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Tampa Family Lawyer > Blog > Criminal > How The Hearsay Rule Applies To Expert Witnesses In Criminal Trials

How The Hearsay Rule Applies To Expert Witnesses In Criminal Trials


As a general rule, hearsay is not admissible as evidence in a Florida criminal trial. The technical definition of hearsay is an “out-of-court statement offered to prove the truth of whatever it asserts.” For instance, if a witness testifies that the defendant told them they had committed a robbery, that would be an admissible statement. But if the witness said, “I overheard the defendant tell someone else they committed a robbery,” that would be inadmissible hearsay.

Appeals Court Rejects Child Pornography Conviction Due to Failure to Identify Source of Image

Hearsay can also apply to expert testimony. Indeed, the Florida Second District Court of Appeal recently reversed part of a criminal conviction because an expert witness improperly offered hearsay to validate a key piece of evidence introduced by the prosecution.

This particular case, Queen v. State, involved child pornography. More specifically, the state charged the defendant with 300 counts of possession of child pornography. The case was tried before a judge sitting without a jury. (A criminal defendant always has the right to waive a jury trial.) At trial, the prosecution called an expert witness, a digital forensic technician who analyzed the 300 alleged digital images of child pornography found in the defendant’s possession.

The expert analysis relied on “hash values.” These are alphanumeric values generated by computer files. Every file generates a unique hash value, which makes it somewhat akin to a human fingerprint.

As relevant to this case, the National Center for Missing and Exploited Children (NCMEC) administers a database containing the hash values of “confirmed images of child pornography.” Law enforcement agencies commonly rely on this database to identify images of child pornography. The expert witness here testified that “the hash values of each of the 300 hundred images discovered on [the defendant’s] devices matched a hash value” previously stored in the NCMEC database.

The defense objected to this testimony, arguing it was hearsay, since the expert could not personally verify the images in the database were actually child pornography. The trial judge overruled the objection. At the conclusion of the trial, the judge found the defendant guilty of all 300 counts of possession of child pornography and imposed a sentence of 145 years in prison.

On appeal, the Second District reversed 1 of the 300 convictions, agreeing with the defense that part of the expert’s testimony did in fact constitute inadmissible hearsay. The issue with this particular image, the appellate court explained, was that it was submitted by an unknown individual to the database. In other words, there was no way to verify the image in question depicted an actual child being exploited, since the person who made that determination never testified. The expert did not make that determination; he simply asserted that this other unknown person did. The Second District said that was insufficient–hearsay is not admissible simply because the prosecution insists it came from a “trustworthy source.”

Speak with a Florida Criminal Defense Attorney Today

When you are trial for a serious crime–especially a sexually related offense–it is crucial the state be strictly held to the rules governing the admission of evidence. A qualified Tampa criminal lawyer can help ensure the courts respect your rights in this area. Contact the Faulkner Law Group, PLLC, today if you need to speak with an attorney right away.



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