“Nicole Brown Hearsay Exeption” Thrown Into Doubt

Hearsay is a statement made out-of-court that’s offered for its truth. Under the rules of evidence, hearsay is inadmissible at trial unless an exception applies.

The California Supreme Court recently considered one of the exceptions to the hearsay rule: the so-called “Nicole Brown Simpson hearsay exception.” Enshrined in Evidence Code Section 1370, the Nicole Brown Simpson hearsay exception lets the court admit an out-of-court statement that’s recorded and was made at or near the time of the infliction/threat of physical injury if the speaker is unavailable to testify as a witness at trial. The impetus for Evidence Code Section 1370 was of course the harrowing 911 call made by Nicole Simpson prior to her murder cowering at her husband’s violent rages which was not let into evidence during OJ Simpson’s murder trial.

In People v. Livingston, the California Supreme Court invalidated or greatly narrowed this exception to the hearsay rule as applied to criminal defendants. Recalling that the Sixth Amendment guarantees the accused the right to cross-examine the witnesses against him, the Court held that a videotaped statement made by a deceased witness to a murder which the trial court had admitted under the Nicole Brown Simpson hearsay exception should not have come in because it effectively extinguished the defendant’s right to cross examine.