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Ortiz statement to police raises several hearsay questions

Ortiz AP

It’s one thing for police to have statements from Carlos Ortiz that can be used to support the issuance of a search warrant.  It’s quite another to be able to use those statements at trial.

Many of you instantly recognized that Ortiz’s explanation to police that Ernest Wallace told Ortiz that Hernandez told Wallace that Hernandez shot Odin Lloyd entails multiple levels of hearsay.

Let’s start this foray into trial procedure by assuming Ortiz will testify in the prosecution of Hernandez.  Would testimony from Ortiz that Wallace said Hernandez said he shot Odin be admissible?

As the case often is with matters that eventually will be decided by a judge, the answer is “maybe.”

Hernandez’s statement falls within the exclusion to the definition of hearsay, since the statement (“I shot Lloyd”) is being used against Hernandez.  But Hernandez said it to Wallace, not to Ortiz.  So when Wallace tells Ortiz that Hernandez told Wallace that Hernandez shot Lloyd, it potentially becomes hearsay.

Actually, there’s a chance that Wallace’s connection to Hernandez brings the entire statement within the exclusion to the hearsay rule.  Section 801(d)(2)(E) of the Massachusetts Rules of Evidence says that “[a] statement of a coconspirator or joint venturer made during the pendency of the cooperative effort and in furtherance of its goal when the existence of the conspiracy or joint venture is shown by evidence independent of the statement.”

In English, this means that if the effort to kill Lloyd and clumsily cover it up became a joint venture between Wallace and Hernandez, anything Wallace says about the joint venture isn’t hearsay.  The pressure point would be whether telling Ortiz that Hernandez said he shot Lloyd constitutes a statement made “in furtherance of [the] goal” of the joint venture.

Coincidentally, Bristol County, Massachusetts District Attorney Sam Sutter recently used the term “joint venturer” when discussing the situation.

Another level of hearsay arises if, for whatever reason, Ortiz doesn’t repeat what he said to police in court.  His own statements to investigators, made out of court and without an opportunity by Hernandez’s lawyer to cross-examine him, also become hearsay — unless it’s determined that he’s another “joint venturer,” even though his agenda on the night in question appeared primarily to be sleep.

Complicating matters in this context is the Confrontation Clause of the Constitution, which gives a criminal defendant the right to interrogate anyone giving testimony against the defendant.  The statements Ortiz made to police about the events of the evening and Wallace’s comments about Hernandez’s confession are more likely to be admissible if Ortiz is not available to testify at trial; one issue that would need to be researched under Massachusetts law is whether invoking the Fifth Amendment right against self-incrimination makes the witness unavailable.

In the end, the judge presiding over the case will have to decide whether to allow the statement in to evidence.  Factors that shouldn’t matter but that definitely will include whether the judge believes based on all of the other evidence that a conviction is likely without the statement being admitted.  Since allowing the statement to go to the jury could be what lawyers and judges call “reversible error” (in English, grounds for overturning the conviction on appeal), there’s no reason to do it if the evidence otherwise appears to be overwhelming.

It’s a very common dynamic at trial.  If, all of a sudden, one side starts winning all of the evidentiary rulings, it’s a strong clue that the judge thinks the other side is poised to win the case.  For Hernandez, despite the information made available to the media, it’s still way too early to tell how this one would play out in a court of law.

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59 Responses to “Ortiz statement to police raises several hearsay questions”
  1. green41563 says: Jul 12, 2013 12:05 AM

    Who cares? The other circumstantial evidence of his guilt is so overwhelming that the admissibility of Ortiz’s statement won’t matter.

  2. pinion8ted says: Jul 12, 2013 12:06 AM

    Or Wallace could be enticed to testify first-hand that Hernandez did in fact admit shooting Lloyd to him.

    No longer a matter of “hearsay” ……

  3. stlunatik says: Jul 12, 2013 12:12 AM

    FREE HERNANDEZ!

    FREE ZIMMERMAN!

  4. steviemo says: Jul 12, 2013 12:16 AM

    Odin’s text messages on the way to his execution certainly weren’t hearsay.

  5. thestrategyexpert says: Jul 12, 2013 12:19 AM

    Ortiz could be a stooge wrench maliciously placed to disrupt the flow of the case thus immunizing all responsible parties.

    Computer, estimate odds of a massive system failure and internal collapse…

    Reply: Do…you… really… have… to… ask?

