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Univ. of South Carolina School of Law

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Thursday, March 19, 2009

Like A Virgin (Islands' Opinion)?: Supreme Court of V.I. Finds 1953 Uniform Rules Of Evidence Apply In Criminal Trials

The 1953 Uniform Rules of Evidence were kind of like Betamax or HD DVD: they just never really caught on and were eventually supplanted by a better competitor. See Michael Teter, Acts of Emotion: Analyzing Congressional Involvement in the Federal Rules of Evidence, 58 Cath. U. L. Rev. 153, 158 (2008).  For the Uniform Rules of Evidence, the competitor was the Federal Rules of Evidence, and the Uniform Rules of Evidence raised he white flag in 1974 when they were amended to be "nearly identical to the then-proposed Federal Rules of Evidence." Deirdre M. Smith, An Uncertain Privilege: Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in the Federal Courts, 58 DePaul L. Rev. (2008). The Uniform Rules of Evidence were amended again in 1999 (and again in 2005) but I'm not sure that many people noticed; for most intents an purposes, the Federal Rules of Evidence are the only game in town.


But according to the recent opinion of the Supreme Court of the Virgin Islands in Phillips v. People, it's the 1953 Uniform Rules of Evidence that reign supreme in the Virgin Islands' non-federal courts.  And based upon the way that those Rules treat hearsay, other courts might want to reconsider the way that they do business.

In Phillips, Sinclair Phillips appealed from his convictions for burglary in the second degree and assault in the third degree based upon his alleged attack on Paulious Stoute, a "deaf mute," in Stoute's home.  At Phillips' trial, some of the most damaging testimony rendered against him came from James Charles, a Virgin Islands' police officer, which, according to Phillips, consisted mostly of "inadmissible hearsay concerning the victim's purported [']statements['] identifying [Phillips] as the perpetrator." This testimony was especially important because "[o]nly in a few limited instances did Stoute's testimony," which was given through a sign language interpreter, "cover what he told the police when he described and identified Phillips."  

Now, I don't have the trial transcript before me, so I can't say how a court using the Federal Rules of Evidence would have treated Charles' testimony, but I would guess that some of it would have been deemed inadmissible hearsay under Federal Rule of Evidence 802 while other portions would have been admissible under Federal Rule of Evidence 801(d)(1)(C) , which indicates that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...one of identification of a person made after perceiving the person.

On Phillips appeal, however, the Supreme Court of the Virgin Islands was able to find that all of Charles' testimony was admissible, and it did so by resolving an existing split among V.I. courts as to whether the Federal Rules of Evidence or the 1953 Uniform Rules of Evidence apply in criminal cases in the Virgin Islands' non-federal courts. According to the V.I. Supremes, the latter apply because virtually all of the 1953 Uniform Rules of Evidence were codified in 5 V.I.C. Sections 751-956.

The problem with this analysis is that the editorial commentary to these Sections referred to former Federal Rule of Criminal Procedure 54, a rule that 

“direct[ed] all Article III courts and congressionally-created courts in United States territories, including the District Court of the Virgin Islands,” to “use the Federal Rules of Criminal Procedure in their criminal proceedings...." Because Federal Rule of Criminal Procedure 26 "mandate[d] that courts using the Federal Rules of Criminal Procedure are obligated to use the Federal Rules of Evidence as well," the commentary to the Uniform Rules "conclude[d] that the Uniform Rules cannot apply in criminal matters in the Virgin Islands."  

In turn, the problem with this reasoning is that 

though Rule 54 "directly allude[d] to the District Court of the Virgin Islands, it d[id] not mention the [Superior] Court of the Virgin Islands or any other local court...."  Thus, while "the District Court of the Virgin Islands must rely upon the Federal Rules to resolve its evidentiary quandaries, no such compulsion prevents the [Superior] Court of the Virgin Islands from relying upon the evidentiary code that was adopted by the Legislature...." Furthermore, "[w]hen originally made, the editor’s comment that the Uniform Rules do not apply to criminal actions in the Virgin Islands was technically correct as, at that time, all criminal cases were tried in the District Court...." The District Court’s exclusive jurisdiction over criminal cases arising under either federal or local law lasted until 1984, when Congress, through an amendment to the Revised Organic Act of 1954..., bestowed concurrent jurisdiction to the Superior Court—then known as the Territorial Court—over criminal offenses arising out of violations of local law."

Thus, the V.I. Supremes found that non-federal V.I. courts are not bound by the Federal Rules of Evidence and that they should use the 1953 Uniform Rules of Evidence as codified in 5 V.I.C. Sections 751-956 (The District Court must use the Federal Rules of Evidence pursuant to Federal Rule of Evidence 1101(a)).

So, why is this so important?  Well, 

Title 5, section 932 of the Virgin Islands Code defines hearsay and exceptions, in part, as: 

Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except: 
 
(1) Previous statements of persons present and subject to cross-examination. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness.  

In other words, as long as the declarant testifies at trial, there is no hearsay problem.  Obviously, this rule greatly reduces the number of hearsay problems, which in turn reduces headaches for lawyers and attorneys alike.  The question is whether it allows for the introduction of testimony that is too unreliable.  I'm not sure where I fall on the issue, but I think that it is one that merits further consideration.

As a final note, I want to point out that this hearsay difference is not the only difference between the Federal Rules of Evidence and the 1953 Uniform Rules of Evidence.  As noted, Stoute was a deaf mute requiring a sign language interpreter.  Well, under the Uniform Rules of Evidence-V.I. Code, the trial court did not need to treat that interpreter as an expert witness while Federal Rules of Evidence 603 states that

An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. 

(Hat tip to Anthony Ciolli for the link to the opinion)

-CM

           

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