The hearsay rule: How it helped Roberto Miramontes Roman, who was acquitted of murder

Sentencing Wednesday on lesser charges in death of deputy

Published: Tuesday, Oct. 23 2012 7:00 p.m. MDT

It was a unique challenge, but not one that is unheard of and Finlinson had a strategy to combat it. He planned to allow Roman to make statements on the stand that he felt were "clearly hearsay" evidence, which he hoped would "open the door" so that the judge would then allow Finlinson to rebut Roman's testimony with other hearsay evidence — a written statement Ryan Greathouse had given to police.

"That was part of the strategy — listening closely to any hearsay statement to get the rest of the (Ryan Greathouse) statement in," Finlinson said. "We intentionally allowed Roman to make hearsay statements regarding what Ryan Greathouse said and argued that they had opened the door. Our argument was that they opened the door, so we thought we would be able to get all of Ryan's statements in. We thought that would be tremendously helpful."

But defense attorneys Steve McCaughey and Jeremy Delicino objected to the admission of the Ryan Greathouse statement, arguing that it was hearsay and conflicted with the confrontation clause — a defendant's right to confront and question witnesses against them.

Finlinson countered that the door on the subject had been opened because of Roman's testimony and that that warranted allowing Ryan Greathouse's statement to the jury, even though he was no longer available to be questioned by the defense. Exceptions to the rule can sometimes be granted when a witness is unavailable.

The judge sided with defense attorneys and ruled the majority of the statement was inadmissible. He told prosecutors that if they had objected to Roman's statements that they believed contained hearsay while he testified, he wouldn't have allowed them.

"What ended up happening was, because we didn't object, we allowed him to make those statements," Finlinson said. "The only part of Ryan's statement that came into the case were the parts that hurt us, not the rest of it. Ninety percent of Ryan's statements were completely consistent with our theory and inconsistent with the new version, Roman's version of the story."

The decision to keep the statement out of the trial appeared to be a crucial one after jurors reported that the lack of evidence about Ryan Greathouse made it difficult to convict Roman "beyond a reasonable doubt."

Fox's family felt the judge's ruling decided the case and said as much in a strongly worded statement issued by Fox's father, Russell Greathouse.

"The one decision that had the biggest impact on the trial was the exclusion of all of Ryan’s sworn written statements," Greathouse wrote. "Judge Eyre was wrong in every sense and shouldn’t have suppressed it when there was no legal justification for that decision."

In response to the statement, the judge's brother, Brent Eyre, wrote an email to the Deseret News defending his brother and his decision and suggested that prosecutors could have done more while cross-examining Roman to question his narrative of events. Brent Eyre declined to be interviewed on the matter.

But both the family and Finlinson ultimately said the jury had heard enough evidence to convict with or without the statement.

"We still basically presented our case," Finlinson said. "That didn't make or break the case. There were a lot of people who were really upset with Judge Eyre. I felt like the jury still had enough evidence."

What is hearsay?

Former 3rd District Judge Robert Hilder said hearsay is an ancient and complicated principle of law. In its most basic form, it's "an out of court statement offered for the truth of the matter."

"That's the actual definition and that's a pretty simple issue, of course, but it's not," Hilder said. "It's full of exceptions. It's full of things that sound like they're hearsay, but they're not."

Whether certain statements can legally be allowed into a trial depends on when something was said, to whom it was said and under what settings and circumstances it was said. There are also some exceptions when hearsay evidence can be allowed in a trial, such as a deathbed admission. Though the person may now be dead, Hilder said, there is a certain allowance given for these statements because it is believed the fear of God prompts people to tell the truth. 

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