  6. jackdaniels1 says: Jul 12, 2013 12:20 AM

    OK, so we can expect to see back on the field around week 8 in say a Jaguars or Browns jersey? Cool, I think

  7. gochargersgo says: Jul 12, 2013 12:20 AM

    Hernandez deleting his surveillance footage and being uncooperative is literally useless in the courtroom. Its the physical evidence that matters, not suspicious activity. The shell casings in the car and the cell phone history are the most damning evidence, but we will have to wait and see if it is enough. Without the murder weapon or a reliable testimony against AH, it could still go either way. All of this other certainly makes him look more and more guilty, but none of it would hold up in court.

  8. howaboutsomefairreporting says: Jul 12, 2013 12:24 AM

    And what if Wallace eventually becomes a prosecution witness, which is very possible if Hernandez was indeed the shooter? Then your entire analysis becomes irrelevant. Please, stick to just making up stuff about football.

  9. goldrush36 says: Jul 12, 2013 12:34 AM

    Sure act like the court room works just like on tv shows for someone who is/was supposedly a lawyer

  10. nomoreseasontix says: Jul 12, 2013 12:34 AM

    And I’m getting a little dizzy…

  11. tinbender2000 says: Jul 12, 2013 12:35 AM

    This worries me deeply. I actually followed what you wrote from beginning to end.

  12. maddenboy says: Jul 12, 2013 12:40 AM

    If Wallace is charged as an accessory, wouldnt his statement to Ortiz fall within the Declaration Against Interest exception?

  13. maxkingpin says: Jul 12, 2013 12:44 AM

    Matty told Hatty about a thing she saw.
    Had two big horns and a wooly jaw.
    Wooly bully, wooly bully.
    Wooly bully, wooly bully, wooly bully.

  14. dawkafella says: Jul 12, 2013 12:55 AM

    Basically if Ortiz , wait if Hernandez, no wait Wallace…. Who cares, he’s not getting jail no time soon!

  15. xsorethumbx says: Jul 12, 2013 12:59 AM

    I was just saying to nobody the other day that what this country needs is more attorneys for reasons like this

  16. chi01town says: Jul 12, 2013 1:01 AM

    I can tell them how it should play out in court.. Put Aaron’s a%$ in the chair and turn it on today. Aaron killed Lloyd and everybody knows he did. give Lloyd’s mom & dad justice.

  17. somekat says: Jul 12, 2013 1:09 AM

    I don’t think the hearsay is a big deal unless Ortiz as a witness is central to their case. We don’t know that to be the case, Ortiz could (and most likely is) just be what they used to justify searches, and then get said evidence, in which case hearsay would be irrelevant. I just can’t see them bringing these charges against a guy they know will have the legal funds he will have without much more to back it up

  18. patmccabe69 says: Jul 12, 2013 1:49 AM

    Is there a pro bowl for prison corn hole?

  19. bueller101 says: Jul 12, 2013 1:51 AM

    You guys are missing the point. Ortiz drove three people to the murder scene. He witnessed all three get out of the car. He heard gunshots first hand. He witnessed only two get back in car. His testimony may not be able to say Hernandez pulled the trigger, but it is still significant.

    Also, with the details of Lloyd getting shot twice then while critically injured, lying on the ground he was shot several more, it sounds like someone who witnessed it would have had to tell police that.

    Sounds like they are both talking. Neither accomplice has been charged with murder. This Ortiz “heresay” is not that important given the totality of what they seem to have.

  20. snikerbotloot says: Jul 12, 2013 1:54 AM

    Innocent until proven guilty is a farce.

  21. tangerinediesel says: Jul 12, 2013 2:11 AM

    Not a lawyer or DA, but don’t they just give him immunity and have him testify?

  22. norcalmafia says: Jul 12, 2013 2:25 AM

    Well maybe his outstanding work in the community will help…oh wait……

  23. 3kdad says: Jul 12, 2013 2:47 AM

    Mike, you gotta be feeling like a kid in a candy store right about now. Keep up the good work!

  24. andreweac says: Jul 12, 2013 2:57 AM

    This Aaron Hernandez disaster was the best PR gift possible for Tim Tebow. Dude has totally faded from the spotlight. Part of the Hoodie’s master plan?

  25. howintensive says: Jul 12, 2013 3:03 AM

    So what you’re saying is that there’s a chance that in this case, the ref (judge) has the ability to keep a team from running up the score too much?

  26. crj202 says: Jul 12, 2013 3:20 AM

    I’m already picturing how the team that signs AH in 2014 (year off to let things cool down) plays this from a PR standpoint. Something like, “AH stood trial for the charges against him, and the judicial system cleared him of all wrongdoing. He should be afforded the opportunity to continue his life and earn a living like any other free American. We intend to give him that chance. We see him as a big part of our now Super Bowl bound team.” You heard it here FIRST!

