Any  Law & Order fan knows something about hearsay, even if he can't define it precisely. But hearsay rules were front-and-center in a real-life courtroom drama - one of life, death and murder. And the drama shows how the rules work, and how they've changed.

From the Grave

In 1998, Wisconsin man Mark Jensen was found guilty of murdering his wife, Julie, in 1998. Several weeks before her death, Julie talked to local police, her son's teacher, and a neighbor, and told them she suspected her husband was planning to kill her. She even gave her neighbor a sealed letter explaining her suspicions. She asked the neighbor to give the letter to the police if anything happened to her.

Something did happen to Julie. On December 3, 1998, she became ill and was taken to bed. She was found dead later. Prosecutors claimed her husband fed her ethylene glycol - the sweet but poisonous liquid used as antifreeze. He then may have used a pillow to smother her when she began recovering from the poisoning.

In his defense, Mark Jensen claimed his wife was depressed and angry because he was having an affair. She searched the internet on poisoning on the family computer to frame him. Her poisoning was a suicide, he claimed.

At trial, prosecutors wanted to use Julie Jensen's statements to speak as a voice from the grave to prove Mark murdered her. But first, they had to convince the courts to let them.

Constitutional Right to Face Accusers

The Federal Rules of Evidence define hearsay as 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.

In plain English, it means, in a criminal trial:

  • If a statement ("My husband is trying to kill me")
  • Made out of court (like in a letter to the police)
  • Is being used to prove the truth of the statement itself (Mark wanted to kill Julie)

Then the person who made the statement (Julie Jensen) must:

  • Make the statement under oath
  • In front of the judge and/or jury, and
  • Consent to be cross-examined by the other party

The hearsay rules are rooted in the Sixth Amendment to the US Constitution. It gives criminal defendants the right to face their accusers in court.

In the Jensen case, none of the 20 or so hearsay rule exceptions applied to Julie's statements. So, because Julie couldn't repeat the statements in court and under oath, and couldn't be cross-examined by her husband's lawyers, the statements couldn't be used against Mark. Or could they?

New Rule

A 2004 US Supreme Court case changed how hearsay statements can be used in criminal cases. The Court decided that defendants have additional protections if the hearsay evidence is testimonial or accusatory in nature. If it is, the defendant must be given the opportunity to face his accuser.

This case changed the hearsay standards used for nearly 25 years. After the Court's decision, a Wisconsin county judge ruled that Julie Jensen's letters and voicemail messages left for police couldn't be used against Mark Jensen.

Finally, in 2007, the Wisconsin Supreme Court ruled that Julie's letter to police could be used if prosecutors could show Mark Jensen murdered his wife, making it impossible for him to face her in court. It based its decision on the doctrine of forfeiture by wrongdoing. Basically, Mark Jensen forfeited his Sixth Amendment right to face his accuser because he made it impossible for her to testify in court.

It also ruled that Julie Jensen's statements to her neighbor and son's teacher weren't testimonial in nature, so they could be used, too.

In the wake of the Supreme Court's 2004 case, courts and lawyers are re-examining the hearsay rules, and how they're used in criminal cases.

Questions for Your Attorney

  • Can a spouse be forced to testify against his spouse?
  • If Julie Jensen had videotaped herself saying her husband was planning to kill her, could that have been used as evidence against him?
  • What can I do if my lawyer didn't stop the prosecution from using hearsay evidence against me?