steady-hall

 Timothy P. O'Neill

January 21, 2005

A recurring problem at criminal trials is just what police may testify to in explaining how and why they undertook a particular investigation. Relating too few details of why they responded to the crime scene may make the story confusing to the jury; yet relating too many details of what brought them to the scene may introduce inadmissible hearsay.

The seriousness of this problem was brought home recently in a very interesting 1st District Appellate Court opinion written by Justice Margaret O'Mara Frossard in People v. Jura, 817 N.E.2d 968 (1st Dist. 2004).

Timothy Jura was convicted of unlawful use of a weapon by a felon. The story begins with Officers John Fitzgerald and Tim Harts of the Chicago police department arriving in an alley in response to a radio call of a "man with a gun." They were soon joined by Officers Paul Matthews and Steve Barsch. There they observed Jura and four other men standing near a car. Jura allegedly looked at the officers, moved toward a garbage can and then threw a gun inside.

Although Jura then ran away, he was quickly apprehended by Barsch. The gun in the garbage can had six live rounds.

At trial, Jura denied that he had ever possessed the gun.
At trial, the prosecution had to explain to the jury just why the four officers happened to be in the alley where Jura allegedly possessed the gun. Yet establishing this type of background information can present serious hearsay problems.

As a general rule, the Illinois Supreme Court has held that a police officer may "testify about statements made by others, such as victims or witnesses, when such testimony is not offered to prove the truth of the matter asserted, but is instead used to show the investigative steps taken by the officer leading to the defendant's arrest." People v. Pulliam, 176 Ill.2d 261, 274 (1997).

The Appellate Court has elaborated on this principle:

"Although a police officer may reconstruct the steps taken in a crime's investigation and may describe the events leading up to the defendant's arrest where such testimony is necessary and important to fully explain the state's case to the jury, there is a distinction between an officer testifying to the fact that he spoke to a witness without disclosing the contents of that conversation and an officer testifying to the contents of the conversation. Under the investigatory procedure exception, the officer's testimony must be limited to show how the investigation was conducted, not to place into evidence the substance of any out-of-court statement or conversations for the purpose of establishing the truth of their contents.

"The police officer should not testify to the contents of the conversation, since such testimony is inadmissible hearsay." People v. Trotter, 254 Ill.App.3d 514, 527 (1993) (citations omitted) (emphasis added).

Frossard begins by conceding that the prosecution needed to explain why four police officers happened to converge on an alley. However, she avers that the state merely needed to demonstrate that these on-duty officers received a radio call that caused them to come to that alley. Period.

Instead, Fitzgerald testified that the radio call was for a "man with a gun" and that the call identified the suspect as a "male, white, with a tattoo with a teardrop on his face" and, over a sustained objection, that he saw a person in the alley matching this description. Matthews likewise testified concerning the "man with a gun" radio call but added that the description was "male, white, approximately 6 feet tall." This was in large part repeated by Barsch in his testimony.

In addition, the Appellate Court noted that the state both in its opening statement and closing argument relied on the substance of these statements to prove that Jura indeed matched the hearsay description of the man with a gun.

In rejecting the state's argument that it properly followed the "police investigation" exception, Frossard pointedly noted:

"We emphasize that we could accept the state's argument that it used the hearsay merely to explain the investigation undertaken by the police had the state not elicited the hearsay repeatedly through the testimony of not one, but three witnesses; relied upon the hearsay in opening statement; relied upon the hearsay in closing argument; and repeated the 'fact' the hearsay description matched the defendant although the trial judge had sustained objection to this question and that 'fact' was not in evidence. The record demonstrates the hearsay was used as substantive evidence to prove defendant guilty." At 977.

The opinion went on to find that the error was sufficiently prejudicial to merit a new trial.

What makes Jura a particularly good case for criminal attorneys and judges to "clip and save" is Frossard's conclusion in which she disapprovingly notes how often this issue continues to crop up in Illinois criminal trials. She notes that this is true despite the fact that Illinois courts have repeatedly set out the applicable legal principles surrounding this issue (citing People v. Warlick, 302 Ill.App.3d 595 (1998)) and have repeatedly condemned this type of hearsay in the past (citing People v. Singletary, 273 Ill.App.3d 1076, 1088 (1995) (Egan, J., specially concurring).

She stressed that at retrial the officers could properly testify that a citizen complaint had been received and acted upon, but should not relate the substance of the radio call regarding the citizen's complaint.

Illinois, of course, is not alone in experiencing these problems. Judge Charles Moylan memorably described the prosecution's belief that it always had the right to tell the jury every detail that occurred in the course of a criminal investigation as nothing more than an old wives' tale.

He went on to succinctly refute the idea that every event in the course of a criminal investigation must necessarily be relevant and admissible evidence:

"A valid criminal trial might well consist of nothing more than evidence of the corpus delicti of a crime on the East Coast on January 1 followed by the confession of the perpetrator on the West Coast on December 31. What the East Coast investigators did in the intervening year could be completely immaterial, just as could the intervening history of the perpetrator." Zemo v. Maryland, 646 A.2d 1050, 1054 (Md. Ct. of Special Appeals 1994).

Defense attorneys need to have Jura and Zemo ready to use when police testimony crosses over into prejudicial hearsay.