  27. kdsr382013 says: Jul 12, 2013 3:20 AM

    I still can’t understand how Hernandez, a guy who at least had the requisite amount of common sense to reach the NFL, could have ever been so damn stupid as to pick this Ortiz clown as a crime partner!!! The Guy was on Sherm, Coke, Bud, Alcohol, Perscription Pills, hell.. EVERYTHING! I mean he had to know the minute he got back to the car and saw the look on this fools face, that he would be a liability. He was already on a killing spree, why the hell didn’t he waste Ortiz too?

    Sounds like it took him (Ortiz) all of 5 minutes, a bag of Skittles, and a Diet Fresca to start rolling on his boy. Wallace is gonna fold like a book of matches soon too.

    One of the few things worse than being a high profile inmate in prison, is being the dude who Ratted on a high profile inmate in prison. I hope Ortiz is puncture resistant.

  28. dadsman28 says: Jul 12, 2013 3:21 AM

    If Ortiz is telling the truth and he stayed in the car while Hernandez and Wallace left with Lloyd to commit murder then why would Hernandez need to tell Wallace what had just happened? Wouldn’t Wallace be already more than aware of what had just happened … having been a direct eye witness?

  29. phuriousjorge says: Jul 12, 2013 3:52 AM

    I’m just glad they got these punks off the streets pronto like.
    I believe there will be more than enough evidence to convict.
    As to ‘clumsy’ cover up, there isn’t even a word that matches their ineptitude.

  30. kingpel says: Jul 12, 2013 4:27 AM

    I am starting to seriously question our justice system in America. It seems every time I turn on the television another person is getting away with a murder that they obviously committed.

  31. harrycanyon says: Jul 12, 2013 5:35 AM

    Lock all three of them up and throw away the key. Reagrdless of the outcome those 3 men were involved with a murder and a cover up. No one is innocent, and they should all pay the price. (yeah I know , innocent untill proven guilty, but it’s just not looking that good for them). I imagine there is a lot of evidence we haven’t even heard about yet, while they investigate the other crimes these idiots are potenitally linked to.

  32. wryly1 says: Jul 12, 2013 6:53 AM

    The other obvious piece to this is that Wallace can (and likely will) corroborate Ortiz’ statement as part of his own effort to minimize the sentence he’ll receive for his role in the murder. What’s becoming clear is these guys aren’t taking the fall for Hernandez.

  33. perspective2424 says: Jul 12, 2013 7:01 AM

    Glad we got that all cleared up!

  34. vibesid says: Jul 12, 2013 7:15 AM

    If Wallace testifies that he saw Hernandez shoot Lloyd, then that is admissible and is not hearsay.

    Ortiz’s testimony puts pressure on Wallace to testify. If he doesn’t, he can get charged with first degree murder. So he’ll plea bargain for a lesser charge in exchange for his testimony.

    If prosecutors prove beyond a reasonable doubt that either Wallace or Hernandez pulled the trigger (or both) then they can both be convicted for first degree murder.

  35. metrocritical says: Jul 12, 2013 7:20 AM

    Excellent breakdown of a complex evidentiary issue that could be at the heart of this case when it ultimately goes to trial someday, Mike. Maybe a career in the law is your true calling. Think about it. Side note: If the Massachusetts Board of Examiners wanted to be funny, they could include this scenario on the written portion of the bar exam later this month.

  36. babyriggo44 says: Jul 12, 2013 7:40 AM

    Just use the Casey Anthony Jury, AKA DUMBEST JURY EVER, they love murderers.

  37. betterandbetterthan says: Jul 12, 2013 7:44 AM

    If Ortiz was sleeping while the other 3 got out of the car to “pee” then, presumably, we can assume Wallace had closed his eyes whilst peeing and heard 5 gun shots, all of which he must have thought were accidental, and needed Hernandez to admit he did so intentionally. Right? Because why else would someone present at the shooting require the, alleged, only other person still alive that exited the car to inform him he was the shooter.

    This doesn’t pass the smell test.

  38. arackowski says: Jul 12, 2013 7:45 AM

    Problem is Ortiz is lying. Spent shells found in car. If story of guys getting out of car is true, then at least one shot fired from in car probably by Lloyd.

    Then by saying Hernandez made him grab gun from under seat he explained how his prints on weapon – which has not yet been found But I doubt he knows it.

    Forensics should show how many weapons were used.

  39. arackowski says: Jul 12, 2013 7:46 AM

    Correct – fired by Ortiz.

