Legal Updates

Why Hearsay is Not Enough


Many lawyers will mistakenly tell you that hearsay is enough to prove criminal charges.  They will cite to Commonwealth v. Ricker, 2015 Pa. Super 153 (2015).  The Superior Court in Ricker held that hearsay alone was sufficient to prove criminal charges at a preliminary hearing.  The Defendant’s attorneys appealed the decision to the Supreme Court of Pennsylvania.  In 2017, the Supreme Court dismissed the appeal, suggesting that they were uncomfortable holding that hearsay alone was sufficient at a preliminary hearing.  According to the Supreme Court, the Ricker case was not the right factual circumstances to evaluate the open question.  While the issue remains undecided for now, many Philadelphia judges will continue to throw out cases where the prosecution offers nothing but hearsay at a preliminary hearing.

What is Hearsay

According to Pa. R. Evidence 801, Hearsay is an out of court statement used to prove the truth of the matter asserted.  Simply stated, it is a statement usually made before court out of the presence of the judge / fact finder.  The government will often attempt to introduce this statement into evidence to prove their case.  This is textbook hearsay.  Courts do not like hearsay because it is unreliable.  The Court would rightly prefer to hear directly from the witness.  Hearsay also invokes the Confrontation Clause of the United States Constitution.  The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”  If the government uses nothing but hearsay, it interferes with the Defendants ability to cross examine and challenge the government’s case.  It is a form of hiding the ball.  In court a witness may change their story, or explain something differently than out of court.  Moreover, an individual outside of court is not under oath.  For these reasons, the Pennsylvania Rules of Evidence prevent hearsay evidence from admission, except in limited circumstances.

When is Hearsay Admissible

One exception to the hearsay rule is at preliminary hearings.  Pa Crim. P. 542(E) allows the prosecution to use hearsay at a preliminary hearing.  According to the rule, “Hearsay… shall be considered in determining whether a prima facie case has been established.”  The idea is that a preliminary hearing is not the dispositive hearing. It is intended as a court date where the government must establish their basis for the arrest of the Defendant.  The legal standard is that the Commonwealth must make out a “prima facie” case.  The generally accepted definition of prima facie is probable cause.

The exception lies in the fact a preliminary hearing is not a trial.  The purpose of the hearing is merely to establish a basis for the charges brought against the Defendant.  Given the purpose of the court date, hearsay has traditionally been allowed where in-person testimony would be unreasonable or inconvenient.  For example, in ownership and non-permission cases, the courts may admit statements from an out of state complaining witness made to police officers.  This would make it possible for the case to proceed without the individual showing up to court  Thus, the legislature and courts have ruled that hearsay may be used at a preliminary hearing to make out a prima facie case against the defendant.

Hearsay Alone is Not Enough

However, hearsay alone without other evidence is not enough to make out a case at a preliminary hearing.  The problem arises when the state tries to prove their case with nothing but hearsay.  In Commonwealth v. Ricker 2017 Pa. Lexis 2289, The Supreme Court dismissed an appeal on this basis.  The Court hesitated to rule that hearsay alone is sufficient to prove a prima facie case at a preliminary hearing.  What this means, is that the Commonwealth probably needs some additional evidence beyond mere hearsay to get past a preliminary hearing.  In Ricker, the appellant argued that if hearsay alone was sufficient a preliminary hearing would become, “a meaningless proceeding… where the prosecution could simply call the affiant to the stand and read from the criminal complaint.”  The Supreme Court seemed to reluctantly accept this argument in dismissing the appeal.  What this means is that witnesses and/or physical evidence is probably necessary to make out a prima facie case against a defendant, even at the preliminary hearing level.  Therefore, the government may use hearsay to prove its case, but probably not only hearsay.  Some additional evidence should be presented to the court.

Defending Criminal Hearsay Charges

It is important to remember that if the case proceeds to trial then the hearsay may be inadmissible.  The government cannot use hearsay at trial unless an exception exists.  Therefore, just because hearsay was used at a preliminary hearing does not mean it can be used later.  If your case involves out of court statements being used to prove the truth of the matter, speak with a lawyer.  This evidence may be excluded at your trial.  If this is the only evidence presented at a preliminary hearing, the case should also be dismissed.