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Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, May 1, 2012

The Dog That Didn't Bark In The Night: Appellate Court Of Connecticut Uses Sherlock Holmes To Solve Hearsay Mystery

My first introduction to the character of Sherlock Holmes was in the summer of 1986. I was nine years-old, and my friend and I went to see Disney's "The Great Mouse Detective," with the inimitable Vincent Price voicing the Moriarty-inspired Professor Ratigan. Despite being released in the "dead period" in Disney animation before the renaissance spurred by "The Little Mermaid," "The Great Mouse Detective" remains my favorite hand drawn animated work from that the House of Mouse has produced. I can still picture the climactic confrontation from Big Ben.

In the next few years, I would read several of Sir Arthur Conan Doyle's stories, which my parents had in our house. And I would watch Barry Levinson's "Young Sherlock Holmes" (a harbinger of the CGI-ification of modern movies) and Thom Eberhardt's humorous "Without a Clue" on HBO. But then, despite catching up on some older Holmes' movies, such as Herbert Ross' Holmes/Freud mashup, "The Seven-Per-Cent Solution," I didn't experience much Sherlock Holmes over the next decade-plus. The only Holmes' work that I remember from that period was listening to the audio CD of Michael Chabon's novella, "The Final Solution: A Story of Detection," in which an eighty-nine year old Holmes is called out of retirement to solve a pair of Holocaust-related mysteries.

Lately, though, there's been a Sherlock Holmes resurgence, and I'm not just talking about Holmes-inspired works, ranging from "CSI" to "House." 2009 saw the release of Guy Ritchie's steampunkified "Sherlock Holmes," and 2011 saw the release of its sequel, both with the puckish Robert Downey, Jr. as the titular detective and Jude Law as his straight man sidekick, Dr. Watson. And, if it's picked up, the CBS pilot, "Elementary" will premiere on CBS with Jonny Lee Miller as Holmes and Lucy Liu as Watson in modern day New York City.

For my money, though, the best Sherlock Holmes adaptation that I've ever seen is Steven Moffat's "Sherlock." Like "Elementary,"  "Sherlock" contemporizes the Holmes tale, but in England, with Holmes as a consulting detective to Scotland Yard, and Watson a veteran of the (modern) Afghan War. Moffat, who is also currently helming the reinvention of "Doctor Who," is a master of both plot and character development. And when you've got Benedict Cumberbach playing Holmes in a performance as good as his name and Martin Freeman inhabiting Dr. Watson, you can't go wrong. You can catch up with Series One of "Sherlock" (consisting of three 90 minute episodes) on Netflix instant streaming, and Series Two, which premiered months ago on the BBC, will debut on PBS' Masterpiece Theater this Sunday at 9:00 PM.

The stories of Sherlock Holmes, of course, have had a huge impact on both criminal and civil trial, and you will frequently see judges and lawyers citing to the fictional detective and his powers of detection. Without question, though, the Sherlock Holmes story that courts cite more than any other is "Silver Blaze," which the Appellate Court of Connecticut cited in its recent opinion in State v. Rosado, 2012 WL 1003763 (Conn.App. 2012), to answer a hearsay question.

"Silver Blaze" is the story of the disappearance of the titular race horse. It is believed that a stranger stole the horse, but Holmes is able to pin the horse's disappearance on the horse's late trainer, John Straker, because a dog at the horse's stable did not bark on the night of his disappearance. The following exchange takes place in the short story:

Gregory (Scotland Yard detective): "Is there any other point to which you would wish to draw my attention?"

Holmes: "To the curious incident of the dog in the night-time."

Gregory: "The dog did nothing in the night-time."

Holmes: "That was the curious incident."

According to Holmes, "I had grasped the significance of the silence of the dog, for one true inference invariably suggests others....Obviously the midnight visitor was someone whom the dog knew well. It was Straker who removed Silver Blaze from his stall and led him out on to the moor."

So, that takes us to Rosado. In Rosado, Geraldo Rosado was charged with conspiracy to commit murder. A concerned citizen informant, however, had contacted a detective, Detective Hunter and told him that someone other than Rosado committed the murder and never mentioned Rosado. While Hunter was testifying, 

Outside the presence of the jury, defense counsel argued, over an objection by the state, that he should be allowed to question Hunter regarding statements made by the concerned citizen in order to impeach Hunter's testimony. The defendant's offer of proof provided that the concerned citizen had told Hunter that someone other than the defendant had shot the victim and that the concerned citizen had not mentioned the defendant. The court sustained the state's hearsay objection, noting that the statements the defendant sought to introduce only had impeachment value if offered for the truth of the matter asserted. The defendant then asked whether the court would permit the following question: "Did the concerned citizen mention [the defendant]?" The state objected to the question on hearsay grounds, and the court again sustained the state's objection.

Here is part of the exchange that followed:

The Court: Yes, the answer is no. Well, I guess that that is—I'm trying to think that—I'm trying to think if that calls for a hearsay response. It may not. Do you object to that question?

[The Prosecutor]: I do, Your Honor, because what it is—you know it's one thing to say what did the concerned citizen say. Clearly, that would elicit a hearsay response.

The Court: Right.

[The Prosecutor]: This is doing the exact same thing in a sense, because what it's doing is—the question—

The Court: The dog that didn't bark in the night.

[The Prosecutor]: Right. The question presumes facts.

The Court: The objection is sustained.

In affirming this decision and the Rosado's conviction, the Appellate Court of Connecticut noted that

The court's reference to "[t]he dog that didn't bark in the night" is to a point made by Sherlock Holmes in Silver Blaze, a story by Sir Arthur Conan Doyle, where the fact that a dog did not bark during the night when a race horse was removed from a stable was an important clue to solve the mystery of who removed that horse from the stable.

I agree with the court's conclusion, but I find the reference to "Silver Blaze" a bit jarring. If, say, Rosado were on trial for murdering his wife and he claimed that a stranger killed her, testimony that the family dog did not bark would be allowed because dogs, as animals cannot utter hearsay, whether they are barking or not. Moreover, if Rosado were on trial for murdering his wife and claimed that a stranger killed her, testimony would be allowed that their child did not scream because the absence of any statement by a person is not hearsay. The problem for the defendant in Rosado was not that the concerned citizen informant said nothing as evidence of his silence would have been admissible. It is that the concerned citizen informant said something, meaning that proof of what the informant did not say was evidence of what the informant did say.

-CM

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