  40. mikes112291 says: Jul 12, 2013 7:48 AM

    Blah blah blah.

  41. arackowski says: Jul 12, 2013 7:54 AM

    If I am Hernandez I’m blaming the guy who gets high on pcp. In fact that’s why I’m inviting him along on all my murder runs.

  42. pl4tinum514 says: Jul 12, 2013 7:55 AM

    A bunch of bull—- is what it is. Put the mother——er in jail for life and be done with it. Worst justice system ever, that we have to even discuss this kind of crap.

  43. whatnojets says: Jul 12, 2013 9:01 AM

    steviemo says: Jul 12, 2013 12:16 AM

    Odin’s text messages on the way to his execution certainly weren’t hearsay.
    ——————————————–

    How do you know that Mr. Lloyd actually texted that message?

  44. whatnojets says: Jul 12, 2013 9:28 AM

    How many people remember Darryl Henley?

  45. chi01town says: Jul 12, 2013 9:38 AM

    @pl4tinum514
    I agree 99.9 percent and the ONLY
    small differance is I would drop Aaron’s a%$ off in the chair and turn it on when I leave for lunch break today

  46. cwwgk says: Jul 12, 2013 10:11 AM

    Hearsay is an out of court statement offered for the truth of the matter asserted. As such, the statement in question is hearsay no matter how you want to characterize it. The only question is whether it falls into one of the exceptions to the hearsay rule and therefore becomes admissible. Someone’s rules of evidence is a little rusty.

    Massachusetts’ co-conspirator exception undoubtedly will be relied upon by the prosecution. Given the facts known to date, they’ll have a very compelling argument for the statement to be admitted.

  47. chadbrochill017 says: Jul 12, 2013 10:41 AM

    FYI, it’s the Mass Guide to Evidence, not Rules (very persuasive but not controlling–you have to cite to the actual case). As to your Mass legal research, it’s well-settled that invoking the Fifth Amendment right renders a witness unavailable. See Commonwealth v. Koonce, 418 Mass. 367, 378 n. 6, (1994); Commonwealth v. DiPietro, 373 Mass. 369, 380-386 (1977) ; Commonwealth v. Canon, 373 Mass. 494, 499-500 (1977). Massachusetts is in accord with the federal courts on this issue. See, e.g., Steele v. Taylor, 684 F.2d 1193, 1200 (6th Cir. 1982); United States v. Lang, 589 F.2d 92, 95 (2d Cir. 1978).

  48. bookofelisha10 says: Jul 12, 2013 10:44 AM

    he looks like a crackhead and has had like 5 drugs in his system.. if hes credible..then im gothams dark knight

  49. 3yardsandacloud says: Jul 12, 2013 10:49 AM

    The trouble with Ortiz’s claimed statement, other than it being hearsay, is it doesn’t make any sense, as someone else aptly pointed out.

    So why doesn’t it make sense? Oh, I know, because Ortiz is lying! I think most reasonable people agree he wasn’t asleep in the car, as he claims. So think it through… Ortiz is afraid that he’s going down for murder, so he fingers Hernandez, by saying his other friend (Wallace) told him that Hernandez told him that he killed Lloyd. Forgetting entirely that Wallace supposedly witnessed the murder and thus there would be no reason for Wallace to tell Ortiz that Hernandez told him. (Even assuming Wallace didn’t watch it happen, he got out of the car with Lloyd and Hernandez).

    The story here (Ortiz’s) doesn’t make sense and I think the real concern needs to be that Hernandez is the high profile target that the prosecution wants to hammer, so they are taking any swing they can to get there. It’s very possible that Ortiz is the trigger man and trying to save his own skin.

    Florio is correct that the statement likely gets in as an exception as a statement by a co-conspirator or joint venturer. Given that they all traveled to the murder scene, it’s unlikely they will be classified as anything but co-conspirators. Someone suggested giving Ortiz immunity; however, the Prosecution isn’t going to waive any penalty against Ortiz. Further, immunity would be immaterial as to the hearsay statements.

    Finally, someone criticized Florio for his rules of evidence being rusty. I disagree. Florio basically said what you did, without keeping the statement as a hearsay classification. You’re splitting hairs to make him look like he doesn’t know what he’s talking about, which is clearly untrue.

  50. pinion8ted says: Jul 12, 2013 11:13 AM

    dadsman28 says: Jul 12, 2013 3:21 AM

    If Ortiz is telling the truth and he stayed in the car while Hernandez and Wallace left with Lloyd to commit murder then why would Hernandez need to tell Wallace what had just happened? Wouldn’t Wallace be already more than aware of what had just happened … having been a direct eye witness?
    ———————————————————-
    Very telling point. You’re right.

