Can a Verbal Act Be Admitted into Evidence?

This case is State vs. Young which the Maryland Court of Appeals rendered a decision with respect to verbal act if it falls under non-Hearsay. A jury convicted Steve Young for possession with intent to distribute controlled dangerous substances and possession. A motion to suppress to introduce of a prescription of controlled substances which the lower court ruled on as hearsay grounds. However, the Maryland Court of Appeals ruled that the prescription is admissible as a “verbal act” and they are non-hearsay.

A team of officers executed a search warrant. An officer saw a male and Steve Young standing in front of the house. The police handcuffed both suspects and entered the residence. Inside the house, the police saw a female who was Young’s wife. After the police read Mr. Young his Miranda rights, Mr. Young stated that he had in his possession controlled dangerous substances in his house. The police entered his house and in his bedroom found 32 pills including methadone, heroin, Xanax pills and a powder substance on a digital scale. One of the kitchen cabinet the officer found OxyContin pills, gel caps that may contain heroin, and about $1,500 in cash.

The police charged Young with possession with intent to distribute controlled substance and illegal possession of controlled substances. A motion to suppress drug evidence was filed by Young. Young contended that he attempted to provide prescriptions to police officers during the arrest. He also explained that he had a prescription for Percocet, Methadone, and Xanax, as well as his wife had prescription. However, he did not provide any documentations showing that they were prescriptions.

The State requested to exclude all evidence pertaining to prescription for the drugs seized by the police officers. The Court granted the State’s request without allowing Young to respond.

Young contended that the Prosecutor did not raise the question of authentication during trial and thus it cannot be raised that issue on appeal. Young argued that the Prosecutor use to authentication was in the context of its business records exception. The Court did not buy that argument what the Court stated that the prescriptions are non-hearsay, and there should be no exception to have them be admitted properly. Furthermore, Young argues that since neither records of custodian need testify nor physician, he could self-authenticate the prescriptions. The State raised five arguments, but the Court rejected State’s arguments with that respect.

It is black letter law that a statement made out-of-court are generally not admissible to prove the truth of the matter asserted. However, if there is an assertion that was merely implicit or unintentional, then it is not considered as hearsay.

In State vs. Garner, an officer heard a caller saying “Yo, can I get a 40?” The Maryland Court of Appeals held that this was a verbal act and should have been admitted into evidence. Hearsay is not used to exclude evidence of a verbal act that is established a consequential fact. The Court characterized the statement in two different ways. One, the Court was admissible as a verbal part of an act in which case does constitute as an offer. The Court addressed that the purchase of a drug or the making of a wager, illegally or legally, is a form of contract. The caller was making a contract to prove that it had legal significance of forming a contract. Court ruled that the statements were not hearsay showing the declarant’s state of mind through circumstantial evidence.

Garner was not first Maryland ruling that use the verbal acts doctrine. In Banks vs. State, Court of Special of Appeals addressed that verbal acts are admissible when they are used to establish the basis of a defense or claim.

Young was never provided with the opportunity to authenticate the prescriptions since the judge characterized the prescriptions as hearsay. The trial judge erred in his ruling to exclude that piece of evidence.