The outcome of a criminal case often depends on the strength and admissibility of evidence presented in court. One of the most debated forms of evidence is hearsay, an out-of-court statement introduced to prove the truth of the matter asserted. Maryland generally prohibits hearsay in criminal proceedings; however, there are notable exceptions that every defendant, attorney, and witness should be aware of.

What Is Considered Hearsay?

In a criminal trial, a judge will not admit hearsay statements as evidence. Hearsay is formally defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered as evidence to prove the truth of the matter asserted.” For example, a witness could lawfully testify that they saw the defendant assaulting the victim. But if the witness said they merely overheard the defendant tell another person that they assaulted the victim, this would be inadmissible hearsay.

Rule for the Inadmissibility of Hearsay 

Maryland Rule 5-802 establishes the general principle that hearsay is not admissible in court unless it falls under a recognized exception provided by law or rule. This means that, in most cases, statements made outside of court cannot be used as evidence in a criminal trial.

The rationale for excluding hearsay is rooted in the principle of fairness. Hearsay statements are not made under oath, and the opposing party does not have the opportunity to cross-examine the original speaker. This lack of reliability and inability to test the statement’s credibility makes hearsay problematic as evidence.

A Case That Admitted Hearsay Reversed Conviction  

There are multiple exceptions to the general ban on hearsay testimony. Some of these exceptions can benefit the person on trial. If a judge improperly excludes such evidence, that can be grounds to reverse a conviction and order a new trial.

A decision from the Maryland Court of Special Appeals, Durham v. State, is a good example of when hearsay became admissible due to its valid exception to the general rule of “excited utterance.” This case involves four men: the owner of a repair business, his two employees, and a fourth man who worked as a subcontractor. The defendant was one of the two employees.

One day in September 2018, the owner learned the subcontractor was planning to start his own repair business. This led to a confrontation between the two men, after which the owner left to attend to a customer. About an hour later, the owner received a call from one of his employees, stating the subcontractor was “on top of” the defendant and “trying to kill him.” The owner told the employee to call 911, which the employee did.

Shortly thereafter, the defendant called the owner. The defendant confirmed the subcontractor had attacked him. The owner later said he could hear the subcontractor “shouting very angrily in the background.” Police arrived at the scene of the altercation and found the subcontractor “severely beaten” and having breathing trouble. The defendant had left the scene. His co-workers spoke to the police, and eventually, the police decided the defendant had attacked the subcontractor.

The state charged the defendant with first- and second-degree assault. The defendant argued that he had lawfully acted in self-defense. The first two trials ended in mistrials. During the third trial, the judge refused to allow the owner to testify about what he heard during the two phone calls with his employees. The judge found that all such statements would be inadmissible hearsay. The jury subsequently convicted the defendant of second-degree assault, and the court imposed a seven-year prison sentence.

The Court of Special Appeals reversed the conviction, however, finding that at least some of the owner’s testimony was admissible under an exception to the hearsay rule. For instance, when the defendant told the owner on the phone that the subcontractor was beating him, that was an “excited utterance,” which is a valid exception to the hearsay rule. As the appellate court explained, an excited utterance is a statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Making a statement while under attack certainly qualified, the Court of Special Appeals noted. And since the Court could not say whether or not the admission of the owner’s testimony would have “tipped the scales” with the jury, the verdict could not stand.

Rule for the Admissibility of Hearsay

The rationale for excluding hearsay is rooted in the principle of fairness. But despite this prohibition, hearsay can be admitted in court.

Aside from “excited utterance,” there are other exceptions to the general rule that hearsay is not admissible:

• Statements Made for Medical Diagnosis or Treatment: Statements made for purposes of medical diagnosis or treatment can be admitted.
• Business Records Exception: Records of regularly conducted business activities can be admitted if properly authenticated.
• Dying Declaration: In criminal cases, a statement made by a declarant believing their death is imminent, concerning the cause or circumstances of what they believed to be impending death, is admissible.
• Statement Against Interest: If the declarant is unavailable, a statement that was made against their own interest may be admitted.

Judges in Maryland have significant discretion in determining whether a hearsay statement meets the requirements of an exception and whether it violates a defendant’s constitutional rights.

A Case When a Judge Improperly Admitted Hearsay

When a judge improperly allows inadmissible hearsay into evidence, it can taint the jury’s verdict. In some cases, an appellate court may even overturn a conviction if it concludes the hearsay prejudiced the defendant’s right to a fair trial.

This happened in Maryland. In Little v. State, the Court of Special Appeals ordered a new trial in a robbery case after the trial judge allowed a police officer to offer inadmissible hearsay statements.

This particular case involved a robbery that occurred in 2016. A man pointed a gun at the victim and ordered him to hand over his wallet and some packages that he was carrying. The victim never identified the robber but provided a general description — a Black male in his early 20s — to the police. A witness told police they saw the robber “run into the rear of the house that had picnic tables in the back.”

A detective identified a nearby house that met that description. He went to the door and spoke with the female occupant of the house, who was the defendant’s mother. At trial, the detective testified that the mother “said her son was the only grown male in the house.” The police subsequently arrested the defendant and charged him with armed robbery.

The defense objected to the detective’s statements as inadmissible hearsay. (The mother herself did not testify at trial.) The prosecution argued the statements were admissible to the extent they explained why the police decided to seek a search warrant for the house. The judge overruled the defendant’s objections. The jury ultimately found the defendant guilty of several criminal charges, and the judge imposed a prison sentence of 23 years.

But as previously noted, the Court of Special Appeals reversed the conviction and ordered a new trial. It said the trial court “abused its discretion” in allowing the detective to testify as to what the defendant’s mother allegedly told him. Even if there was a plausible non-hearsay reason for allowing such testimony – the state’s claim it explained the detective’s subsequent actions – there was still a “great likelihood” that the jury misused the statement as proof of the defendant’s guilt.

Improper Admission of Hearsay in a Criminal Trial

Just like what happened in the case of Little v. State, improper admission can happen in many ways:

• The judge misapplies a hearsay exception
• The statement does not qualify for any recognized exception

If hearsay was improperly admitted, the defendant may raise the issue on appeal.

• Objecting During Trial: The defense must usually object to the hearsay statement at the time it is introduced. Failure to object may limit the ability to raise the issue later.
• Filing an Appeal: If convicted, the defense can appeal the verdict, arguing that the judge’s error in admitting hearsay affected the outcome.
• Appellate Court Review: The appellate court will review the trial record and determine whether the admission of hearsay was in error or whether the error was harmless or prejudicial.

The improper admission of hearsay can undermine the fairness of a criminal trial. If you believe that hearsay evidence was wrongly used against you or someone you care about in a Maryland criminal case, it is critical to speak with a criminal defense attorney.

Contact a Charles County, Maryland, Criminal Defense Lawyer Today

If you or a loved one is involved in a criminal case in Maryland and has questions about evidence or courtroom procedure, it is vital to seek guidance from a criminal defense lawyer in Charles County, Maryland.

For more information or to ask questions, please contact our office to speak with an experienced lawyer at (301) 870-1200.