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Nonhearsay
Admission by Party Opponent
· Morris v. Tidewater Land & Timber, Inc., 388 S.C. 317 (Ct. App. 2010) Admission by a party opponent is nonhearsay if it is both the party’s own statement and it is used against that party. In this case, the trial court properly excluded a party’s own statement because it was being used against another co-party. Because the statement was not being used against the party who made the statement, it did not fall under nonhearsay. See also Eberhardt v. Forrester, 241 S.C. 399 (1962).
· Player v. Thompson, 259 S.C. 600 (1972) If a statement is admissible against one party and it is inadmissible against other parties, then the trial judge should admit the statement and give a jury instruction advising the jury who it is admissible against. If the statement can be redacted and only admit the admissible portion, then the judge should do that. If not, then a jury instruction is appropriate. (But also see the chapter “Sixth Amendment: Bruton”).
Adoption of Statement
· State v. Knoten, 347 S.C. 296 (2001) The trial court properly allowed an investigator to testify about a mother’s statement made in front of law enforcement where she was attempting to get her son to admit to a crime and to tell the truth. The defendant did not refute his mother’s statement. Additionally, the defendant admitted he lied when he denied involvement in the crime. The Court held that the defendant adopted the statements by his mother because of his failure to refute the statement and his admission of lying about the denial.
Conspiracy
Summary: The coconspirator exception to hearsay requires a conspiracy and statement made in furtherance of that conspiracy. Mere conversations or statements among conspirators is not enough for the exception. Rather, the statements should “induce enlistment, further participation, prompt further action, allay fears, or keep coconspirators abreast of an ongoing conspiracy’s activities.”[1] There needs to be independent evidence of a conspiracy – not just from the statement alone.[2]
CSC Cases
· Thompson v. State: 423 S.C. 235 (2018) In CSC cases, there is an exception to hearsay (nonhearsay) that allows for statements of time and place of the assault, but it is limited to those only.
· State v. Simmons, 423 S.C. 552 (2018) The exception to hearsay of medical diagnosis or treatment can apply to CSC cases, but the exception has several requirements that must be met.
· State v. Whitner, 399 S.C. 547 (2012) Usually a prior consistent statement is not allowed unless there is allegation of recent fabrication. In CSC cases, there is a specific statute (17-23-175)[3] allowing prior consistent statements of victims if certain requirements are met.
· State v. Jennings, 394 S.C. 473 (2011) Trial court improperly allowed in forensic interviewer’s written reports that contained inadmissible hearsay. This hearsay bolstered the children’s testimony improperly.
[1] State v. Sims, 387 S.C. 557 (2010). [2] State v. Gilchrist, 342 S.C. 369 (2000). [3] SECTION 17-23-175. Admissibility of out-of-court statement of child under twelve; determination of trustworthiness; notice to adverse party. (A) In a general sessions court proceeding or a delinquency proceeding in family court, an out-of-court statement of a child is admissible if: (1) the statement was given in response to questioning conducted during an investigative interview of the child; (2) an audio and visual recording of the statement is preserved on film, videotape, or other electronic means, except as provided in subsection (F); (3) the child testifies at the proceeding and is subject to cross- examination on the elements of the offense and the making of the out-of-court statement; and (4) the court finds, in a hearing conducted outside the presence of the jury, that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness. (B) In determining whether a statement possesses particularized guarantees of trustworthiness, the court may consider, but is not limited to, the following factors: (1) whether the statement was elicited by leading questions; (2) whether the interviewer has been trained in conducting investigative interviews of children; (3) whether the statement represents a detailed account of the alleged offense; (4) whether the statement has internal coherence; and (5) sworn testimony of any participant which may be determined as necessary by the court. (C) For purposes of this section, a child is: (1) a person who is under the age of twelve years at the time of the making of the statement or who functions cognitively, adaptively, or developmentally under the age of twelve at the time of making the statement; and (2) a person who is the alleged victim of, or witness to, a criminal act for which the defendant, upon conviction, would be required to register pursuant to the provisions of Article 7, Chapter 3, Title 23. (D) For purposes of this section an investigative interview is the questioning of a child by a law enforcement officer, a Department of Social Services case worker, or other professional interviewing the child on behalf of one of these agencies, or in response to a suspected case of child abuse. (E)(1) The contents of a statement offered pursuant to this section are subject to discovery pursuant to Rule 5 of the South Carolina Rules of Criminal Procedure. (2) If the child is twelve years of age or older, an adverse party may challenge the finding that the child functions cognitively, adaptively, or developmentally under the age of twelve. (F) Out-of-court statements made by a child in response to questioning during an investigative interview that is visually and auditorily recorded will always be given preference. If, however, an electronically unrecorded statement is made to a professional in his professional capacity by a child victim or witness regarding an act of sexual assault or physical abuse, the court may consider the statement in a hearing outside the presence of the jury to determine: (1) the necessary visual and audio recording equipment was unavailable; (2) the circumstances surrounding the making of the statement; (3) the relationship of the professional and the child; and (4) if the statement possesses particularized guarantees of trustworthiness. After considering these factors and additional factors the court deems important, the court will make a determination as to whether the statement is admissible pursuant to the provisions of this section.