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SC Appeals Court: Harmless Hearsay is OK

In law school, Evidence was one of my favorite subjects to study. In fact, I liked it so much, I took both Evidence and 'Advanced' Evidence from Warren Moise, an excellent professor and respected lawyer, I might add. So, this week, we look at an opinion from the South Carolina Court of Appeals just published on March 29, 2017 - State v. Clyde Bowen Davis.

This appeal from Greenville county involved a man, Clyde Davis, who was convicted on a charge of "conspiracy to traffic 100 grams or more but less than 200 grams of methamphetamine" (I get a giggle at the cumbersome wording of some criminal charges). Mr. Davis appealed on several grounds, but among them was that the trial court erred in admitting testimony from an investigator which included hearsay from a confidential informant.

Hearsay is a statement made out of court which is used to support "the truth of the matter asserted therein." While there are some important exceptions, as a rule, hearsay is generally not admissible in court. When possible, we would rather have "Witness A" say something rather than have "Witness B" say they said it. That way "Witness A" can be cross-examined for bias or credibility, etc. This is especially important in criminal cases because someone who is accused of a crime has the right to confront those who are making allegations against him. This right is guaranteed by the Sixth Amendment to the Constitution.

In this Greenville case, a "confidential informant" made statements to investigators that he had completed a drug deal at Clyde Davis's residence. These out-of-court statements were then presented to the jury as part of the State's evidence against Davis in order to prove that a drug deal had occurred - "the truth of the matter asserted therein." Since Davis (or his attorney) did not have the opportunity to cross-examine the informant, the Court of Appeals found that the trial court violated the Sixth Amendment of the Constitution by allowing the statements to be presented as evidence.

So, Davis won his appeal on those grounds, right? WRONG!

South Carolina law says that if hearsay evidence was improperly admitted, but it was "harmless," or in other words, if it made no difference to the outcome of the trial, then that error cannot be used to overturn the verdict. The Court of Appeals determined that there was so much evidence against Davis, that even if the hearsay had not been admitted, it wouldn't have made any difference to the jury. (Mind reading?)

What is the moral of the story?: Rules are rules, except when breaking them doesn't make any difference in the long run. And perhaps that is the way it should be with these evidence rules. The Court's focus seems to be on maintaining the integrity of the jury's decision based upon the weight of the evidence rather than overturning it based on a technicality. On the other hand, a rule is a rule...

What do you think?

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