On “reliable hearsay” in Parker/Rollerson

Hearsay is presumptively unreliable.  That is why the law makes it so difficult to introduce hearsay into evidence.   

McCormick on Evidence § 244 refers to the “tale of a tale.” With the out-of-court witness not under oath and not subject to cross-examination, the major problem with this “story out of another man’s mouth” is that the party against whom the evidence is offered is unable to challenge the witness’ “perception, memory, narration, and sincerity.”

To refer to “unreliable hearsay,” therefore, sounds redundant.  “Reliable hearsay” sounds like an oxymoron.

In fact, there are degrees of reliability.  Many of the hearsay exceptions are based on indicia assuring the reliability of the statement.  The “excited utterance” exception, for example, is based on the assumption that a statement that is made spontaneously, under stress and without the opportunity for reflection will be trustworthy. 

And, of course, hearsay is better than double hearsay.  And double hearsay is better than triple or quadruple hearsay. 

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“Trustworthy hearsay” is admissible at preliminary hearings and suppression hearings to support a finding of reasonable suspicion or probable cause.

At the same time, hearsay testimony may be “too unreliable and uncertain to support” such a finding.  So held the D.C. Court of Appeals in In re K.H., 14 A.3d 1087, 1091 (D.C. 2011). 

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The D.C. Court of Appeals dealt most recently with the issue of “trustworthy” or “reliable hearsay” in DeAngelo Parker/Delonta Rollerson v. United States, __ A.3d __ (D.C. 2025).  This time, however, it came to a different conclusion than in K.H.

At the suppression hearing in a gun case, the government called a detective to testify to the circumstances surrounding the apprehension of the two defendants.

The detective played no role at the crime scene.  He had not even been present. His testimony instead was based on the police paperwork and his conversation with another detective who also had not been present during the most relevant portion of events.

In other words, the trial court based its denial of the motions to suppress on hearsay, double hearsay and even triple hearsay. 

The majority opinion, written by Judge Anthony Epstein, goes to great lengths to affirm the trial court’s denial of the motion to suppress.  The timing and place of the stops, the fact that the two defendants appeared to be hiding at the time, and the existence of a police perimeter that would have limited the number of suspects all supported the trial court’s conclusion that the seizures were based on the requisite reasonable suspicion. 

The problem is that the majority’s reasoning was based on unreliable hearsay.  The detective who testified had no first-hand knowledge of anything, thereby preventing the defendants from probing the accuracy of his testimony.  A sharply worded dissent by Judge Beckwith notes the numerous times the detective answered on cross-examination that he did not know or was not sure. 

Stressing the importance of cross-examination, Parker’s trial counsel noted that it is “incredibly difficult to get to the truth to actually probe these issues as to see, really, what was going on, what really happened that day when you have somebody who only heard bits and pieces.”

Beckwith’s dissent conceded that hearsay is generally allowed at pretrial hearings on the admissibility of evidence, including suppression hearings:  “To be sure, our cases do not preclude the government from offering such an unusually truncated and potentially incomplete version of the facts of a seizure based on double (or triple or quadruple) hearsay without evidence of the identity of anyone with personal knowledge.”

But, the dissent noted, “the fact that evidence is admissible at a suppression hearing does not mean it is sufficient to justify a search or seizure in the absence of an identified source with personal knowledge.” 

The defendants “had no way to impeach [the detective] and ‘get to the truth’ of ‘what really happened that day’ when [the detective] was not present at the event he was describing and had ‘only heard bits and pieces’ from another person who also lacked personal knowledge of the seizure.”

“Cross-examination ‘is the principal means by which the believability of a witness and the truth of his testimony are tested,’ Coles v. United States, 36 A.3d 352, 356 (D.C. 2012) but [the detective’s] unfortunate distance from the event about which he was testifying made it all but impossible to nail down and scrutinize his account.” 

The trial court’s denial of the motion to suppress should have been reversed.

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Former chief judge Anita Josey-Herring presided at trial.  Mr. Parker was represented at trial by Lloyd Malech and on appeal by Cecily Baskir.  Mr. Rollerson was represented at trial by Thomas Lester and Kanita Williams and by Tom Engle and Sharon Burka on appeal.