Saturday, November 14, 2009
A Body Treatise: Court Of Appeals Of Minnesota Finds Learned Treatise Exception Didn't Apply To Amnesty International Report
Like its federal counterpart, Minnesota Rule of Evidence 803(18) provides an exception to the rule against hearsay for "statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice" to the extent that those statements are "called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination." The Rule goes on to provide, however, that "[i]f admitted, the statements may be read into evidence but may not be received as exhibits." The problem for the appellant in In re Welfare of G.S.G., 2009 WL 3736134 (Minn.App. 2009), was that he could not meet the requirements of this hearsay exception.
The charges against...G.S.G. arose out of an incident in which [G.S.G.] stabbed and beat his neighbor to death. In a statement to police, [G.S.G.] reported that early one evening, the victim had touched [his] penis and tried to pull down [his] pants. Several hours later, [G.S.G.], who was 15 years old at the time, went to the victim's house and waited until the victim was alone. [G.S.G.] entered the victim's home, stabbed him repeatedly, and then choked him. [G.S.G.] was charged with first-degree premeditated murder, and the state moved to certify [G.S.G.] for adult prosecution....[G.S.G.]'s mother is Native American, and his father is Latino. His mother is a member of the Standing Rock Sioux Tribe, and [G.S.G.] has lived in Minnesota and on the Standing Rock Indian Reservation in South Dakota. [G.S.G.]'s father had difficulty finding work on the reservation, so he frequently returned to Minneapolis to work....[G.S.G.] sometimes accompanied his father to Minneapolis.When [G.S.G] lived on the reservation, his mother and half-sisters used alcohol and drugs to excess and often physically abused [G.S.G.]. [G.S.G.] began regularly using alcohol and marijuana when he was between eight and ten years old. [G.S.G.], who was subjected to racial taunting by peers, was involved in numerous fights. [G.S.G.] estimated that he was in about 30 fights on the reservation and admitted using weapons, including rocks, bricks, and glass bottles....While visiting his grandmother sometime between the fall of 2006 and the spring of 2007, [G.S.G.] was sexually assaulted by his uncle, who penetrated [G.S.G.] anally.
At trial, G.S.G. "intended to call a witness to testify about [G.S.G.]'s family history, including the prevalence of rape, and how intergenerational trauma affected [G.S.G.] and tied into his case." The problem for G.S.G. was that this witness "was ill at the time of trial." G.S.G. thus "sought to introduce a 103-page report by Amnesty International, titled Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, which included excerpts about the Standing Rock Reservation."
According to the district court judge, G.S.G's problem in this regard was that the report did not qualify for admission under Minnesota Rule of Evidence 803(18). The judge found that
[E]ven if [[G.S.G]'s intended witness] were testifying, going back to the exact same rule that [[G.S.G.]'s counsel] started reading from, the Rule of Evidence 803, Subd. 18, the article would never have been admissible even if [the witness] testified because that rule ends by stating, "statements can be read into evidence that may not be received as exhibits," and those statements were from inside of a larger publication that the expert relied on.And so I would not have been able to accept that article into evidence, as a whole anyway, under that Rule of Evidence. And I couldn't find any other Rule of Evidence that applied to the admissibility of publications, only to foundation. And, I agree, I can take judicial notice that that's a learned treatise, but it doesn't make it admissible, itself.
Upon G.S.G.'s subsequent appeal, the Court of Appeals of Minnesota agreed with the district court judge, finding that G.S.G.
cites no authority showing that the district court erred in its analysis of rule 803(18) and does not cite any other rule of evidence that applies to the Amnesty International publication. Therefore, we conclude that [G.S.G.] has not met his burden of demonstrating that the district court clearly abused its discretion in refusing to admit the publication, and we affirm the district court's evidentiary rulings.