Friday, January 18, 2008
The Doors Of Perception: Supreme Court of Kansas Case Shows Why a Federal "Recent Perception" Exception Might Make Sense After Crawford
The Supreme Court of Kansas has affirmed the first degree murder conviction of former Kansas State University Professor Thomas E. Murray in a case that reveals that Kansas has an exception to the rule against hearsay which perhaps should be incorporated into the Federal Rules of Evidence in the wake of the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004). In the spring of 2003, Murray and his wife Carmin divorced. By November 2003, the former spouses were in a custody battle over their 4 year-old daughter, Ciara. On November 14, 2003, Carmin was found dead; an autopsy revealed that she had suffered 11 lacerations due to blunt force injury, followed by 12 stabs in the neck with a knife, as well as several defensive wounds on her arms.
Murry was later convicted of first degree murder in connection with Carmin's death in a case built entirely on circumstantial evidence. Some of this circumstantial evidence consisted of (1) the testimony of Carmin's mother about conversations between Carmin and she in 2003, and (2) attorney Anne Miller reading e-mails Camin had sent her regarding the custody battle over Ciara. In one of these e-mails, Carmin wrote that she had become much more forceful in her position of obtaining primary residential custody of Ciara. Over Murray's objections, the court permitted this testimony, finding that it demonstrated "the deterioration of the relationship" between Murray and Carmin.
On appeal, the Supreme Court of Kansas noted, inter alia, that K.S.A. 60-460(d)(3) provides an exception to the rule against hearsay, allowing for the admission of statements made by unavailable declarants "at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort." The Court then found that Carmin's statements to her mother and her e-mails to the attorney fell under this exception, allowing for the admission of the testimony by her mother and the attorney.
This so-called "recent perception" exception to the rule against hearsay is in effect in a few states. While I am unsure of how many states currently have the exception, a law review article from 1985 placed the number at five. See Kenneth E. Kraus, Comment The recent Perception Exception to the Hearsay Rule: A Justifiable Track Record, 1986 Wis. L. Rev. 1525, 1527 n.16 (1985). The Supreme Court approved a similar exception for the Federal Rules of Evidence in the early 1970s, "but Congress declined to incorporate the exception in the Federal Rules of Evidence." Tom Lininger, Reconceptualizing Confrontation After Davis, 85 Tex. L. Rev. 271, 320 (2006).
So, why might such an addition be important now? Well, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Essentially, hearsay is "testimonial" when the declarant made the hearsay statement with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution.
Since Crawford, the prosecution of several crimes has gotten much more difficult, with the most significant casualty being domestic violence prosecutions. A federal "recent perception" exception could thus be useful because the few states that have one "have found it useful in a wide range of cases, including prosecutions of violent crime. [Furthermore], the exception seems particularly well-suited for the Supreme Court's new confrontation jurisprudence because the rule explicitly bars statements when the declarant was contemplating litigation or when the declarant was responding to investigators." Linger, supra, at 320-321. I don't know enough about this exception and why Congress rejected it, so I can't say definitively whether such an exception should be added. But it is certainly an exception whcih merits further investigation.