this case, a written assertion.” id. As such, the court threw out J.G.’s conviction.

The appeals court goes on to recap a good example of “authorization from the proper authority” found in the case of I.M. v. State, 95 So.3d 918 (Fla. 2d DCA 2012). I.M. was trespassed from a library, and “the trial court granted defense counsel’s motion in limine to exclude any hearsay testimony by the off-duty deputy that the head librarian had given him authority to issue trespass warnings. The closed the State came to establishing such authority was asking the deputy, “As a Hillsborough County Sheriff’s Deputy do you have the authority to issue trespass warnings?” The deputy responded, “We Do.” This, however, is insufficient to establish that the deputy had “been given either express or implied authority from the chief executive” of the library.” …In I.M., the lack of evidence from the head librarian torpedoed the State’s case with respect to the source of the deputy’s authority. Similarly, the State in J.G.’s case had no evidence from the owner of the premises or other authorized person…showing that he or she had given Tampa police officers authority to issue trespass warnings.” Id.

So there you have it–hearsay regarding the contents of a written agreement between the housing authority and police department should be admitted through someone of authority over the property. Unfortunately, the appeals court suggested (in dicta) that the State could have admitted this evidence as “an exception to hearsay as in a properly authenticated business record.” I don’t agree with that notion, but we’ll save that argument for another day.