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March 11, 2007


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Is the Pabon panel confusing something that is "testimonial" in the sense of being a response to police interrogation and a potentialy valid subject for both a Mapp and a Huntley hearing with "testimonial" in the sense of Crawford?
More importantly the act of handing over is not hearsay.
You're right, the decision is brief, but I don't think its all that informative.


I'd respectfully disagree re: whether it was hearsay, Slick. I pulled out my trusty evidence outline from law school and would note the following from the hearsay definitions section of that outline: "Statement--conduct, either verbal or non-verbal, that is intended as an assertion."

That's under the fed. rules, but I can only assume from the 3d Dept's decision that there is NY case law to that effect as well. (Perhaps I'll jump on Westlaw in a minute to confirm.)


Here's the relevant NY law:

People v. Caviness
38 N.Y.2d 227, 342 N.E.2d 496
N.Y. 1975

Hearsay, the exclusion of which is perhaps the best known feature of Anglo-American law (Fisch, New York Evidence, s 756), has been subjected to a variety of definitions. Rule 63 of the Uniform Rules of Evidence, approved by the American Law Institute and American Bar Association, defines hearsay evidence as ‘(e)vidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated.’ This enunciation must be read in connection with the connotation accorded to ‘statement’ in rule 62, that it ‘means not only an oral or written expression but also non-verbal conduct of a person intended by him as a substitute for words in expressing the matter stated’ (Comment, Uniform Rules of Evidence, rule 63), and follows Wigmore in defining hearsay as an extrajudicial statement **499 which is offered to prove the truth of the matter stated (5 Wigmore, Evidence (3d ed), s 1361; see, also, Richardson, Evidence (Prince-10th ed), s 220; McCormick, Evidence (2d ed. s 245, p. 584; 1 Mottla, New York Evidence, s 187; Morgan, Hearsay and Non-Hearsay, 48 Harv.L.Rev. 1138, 1144).


Yes - a communicative gesture can be hearsay. Handing over an item is not necessarily a "gesture" or communicative.

However, rereading the opinion, it looks like there was some oral communication that accompanied the handing over that was wrongly elicited and accepted as testimony - most likely the content of the officer's question or possibly something the possessor said when handing it over.

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