In criminal cases, testimonial hearsay is usually not allowed and will be inadmissible at testimony. Hearsay testimony would be somebody taking the stand and explaining what somebody else said. The United States Constitution and specifically the confrontation clause grants every defendant in a criminal trial the right to confront witnesses used against them and cross examine them. As a Massachusetts criminal defense attorney, cross examining is extremely important to ensure the truth is being told by the witness. With hearsay testimony, the right to cross examine the witness would be gone as it is simply somebody else stating what was said and for this reason is unconstitutional.

However, there is one exception to this hearsay rule which was explained in Michigan v. Bryant. In this case, the victim was mortally wounded and in some of his last words, he told police he was shot by the defendant. The Supreme Court found that the officer’s testimony of what the victim said was constitutional even though that would usually be hearsay testimony. The court ruled that in emergency situations such as this where something is said in a victim’s dying words, it will not violate the confrontation clause.

A Rhode Island murder case has recently had a case with similar facts such as these. In this case, a detective found two men wounded outside of the Monet Lounge in Providence and was informed that there were two suspects in custody. The detective then led the suspects over to the mortally wounded victim. He proceeded to show the victim one suspect and asked if this was the man who shot him. The victim had no response, and when the detective showed the other suspect, who is now the defendant, the victim shook his head up and down identifying the defendant as the shooter.

The detective’s testimony would have in the past been classified as hearsay evidence as the testimony he is giving is simply words spoken by another person. The defendant has no opportunity to confront the witness who spoke these words because they have passed away. However, this testimony was allowed and the court no doubt invoked Michigan v. Bryant to prove it constitutional. Like in that case, this identification of the shooter was made in a time of emergency. The court ruled that when statements are received during an ongoing emergency rather than in an opportunity to gather facts for the purpose of prosecution, it can be constitutional even though technically hearsay. The Providence case falls within this emergency.

It is important to note that when in a criminal trial, testimony such as this can only be used when the information is received during an emergency. If the information was received in a normal fashion in order to gather it for purposes of prosecution, it will still be hearsay. This will be the case even if gathered by a police officer at a crime scene. Furthermore, this type of testimony will usually be limited to when the person who spoke the information has passed away.