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Univ. of South Carolina School of Law

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Tuesday, May 19, 2009

Plain Truth: Court Of Appeals Of Minnesota Fails To Conduct Plain Error Review Of Business Records Ruling

In relevant part, Federal Rule of Evidence 803(6) provides a exception to the rule against hearsay for 

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

Thus, before a business record/report may be admitted under Rule 803(6), the proponent must have a custodian or other qualified witness testify that the record/report satisfies all of the elements of the Rule. Ostensibly, the prosecution failed to present such a witness in State v. Forbes, 2009 WL 1181914 (Minn.App. 2009), but, based upon the defendant's failure to object, the Court of Appeals of Minnesota concluded that he had waived the issue on appeal. I disagree.

In Forbes, after allegedly throwing a rock through his neighbor's window, Derrick Lamont Forbes was charged with third-degree criminal damage to property. The charged offense was committed on September 2, 2007, and effective August 1, 2007, the legislature raised the damages range for third-degree criminal damage to property from $250-$500 to $500-$1,000. At trial, "the state offered only one piece of evidence, Exhibit 9, to prove the value of the damage to the window." Exhibit 9 was a written estimate that the neighbor's friend obtained from a glass service company; the report indicated that it would cost $843.75 to replace the window. The estimate, however, was introduced through the testimony of a police sergeant; neither the neighbor's friend nor anyone from the glass service company testified at trial.

Forbes was subsequently convicted and appealed, alleging, inter alia, that Exhibit 9 was improperly admitted and that the district court erred in instructing the jury. According to the Court of Appeals of Minnesota, the problem with Forbes' first argument was that he did not object to the admission of Exhibit 9 at trial. According to the court,

“Evidentiary rulings are committed to the trial court's discretion and will not be reversed absent a clear abuse of discretion....” But appellant did not object to the admission of the estimate at trial....While this court may review error not objected to at trial under a plain-error standard,...the rule that failure to object to the admissibility of evidence waives the right to an appeal has an important purpose:

The purpose is simply to require objection to evidence offered at the trial to be made at the time so clearly that the objection may be obviated or if not, then the testimony excluded, without the cumbersome necessity of a new trial. If a new trial is...granted because of the reception of...evidence it will mean that objection to evidence may be made for the first time in [a reviewing] court. The vice of this rule is apparent and far-reaching. The adoption of such a rule will mean that an attorney for the defendant may sit back and permit the reception of any evidence offered, assured that if incompetent evidence gets into the case, [a reviewing court] will set aside any adverse verdict. It will mean that if a verdict of guilty is to stand, the court and county attorney must try the defendant's case. Any such rule is wrong in principle....Objections which counsel do not see fit to urge should be deemed waived....

Accordingly, we decline to address on appeal whether Exhibit 9 was inadmissible hearsay.

Did I miss something? If Forbes objected, the court would have reviewed for abuse of discretion; because he did not, the court was supposed to review for plain error, but it didn't. Instead, it declined to address the admissibility of Exhibit 9 on appeal. And this was despite the fact that the exhibit was the only evidence of the value of the damage to the window and despite the fact that it was clear that it was not introduced through a qualified witness.

The only thing that I can think is that the Court of Appeals of Minnesota declined to address the issue because it found that Forbes' second argument was sufficient to reverse the verdict against him. As noted, the charged offense was committed on September 2, 2007, and effective August 1, 2007, the legislature raised the damages range for third-degree criminal damage to property from $250-$500 to $500-$1,000. The problem is that the district court did not update its jury instruction; instead, the jury was instructed to find only whether the damage appellant caused reduced the value of the window by more than $250.

Forbes didn't object to this jury instruction either, but the Court of Appeals of Minnesota did find plain error in this jury instruction and thus reversed. Therefore, it didn't matter what the court found with regard to Exhibit 9, but if the court found plain error with regard to the jury instruction, why didn't it find plain error with regard to Exhibit 9? 

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/05/8036state-v-forbesnot-reported-in-nw2d-2009-wl-1181914minnapp2009.html

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Comments

I have a suggested alternative explanation. Review for plain
error is in general a matter of discretionary not mandatory review.
State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003); Minn. R. Crim. P.
31.02 (“Plain errors or defects affecting substantial rights may be
considered by the court . . ..”).

Regarding the exercise of discretion in this case, the variance appears
linked to the difference in the type and circumstances of the errors.
With regard to the jury instructions, Minnesota law provides that “the
court shall state all matters of law which are necessary for the
jury’s information in rendering a verdict.” Minn. R. Crim. P.
26.03, subd. 18(5). While there are certainly limitations, the court
has some duty to provide a proper instruction irrespective of the
failure of the defendant to request a proper jury charge.
Alternatively, the Minnesota appellate court appeared more concerned
with vindicating principles of waiver with regard to failure to object
to the admission of evidence, which could have been admitted by calling
a witness from the glass company if a proper objection had been raised.
By reviewing for plain error as to the jury instruction but not the
evidentiary error, the appellate court helps uphold the duty of the
trial court to provide a proper instruction as to the elements of the
offense regardless of an omission by the defendant but maintains the
responsibility upon the defendant to timely object on an evidentiary
issue that could have been presumably properly addressed with the
evidence being admitted had such an objection been timely raised.

Posted by: Jeffrey Usman | May 19, 2009 4:13:06 PM

Thanks, Jeffrey. I agree that there were certainly stronger grounds for reversing based upon the jury instruction than there were for reversing based upon the admission of Exhibit 9. I just hope that this was the only reason that the court did not address the admissibility of Exhibit 9 because it was the only evidence establishing the amount of damage, and it was plainly not introduced through a qualified witness. But, as you note, appellate courts should more readily find plain error based upon court errors as opposed to litigant errors.

Posted by: Colin Miller | May 20, 2009 5:07:50 AM

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