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

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Saturday, December 8, 2007

Take Good Care Of My Baby: Texas Court Applies Its Disgrace Exception To The Rule Against Hearsay

A recent case in Texas state court reveals an important distinction between the Texas Rules of Evidence and the Federal Rules of Evidence concerning the admissibility of statements against interest.  Pursuant to Federal Rule of Evidence 804(b)(3) and most state counterparts, when a declarant is unavailable to testify at trial, his prior statement is admissible if it was "at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." 

Courts generally preclude the admission of hearsay statements, but the theory of admissibility for statements against interest is that a person is unlikely to lie in a manner that would cause him to lose money, property, or his freedom.  The Advisory Committee Notes to Rule 804 further indicate that the unavailability of the declarant is required because at common law the "statement against interest" exception was among those hearsay exceptions which evolved in connection with the unavailability requirement.

Texas Rule of Evidence 803(24), which contains its "statement against interest" exception, differs from the federal rule in two key regards.  First, the declarant does not need to be unavailable for the exception to apply.  Second, Texas Rule of Evidence 803(24), in addition to covering the types of statements listed in the federal rule, also covers statements which would "make the declarant an object of hatred, ridicule, or disgrace."

In Lewis v. State, 2007 WL 4260327 (Tex.App.-Waco 2007), Timothy Lewis was convicted of capital murder in connection with the death of four year-old Tyrone Fenner, his stepson.  At trial, Timothy argued,  inter alia, that Tyrone's death was caused not by him but by his mother, Virginia.  Tyrone sought to prove this allegation in part through Virginia's statement seven weeks before Tyrone's death to her mother-in-law.  See id. at *2.  Specifically, Virginia, who was nine months pregnant at the time, allegedly told her mother-in law, "I hate kids.  I hate kids.  I wish they would die." Id.  Lewis argued that this statement was admissible pursuant to Texas Rule of Evidence 803(24) because it "would make Virginia the object of disgrace." Id.

The trial court, however, found that Virginia's statement was inadmissible, and the Court of Appeals of Texas agreed.  The Court of Appeals noted that a reasonable woman who was nine months pregnant "could claim to hate children out of frustration and not because she actually harbors hate." Id. at *3.  It further found that Virginia's statement was "not so unreasonable that a person in her position would not have made the statement unless she believed it to be true." Id. The court then contrasted Virginia's statement with statements it had found admissible under Texas Rule of Evidence 803(24) such as a declarant's statement that he was H.I.V. positive and a clergyman's statement that he had a homosexual encounter in a public bathroom.

I'm not sure that I understand how Texas courts apply their rules.  The court in Lewis focused at least partially on the fact that Virginia's statement could have been made out of frustration and not because she actually harbored hate for children.  I can see how this statement makes sense, but I don't see how it's relevant to the issue of whether her statement subjected her to ridicule.  Furthermore, if the court's theory was that Virginia's statement really just showed her frustration, her statement would have been non-hearsay because it would not have been offered to prove the truth of the matter asserted in the statement.

-CM

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