Addressing Hearsay and Fifth Amendment Issues in Sensitive Criminal Cases

Facing criminal charges is a daunting experience, and the legal complexities that accompany such cases can be overwhelming. In this blog post, we delve into a recent Arizona judicial opinion involving a child pornography case, shedding light on the difficulties presented by hearsay and the challenges of calling witnesses who invoke the Fifth Amendment. The recently decided case provides valuable insights into the importance of retaining a qualified criminal defense attorney to assist with lodging a robust defense.


On November 17, 2016, the State of Arizona charged the defendant with ten counts of sexual exploitation of a minor, primarily based on materials found on a computer in his home. The defendant asserted a third-party culpability defense, alleging that an acquaintance who was frequently present in his home, had used his computer to download the incriminating material. As part of the defendant’s defense preparation, an investigator was hired by the defendant to interview a former housemate of the defendant, who could potentially corroborate the third-party culpability defense.

The Challenge of Hearsay

One of the significant hurdles in the defendant’s defense was the admissibility of his former housemate’s statements, which were considered hearsay. Hearsay is generally not admissible in court unless specific exceptions apply. In this case, the court focused on the hearsay rule, particularly Rule 804(b)(3), which allows for the admission of hearsay if the declarant is unavailable and the statement is against their interest, supported by corroborating circumstances indicating trustworthiness.

The Housemate’s Evolving Statements

The housemate’s statements were crucial to the defendant’s defense, but they evolved during the course of the investigation. Initially, he mentioned witnessing explicit material on the defendant’s computer, but he later provided inconsistent details about the nature of the content. The State moved to preclude his testimony, citing hearsay and irrelevance, arguing that Steele had never seen Wheeler inside the defendant’s residence or using the defendant’s computer.

Fifth Amendment Invocation

As the case progressed, the housemate invoked his Fifth Amendment rights, rendering him unavailable as a witness under the hearsay rule. The defendant intended to call the investigator as a witness to testify about statements made by the housemate during interviews. However, the court granted the State’s motion to preclude the investigator’s testimony, citing insufficient corroborating circumstances to indicate the trustworthiness of the housemate’s statements.

The trial court’s decision to exclude the investigator’s testimony was grounded in the discretion afforded to trial judges in assessing the admissibility of evidence. The court determined that Steele’s statements lacked the necessary self-inculpatory nature and supporting corroborating circumstances essential for their admission under Rule 804(b)(3).

Ultimately, the defendant’s conviction was upheld for sexual exploitation of a minor, highlighting the challenges associated with presenting a third-party culpability defense when key witnesses invoke the Fifth Amendment. This case serves as a reminder of the intricacies involved in criminal defense strategies and the importance of understanding evidentiary rules, particularly in navigating issues related to hearsay and witness testimony. For clients seeking a criminal defense attorney in Arizona, awareness of such complexities is crucial in ensuring a comprehensive and effective defense strategy.

Are you Facing Criminal Charges in Arizona?

If you or someone you know is facing criminal charges in Arizona, retaining an experienced Arizona criminal defense attorney can help you ensure that exculpatory testimony won’t be excluded from the proceedings against you. The qualified Arizona criminal defense attorneys with the Law Office of James E. Novak understand the intricacies of hearsay and evidentiary rules, and with our help, you can be confident that your case will be handled competently. We represent people charged with all types of Arizona crimes, including sex offenses. To schedule a complimentary consultation to discuss your case, call 480-413-1499.

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