    Something’s not adding up, here.

  51. pinion8ted says: Jul 12, 2013 11:17 AM

    chadbrochill017 says: Jul 12, 2013 10:41 AM

    FYI, it’s the Mass Guide to Evidence, not Rules (very persuasive but not controlling–you have to cite to the actual case). As to your Mass legal research, it’s well-settled that invoking the Fifth Amendment right renders a witness unavailable. See Commonwealth v. Koonce, 418 Mass. 367, 378 n. 6, (1994); Commonwealth v. DiPietro, 373 Mass. 369, 380-386 (1977) ; Commonwealth v. Canon, 373 Mass. 494, 499-500 (1977). Massachusetts is in accord with the federal courts on this issue. See, e.g., Steele v. Taylor, 684 F.2d 1193, 1200 (6th Cir. 1982); United States v. Lang, 589 F.2d 92, 95 (2d Cir. 1978).
    ———————————————————
    Yeah, what HE said ;)

  52. audge86 says: Jul 12, 2013 12:24 PM

    The prosecution is better off keeping Ortiz off the stand.

    He’s sketchy. His story has obvious flaws. Hernandez’s lawyers would have a field day ruining his credibility and making the prosecution look weak for using him to support the charges

  53. broncos3245 says: Jul 12, 2013 12:34 PM

    Ppl gon hate but idc….circumstantial evidence doesn’t mean anything the fact ortiz was drugged up on pcp let alone anything else just corkscrews his statement…when the cops arrested him the dude didnt even kno where he was n he fell asleep in the car after someone got shot…tht sure sounds realistic. Hernandez will walk he’s a g
    Dumbest murderer ever but his buddy ortiz who is just as dumb is helping hernandez more then he’s helping himself

  54. kdsr382013 says: Jul 12, 2013 1:15 PM

    I gotta say, regardless of how its sliced, I can’t even begin to imagine what kind of defense Hernandez and his counsel could present at trial. I read all of the warrant documentation, and they have him pretty well locked in to times and locations by way of video, witness accounts, etc… He just doesn’t seem to have even a couple of minutes when he is unaccounted for during this whole incident, where he can feign ignorance or claim to be somewhere else. He never indicated nor did any of the evidence thus far, that he was forced to kill or even ride along. Anyone wanna guess as to what his angle could possibly be?

  55. rukkus1 says: Jul 12, 2013 1:29 PM

    This dude’s cred was out the window when he said he went back to sleep right after he found out an acquaintance had just been murdered

  56. harrisonhits2 says: Jul 12, 2013 1:33 PM

    bueller101 says:

    You guys are missing the point. Ortiz drove three people to the murder scene. He witnessed all three get out of the car. He heard gunshots first hand. He witnessed only two get back in car. His testimony may not be able to say Hernandez pulled the trigger, but it is still significant.
    ______________________

    To which the defense can argue he was on a combination of pcp, alcohol and weed, largely asleep and most likely had trouble counting as high as 2 at that point and can’t even be sure how many people he halleucinated were in the car with him.

    And its the pcp especially that makes him a pretty crappy witness. That stuff is deadly and mind bending.

  57. arackowski says: Jul 12, 2013 1:51 PM

    **************
    I gotta say, regardless of how its sliced, I can’t even begin to imagine what kind of defense Hernandez and his counsel could present at trial. I read all of the warrant documentation, and they have him pretty well locked in to times and locations by way of video, witness accounts, etc… He just doesn’t seem to have even a couple of minutes when he is unaccounted for during this whole incident, where he can feign ignorance or claim to be somewhere else. He never indicated nor did any of the evidence thus far, that he was forced to kill or even ride along. Anyone wanna guess as to what his angle could possibly be?
    *******************

    His defense is going to be that Ortiz did it. Hernandez and Lloyd shook hands and made peace and the whole thing was fine at that point. They got out to Pee together after smoking a little, and Ortiz being on drugs shot Lloyd. That is my best guess.

  58. jlswisc says: Jul 12, 2013 2:01 PM

    “The statements Ortiz made to police about the events of the evening and Wallace’s comments about Hernandez’s confession are more likely to be admissible if Ortiz is not available to testify at trial;”

    This is inaccurate. The Confrontation Clause (CC) only bars the out of court, testimonial statement, if the declarant IS unavailable.

    In other words, the IS a CC issue if Ortiz if unavailable

  59. kdsr382013 says: Jul 12, 2013 6:53 PM

    Thanks for the insight arackowski. Makes alot of sense.

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