When is failing to object to hearsay evidence a reasonable trial strategy? State v. Moore Explained

In State v. Moore, the Utah Court of Appeals examined whether defense counsel’s decision not to object to potentially inadmissible hearsay statements constituted ineffective assistance of counsel. The case provides important guidance on when strategic decisions to allow questionable evidence can be reasonable trial tactics.

Background and Facts

Moore was convicted of sexual abuse of a child after his ex-girlfriend’s eight-year-old daughter accused him of inappropriate touching during a family visit. The child reported the incident to her sister the same night, saying Moore touched her “really, really bad” on her “pee-pee.” She later told her mother about the incident. At trial, the State moved to admit these out-of-court statements, and defense counsel explicitly stated he would not object to their admission.

Key Legal Issues

Moore raised two primary challenges on appeal: first, that the trial court committed plain error in admitting the child’s out-of-court statements without a reliability determination, and second, that his counsel provided ineffective assistance by failing to object to these allegedly inadmissible hearsay statements. Moore also challenged the sufficiency of evidence supporting his conviction.

Court’s Analysis and Holding

The court rejected Moore’s plain error claim, finding he failed to establish obvious error where defense counsel’s strategic concession resulted in invited error. More significantly, the court found counsel’s performance was not deficient under the ineffective assistance of counsel standard. Defense counsel had pursued a fabrication theory, arguing the mother induced the child to make false allegations in retaliation for Moore’s refusal to help her move. Counsel strategically used the child’s inconsistent descriptions of the touching—describing it as occurring on her vagina, over her underwear, and on her inner thigh—to undercut her credibility and support the fabrication defense.

The court emphasized that counsel “necessarily balanced the risk of allowing admission of Child’s statements at trial against the chance that inconsistencies in those statements would help Moore’s case.” Additionally, the statements may have been admissible as prior consistent statements under Rule 801(d)(1)(B) since they were made before the alleged motive to fabricate arose.

Practice Implications

This decision demonstrates that strategic decisions to allow potentially problematic evidence can constitute reasonable trial tactics when they serve the defense theory. Courts will not second-guess counsel’s strategic choices in hindsight, particularly when those choices involve balancing competing risks and benefits. However, practitioners should document their strategic reasoning to establish the legitimacy of such decisions if challenged on appeal.