Sherman & Plano, TX Criminal Defense Lawyer Blog

Mr. Prosecutor keeps looking through the rule, knowing something in there should save Mr. Manziel from getting a separate trial. “Here it is,” he says to himself. Rule 803(24), Statement Against Interest: “[a] statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” We find people’s statements that subject themselves to ridicule or liability believable, hence the exception. “Statement against interest, your honor,” says Mr. Prosecutor. “The statement to the reporter subjects the reporter to criminal liability.”

“Let me see your corroborating circumstances,” replies the judge. The prosecutor starts placing into evidence (outside the jury’s presence) the eBay account of the Autograph Broker, the video the witness claims to have (if it exists), and other evidence. “Admissible as to the Autograph Broker, but you already have that,” the judge rules.

“But judge,” snaps the prosecutor, “the rule doesn’t require corroborating circumstances for admission against Mr. Manziel,”

The prosecutor, frustrated that an extra trial might interfere with his upcoming vacation plans, digs through the rules to somehow admit this evidence without allowing Mr. Manziel to force a separate trial. The judge, having similar vacation plans and not wanting to spend county resources empaneling another jury, looks at him. “Any other exception, Mr. Prosecutor?”

The prosecutor says “crap” to himself, which brings back “KRAP” from his bar review, which stood for something. He hurriedly looks to see if the statement and the purported video he desires to play can come in. The witness previously told him he had a video of Johnny Manziel signing autographs, and he fingers through the rule to the 803(6), the business records exception which reads: “[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. ‘Business’ as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.” Well, that might work for the video, as autograph brokers keep videos to prove the authenticity of the autograph, but that doesn’t help him with the statements of the broker to the reporter.

Rules 801 and 803 provide what is non-hearsay and what are exceptions to hearsay. The prosecutor says, “[a]dmission by a party opponent or coconspirator, your honor.” The autograph broker’s lawyer glances down at Rule 801(e)(2) which says, “[a] statement is not hearsay if…The statement is offered against a party and is: (A) the party’s own statement in either an individual or representative capacity; … or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.”

The judge, having not looked at the coconspirator rule for a while, rereads it and says, “Sustained as to Mr. Manziel. Although the statement might be one of a coconspirator to the crime of committing NCAA violations, the statement was not made in furtherance of any conspiracy. However, it is admissible as to Mr. Autograph Broker because they are his own words and offered against him.” Mr. Manziel wipes his forehead and looks at his lawyer. But, since your one’s own statements to any witness are admissible against you at a trial against you under 801, Mr. Autograph Broker is behind the 8-ball and his lawyer knows it.

“Your honor, at this time I move for severance of this trial,” says Johnny Manziel’s lawyer. Since these statements incriminating Mr. Manziel are admissible only against his codefendant, Mr. Manziel is able to sever (get a separate trial) under the Bruton rule. Otherwise, Mr. Manziel’s right to cross examine his accusers (those making the statement) would be violated by not being able to cross examine the declarant of the admissible hearsay statement, Mr. Autograph Broker. Mr. Autograph Broker can assert his right to remain silent, thus violating Mr. Manziel’s right to confrontation.

First, the right of confrontation would require the ESPN reporter to be on the stand to testify as to his knowledge. So, imagine in a criminal court Johnny Manziel and the autograph broker were being tried for violating NCAA rules or inducing said violations? There they sit with their lawyers at the defense table. The prosecutor asks the ESPN reporter, sitting on the witness stand, “Mr. Rovell, please tell the ladies and gentlemen of the jury what this autograph broker told you he did with Johnny Manziel.”

“Objection” says Manziel’s defense lawyer. “Hearsay.”

The objection is sustained as to him. What Mr. Rovell heard the autograph broker say is a statement made out of court and offered for the truth of the matter asserted (by the statement). The prosecutor would have two options: 1) move on, or 2) try to find a hearsay “exception” to get the statement into evidence. If he is a cunning prosecutor with lots of experience backdooring evidence, he says to the judge, “I offer the evidence only for its effect on the listener and the reason this witness took further steps in his investigation.” The defense attorney, knowing the evidence is being backdoored in to prejudice the jury and not really to help them understand the effect on the listener, can hopefully get the judge to shut it down. Under Texas law, however, hearsay can be admissible for the “limited purpose” of showing not the truth of the matter asserted, but that the witness was told the information and took further action in response. However, the judge does not appreciate the move and blocks it. What can the prosecutor do now?

The rule against hearsay is one of the fundamental rules of the American justice system. It is very similar, although not completely identical, to the rule requiring confrontation of witnesses in a criminal case, i.e., the right to confront one’s accusers. Our nation’s founders were very disturbed at English prosecutions, such as that of Sir Walter Raleigh, based primarily upon letters from third parties as key evidence. Common sense also dictates that a person telling you what they heard another person say, as if they had observed the events personally, is not in any way as reliable as a first-person recollection of events. Texas Rule of Evidence 801(d) states: “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 802 says “Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority…”

So why did I put Johnny Manziel in the title other than a selfish desire for internet search-ability? Because the Johnny Manziel case as we know it is pure hearsay on many levels. A junior reporter (Darren Rovell) at ESPN claims he talked with an autograph broker who said Johnny Manziel autographed numerous items for him in a single setting. The same reporter says he saw a video of Johnny Manziel signing numerous items (though we haven’t seen the video). So why can’t the reporter’s article simply be admitted in court as proof that Johnny Manziel signed numerous items in violation of an NCAA rule? Or, what if the case were brought in a Texas criminal court, due to the fact that certain NCAA violations (recruiting violations) actually can be criminal activity in Texas?