Crowley v. State

¶1concurring:

¶2I concur with the result reached by the majority in this appeal. I write separately to note my view that, separate and apart from the majority’s analysis of NRS 51.035(2)(a), admission of Mrs. Crowley’s out-of-court statement to Dot Brownfield, the Division of Child and Family Services investigator, did not violate the basic prohibitions against admission of hearsay evidence.

¶3“Hearsay,” as defined in the Nevada evidence code, “means a statement offered in evidence to prove the truth of the matter asserted [in the statement].”1 Thus, aside from NRS 51.035(2)(a), which defines prior inconsistent statements of a testifying witness as “non-hearsay,” Mrs. Crowley’s out-of-court statements to Ms. Brownfield would technically fall within the statutory definition of hearsay. In my view, notwithstanding the statutory definition, any out-of-court statement is admissible as “non-hearsay” when the hearsay declarant appears in court and subjects himself or herself to confrontation by the parties.

¶4To explain, the traditional formulation of the hearsay rule is more elaborate than the simple statutory formulation embraced by the Nevada Legislature in NRS 51.035. Under the traditional formulation, hearsay is an out-of-court statement offered to prove the truth of its contents, the probative value of which is dependent upon the credibility of a witness that cannot be cross-examined.2 By way of history, while the short formulation was adopted for ease of use in the courtroom, the traditional formulation has never been *37abandoned as a real matter because the essence of the hearsay rule is the guarantee of due process confrontation of witnesses.3

¶5Here, Mrs. Crowley was in court, was competent to testify, and was subject to cross-examination. The right of confrontation inherent in the hearsay rule was thus not violated. Accordingly, I would hold that no substantive hearsay violation occurs when the hearsay declarant is in court and subject to cross-examination.