Saturday, March 28, 2009
Layering Effect: Ninth Circuit Finds Public Record With Hearsay Within Hearsay Was Improperly Admitted
The recent opinion of the Ninth Circuit in United States v. Marguet-Pilado, 2009 WL 792500 (9th Cir. 2009), addresses a topic that I just covered in my Evidence class yesterday: If a business or public record contains statements made by someone outside the business or public agency, you have hearsay within hearsay, and each level of hearsay must be admissible under some applicable exception.
In Marguet-Pilado, Carlos Jesus Marguet-Pillado (Carlos Marguet) appealed from his conviction under 8 U.S.C. Section 1326(a) for being a removed alien who was found in the United States. As part of his appeal, Carlos Marguet claimed, inter alia, that the trial court improperly allowed for the admission of the Application from his immigration file (A-file), in which he applied for permanent resident status on the basis of his relationship to Michael Marguet, who was not his biological father but who was named as his father on a Mexican birth certificate. At the time that this application was filled out, Carlos Marguet was just a five-year-old boy, and the document was filled out and signed by Michael Marguet. In it, Michael Marguet declared that Carlos Marguet was born in Mexico and was a citizen of that country.
On appeal, Carlos Marguet claimed that this Application was inadmissible hearsay, but the State countered that it was admissible under either the business records or the public records exception to the rule against hearsay. The Ninth Circuit found that either of these exceptions were probably at least partially applicable, especially the latter, because "the Application c[ould] be said to document the activities of a governmental agency and to document the observations of a responsible government officer to some extent."
The problem for the State, however, was that both of these exceptions only cover statements made by members of the business or public agency because they have a duty to report, and it is generally expected that they do so accurately and reliably. Conversely, a private citizen outside the business or public agency has no such duty, and "the only part of the document truly relevant...[wa]s Michael Marguet's hearsay statement that Carlos Marguet was born in and was a citizen of Mexico." Therefore, Michael Marguet's statements on the Application were hearsay within hearsay under Federal Rule of Evidence 805 and only admissible if they also met some applicable hearsay exception. The problem for the State was that no such exception applied, and the Ninth Circuit thus reversed. Of course, if Carlos Marguet filled out the Application himself, his statements on the form would have been the admissions of a party-opponent, and there would have been no hearsay problem.