Monday, March 10, 2008
Night At The Museum, Take 2: Tenth Circuit Finds Appellate Courts Should Be Especially Deferential To Hearsay Rulings
Yesterday, I wrote about the Tenth Circuit's recent opinion in United States v. Ary, 2008 WL 565437 (10th Cir. 2008). Today, I want to address another aspect of that case. In upholding the district court's admission of hearsay under the business records exception to the rule against hearsay, the court noted that it "reviews the district court's receipt of evidence for an abuse of discretion." The Tenth Circuit then indicated that "'[w]e are 'especially deferential with respect to rulings on the admission of hearsay evidence.'" (quoting Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1017 (10th Cir. 2004)). I had never previously seen an appellate court taking an especially deferential posture toward hearsay evidence admitted by the trial court, which led me to do some research.
While my research may be incomplete, I found several Tenth Circuit opinions with similar language but no opinions from other circuits treating admitted hearsay evidence differently from any other category of admitted evidence. So, what is the basis of the Tenth Circuit's reasoning? Well, I traced it back to United States v. Rodriguez-Pando, 841 F.2d 1014, 1018 (10th Cir. 1988), where the Tenth Circuit indicated, "[i]n a review of the evidentiary rulings of a trial court, this court may not reverse in the absence of an abuse of discretion....The need for deference to a trial court ruling on a hearsay objection is particularly great because the determination of whether certain evidence is hearsay rests heavily upon the facts of a particular case."
Simply put, I don't understand the Tenth Circuit's point. Almost every evidentiary ruling depends on the facts of a particular case, and I don't see how hearsay evidence is unique. For instance, courts have found that (1) determining whether the proponent of secondary evidence has established that he made a reasonable and diligent for the original under Federal Rule of Evidence 1004 "depends on the particular facts and circumstances of each case" Rosenberg v. Neubeck, 1997 WL 33014 at *2 (N.D. Cal. 1997); (2) determining whether facts are subject to judicial notice under Federal Rule of Evidence 201(a) depends on the facts that the proponent seeks to establish" Janoe v. Garcia, 2007 WL 110914 at *5 (S.D. Cal. 2007); (3) determining the reasonableness of the timing of a request or disclosure under Federal Rule of Evidence 404(b) "depends on the facts of each case" United States v. Plaskett, 2008 WL 441930 at *2 (D. Virgin Islands 2008); (4) determining whether evidence passes the balancing test laid out in Federal Rule of Evidence 403 "depends on the specific facts adduced at trial and upon the context of those facts at trial" Gardetto v. Mason, 201 F.3d 447 (10th Cir. 1999); and (5) determining whether expert evidence is admissible under Federal Rule of Evidence 702 depends on whether the expert's reasoning or methodology properly can be applied to the facts in issue" United States v. White Horse, 316 F.3d 769, 775 (8th Cir. 2003).
In fact, I would be hard pressed to think of a situation where the admissibility of a piece of evidence did not depend on the facts of the particular case. The Tenth Circuit's hearsay theory thus does not seem reasonable.