Trial Musings 2: The Gilbert Interview

As the prosecution gets ready to call Sean and Grant today, an evidentiary battle may be looming over this:

""Sergeant Douglas Higgins, Dallas Township Police Department, Dallas, Pennsylvania, advised Cpl. Leo D. Hannon Jr. that he interviewed Benjamin Gilbert of Palmdale, California. Gilbert advised that he associated with Sean Lockhart and they last had contact in October 2006 Gilbert recalled that Lockhart had spoken about getting rid of Bryan Kocis; that he hated Kocis; and that Kocis had ruined his life. Gilbert also referred to a friend of Lockhart known as Grant who stated he wanted to find a “cleaner” to take care of Kocis. Gilbert overheard Lockhart telling Grant not to talk about that in front of people you don’t know. Gilbert further advised that Grant is in love with Lockhart and would do anything for Lockhart. ""

Normally, this written report by Sgt. Higgins would have been inadmissible at trial due to the hearsay rule. However...the interviewee in this case, Benjamin Gilbert, tragically committed suicide last week, and hearsay evidence generally becomes easier to introduce in cases where the declarant is unavailable, as more exceptions to the rule kick in. In particular, the declarations against interest exception seems to be one the defense can now try to exploit (arguing risk of civil suit).

If this written report does get in, it'll be a boon to the defense, no doubt about it. And it seems to me, based on their opening statement, the defense fully intends to exploit the benefits they've gained by this tragedy to the hilt: "...“You’ll hear that Grant Roy and Sean Lockhart hated Bryan Kocis; they even wanted him dead. [italics mine]

This statement is a piece of paper, and as we all know, a piece of paper cannot be cross-examined. Had Gilbert been alive and forced to testify in person to get this story into evidence, I suspect the prosecution would have been able to cast much doubt as to it's veracity upon cross-examination. If it does get in, the best the prosecution can do now is attempt to rebut the piece of paper, perhaps citing Gilbert's manic depression and Paxil usage, both of which are known to cause severe short-term memory problems.

In fact, the now revealed medical evidence that the Gilbert story was misremembered or hallucinated is such that it may permit the prosecution to exclude the report on reliability grounds, instead of hearsay.