Bar owner testifies at hearing that bartender told him a minor tried to purchase alcohol. Isn’t this hearsay?

My daughter was found guilty of attempting to purchase alcohol by a minor (she was 19). The bar owner was not a witness to the alleged event but the bartender told him that she came in and tried to buy alcohol. A little while later he barged into an apartment over the bar where she was with some friends and demanded her license and her friend’s license. He did not ask for anyone else’s id (one boy was only 14). Isn’t his testimony considered hearsay? Doesn’t the bartender have to testify? She wants to appeal this and needs some legal advice but can not afford a lawyer.

Asked on June 11, 2009 under Criminal Law, Pennsylvania

Answers:

M.S., Member, Connecticut Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

The definition of hearsay is "an out of court statement offered into evidence to prove the truth of the matter asserted."  Therefore, if the bar owner testified that the bartender told him that your daughter tried to buy alcohol, and it was offered into evidence to prove that your daughter tried to purchase alcohol, then that does sound like hearsay indeed.  However, the inquiry does not end there.  First, a judge will usually only refuse to allow hearsay if the opposing attorney recognizes that the statement is hearsay and raises an objection at the appropriate time.  If the attorney fails to object, the jury may consider hearsay testimony.  Moreover, the hearsay rule is subject to approximately fourteen exceptions, and it is unclear, based on the facts that you have provided, if any of those exceptions apply in this instance.  

If the attorney made a mistake and failed to raise the appropriate objection, this may provide the basis for an action against her prior attorney.  If, on the other hand, the objection was properly raised and the judge made a mistake in allowing the testimony, this may be the basis for an appeal.  Nevertheless, you need to consult with and/or retain an experienced trial/criminal defense attorney to discuss this matter and review the appropriate transcripts.  If you do not have the financial ability to do this, perhaps you can locate a legal aid clinic or a University clinic in your area that could help you on a pro bono basis.  Good luck.


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