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Second-hand “hearsay” evidence could not support drug charge indictment

Prior to a trial, the state may seek an "indictment" against a defendant. A special jury, called a grand jury, determines if there is enough evidence to show the existence of probable cause that a defendant committed a crime. This process does not convict a defendant. Rather, it is an accusation which, if a person is indicted, can lead to a trial.

Most rules of evidence apply to grand jury proceedings, such as the "hearsay rule"-that is, the rule that a statement made by someone other than a witness cannot be simply repeated by another person as evidence against the defendant.

Therefore, if an indictment, say, for drug charges, is based on hearsay evidence, the indictment must be dismissed by the court prior to a trial, as happened in the recent Clinton County Court case of People v. Hardy.

An investigation and a search

A Plattsburgh police officer testified before the grand jury that a wiretap investigation of another individual identified the defendant as involved in drug transactions. In addition, the officer claimed a confidential informant had text messages from the defendant, and that yet another individual had removed an item from the engine compartment of a vehicle and taken it into a building where the defendant had an apartment. Finally, in searching the defendant’s apartment, the police discovered over five pounds of marijuana.

The defendant was indicted by the grand jury for felony possession of marijuana. The defendant entered a motion to dismiss the indictment for insufficient evidence.

Was the officer’s testimony admissible?

The court determined that much of the presentation to the grand jury consisted of inadmissible hearsay evidence.

For example, actual proof showing that the other wiretapped individual had mentioned the defendant was never placed into evidence. The officer merely reported these allegations, even though he never stated he overheard these conversations himself.

Likewise, the officer only had photographs of the purported text messages on the informant’s cell phone. No testimony showed the officer participated in the text message conversations or witnessed the exchange of text messages. The officer had no personal knowledge that the text messages actually were sent by the defendant. Even the testimony related to an individual taking an object from an engine compartment was witnessed by an officer who was not present at the grand jury proceedings.

In addition, the testifying officer provided no basis for his knowledge that the residence searched belonged to the defendant at all, and he had never observed the defendant entering or leaving the apartment. The officer who testified did not appear to have any personal knowledge that the defendant resided there.

Excluding all of this inadmissible hearsay evidence, there was insufficient evidence to establish the key elements of the crime, and, therefore, the defendant’s motion to dismiss the indictment was granted.

A vigorous defense

If you are charged with a drug crime, you may decide to enter plea negotiations or to fight the case in court. If you decide, with advice of counsel, to fight the charges, you need an experienced criminal defense attorney who will vigorously defend you at every stage of the proceedings