Monder Law Group - News
DUI – Hearsay
What is admissible or not in your DUI Trial
What Is Hearsay?
Hearsay is an out of court statement, any statement—written or oral, offered for the truth of what is written or said. And this is critical to DUI cases because prescreening tests are usually printed out, and the print out of the results is a “writing.” And according to evidence rules, “the content of a writing may be proved by an otherwise admissible original.” This means that the prosecution would have the officer testify to breath test results without offering the original statement (print out) of said results.
What is Secondary Evidence?
Secondary evidence is evidence that has been reproduced from an original document or substituted for an original item. For example, a photocopy of a document or photograph would be considered secondary evidence. Another example would be an exact replica of an engine part that was contained in a motor vehicle. If the engine part is not the very same engine part that was inside the motor vehicle involved in the case, it is considered secondary evidence. Courts prefer original, or primary, evidence. They try to avoid using secondary evidence wherever possible. This approach is called the best evidence rule.
The rules of evidence also require the court to: exclude “secondary evidence of the content of writing if the court determines: (1) a genuine dispute exists concerning material terms of the writing and justice requires the exclusion or (2) admission of the secondary evidence would be unfair.
This is important if the officer does not print out the PAS test results. The officer cannot offer secondary evidence by way of their testimony of what the results were. This is hearsay. In fact, California courts have already made this analogy, to show how ridiculous this is: Proffering testimony about what the officer claims he saw instead of introducing the data from the machine “is analogous to proffering testimony describing security camera footage of an event to prove the facts of the event instead of introducing the footage itself. And on top of all that: the testimony by the officer of the purported PAS test results is an out of court statement (not under oath) of a “statement” made by a machine, offered for its truth, i.e. classic hearsay upon hearsay.
