April 25, 2018 – Felony drive by shooting case dismissed after an intense preliminary hearing. The prosecutor tried to use the hearsay statements of the other passengers in the car implicating Joe Welch’s client but he successfully argued that the judge shouldn’t consider those statements because they violated the defendant’s right to confront and question the witnesses in open court, witnesses who had a motive to lie and implicate the defendant in order to avoid being suspects in the shooting themselves.

The Confrontation Clause of the Sixth Amendment says that there’s no hearsay allowed in criminal cases, but what does that mean exactly and why is it important? Hearsay is like when an eyewitness Bob is in the car with the alleged shooter and supposedly sees the whole thing happen. It wouldn’t be hearsay or a “confrontation” problem if Bob were to testify in court – the prosecutor can call Bob as a witness and ask him about what he saw, and the defense can then “confront” him in court and question him about what he saw, how he saw it, and why he might be mistaken or lying about it.

However, the prosecutor can’t just skip calling Bob as a witness and instead just ask the cop who interviewed Bob what it was that Bob said – that’s hearsay, and it’s problematic in any kind of case, but in criminal cases it violates the Confrontation Clause of the Sixth Amendment because it deprives the defense the ability to question Bob about it.

In our case the prosecutor tried exactly that – they didn’t have Bob there to testify but they asked the police officer what Bob told them, and supposedly Bob told the officer that my client was the one who fired the gun from the car. I objected because Bob wasn’t there for us to question – what if Bob was lying? What if Bob was lying because Bob was the real shooter and he was trying to pin it on my guy? Or what if he was just angry at my client and trying to get him in trouble? Or what if Bob was tripping and had no idea what was really happening?

The Confrontation Clause says that Bob has to be there in person to testify so we can confront him and ask him about these things – about his motive to lie, about his ability to understand what was going on, and that we get to cross examine him in person in court. The Confrontation Clause doesn’t allow the prosecutor to just skip calling Bob as a witness and have someone else, the cop in this case, testify to the hearsay statements of what Bob supposedly told him.

Often in preliminary hearings judges try to ignore the Confrontation Clause and prosecutors try to claim that hearsay is ok in preliminary hearings. But that’s wrong –RSMo. 544.280 says that the “order of trial” meaning how witnesses and evidence are handled in preliminary hearings shall be the same as in criminal trials, meaning the accused has the right to confront and cross examine all the witnesses. I objected “confrontation!” when it seemed like the judge was going to consider the officer’s version of what Bob had supposedly said to him and use it against my client. I reminded her that this is exacxtly the reason why confrontation is important, because Bob could have just easily been the one who pulled the trigger and maybe he had the motive to lie about my guy shooting in order to protect himself. Or maybe he was just mad at my guy and was trying to get him in trouble? Or maybe the cop pressured him, told him that he’d go to jail or he’d lose his kids or they’d beat him if he didn’t say my guy did it? Or maybe Bob was tripping and had no idea what was really happening?

The judge took my objection to heart, and unlike in the previous preliminary hearing that day where she had allowed hearsay against someone else, she disregarded the officer’s version of Bob’s story and dismissed my client’s shooting case on the spot.