On Thursday I heard a portion of the arguments from both sides concerning testimony about what a New Jersey State Trooper said to the grandfather of the accident victims when he rushed to the scene. Apparently he testified that an officer told him the victims were “not his children.” The defense objected to the hearsay as prejudicial to Trooper Higbee. The prosecution asserted that the testimony was not offered “for the truth of the matter,” but for the witness’s “state of mind” and to explain the witness’s subsequent actions. The judge sided with the prosecution, I believe, pending a more detailed discussion on Monday.

I’ve written about hearsay evidence before and expressed my opinion that it is rightly excluded—frankly, under all circumstances. As a juror, I can understand when testimony isn’t offered “for the truth of the matter.” But I doubt (reasonably) whether hearsay ever tells a jury anything about anyone’s “state of mind.” In this situation, the only justification I can see for the judge allowing the testimony is to explain why the grandfather left the scene after that and went to pray in a church.

However, the grandfather’s actions are not at issue in this trial. Trooper Higbee’s are.

The judge also said he couldn’t understand how the testimony might prejudice the jury. Well, I can.

The Higbee jury may reasonably infer that the officer on the scene intentionally misled the grandfather in order to cover up for Trooper Higbee. This is incredibly prejudicial.

In fact, it seems so prejudicial to me that I think it ought to be grounds for a mistrial. I repeat: I am not a lawyer. I am not a judge. But I am a former juror.

Jurors are generally wary of police abuses of power. Jurors will hear the undertone in this testimony that the grandfather believes he was intentionally lied to. And frankly, it even sounds that way to me. I can’t believe that the officers on the scene still did not know to whom the vehicle in which the victims were riding belonged—it belonged to the grandfather.

As I heard the arguments about this issue on Thursday I kept waiting to hear the defense attorney say that it made the police appear to be covering up for something, and if they thought there was something to cover up, then the jury is likely to think so, too.

It was an example of poor rhetoric in court—something that happens all the time, I believe. Lawyers (including judges) get caught up in legalese and “truths of the matter” and “states of mind” and seem to lose complete sight of what they are really talking about.