Monday, November 30, 2009
No Virtual Impeachment: First Circuit Affirms Opinion Precluding Impeachment Of Hearsay Declarant Despite Disagreeing On Rationale
Either through deliberate tactical choices, or simply as a result of precedent and inertia, our traditional approach to hearsay and confrontation is mired in exclusionary thinking. Whether one consults reported case law, or basic texts on trial advocacy, little is said of the impeachment of hearsay declarants. John G. Douglass, Beyond Admissibility: Real Confrontation, Virtual Cross-Examination, and the Right to Confront Hearsay, 67 GEO. WASH. L. REV. 191, 252 (1999).
As Douglass, now the Dean of the University of Richmond School of Law, went on to note in his seminal 1999 law review article, "[t]hat omission, however, is not born of impossibility," with Federal Rule of Evidence 806 and many state counterparts providing that:
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
According to Douglass, this Rule allows for "virtual cross-examination." The problem, though, is that this Rule is "seldom used," meaning that both attorneys and judges often do not know when it applies (and when it doesn't). One clear example of this problem can be found in the recent opinion of the First Circuit in United States v. Rodriguez-Berrios, 573 F.3d 55 (1st Cir. 2009).
In Rodriguez-Berrios, Eddie Samir Rodríguez-Berríos was found guilty of committing a carjacking that resulted in the death of his ex-wife. At trial, the prosecution called a co-worker and friend of the victim to testify about statements she made accusing Rodríguez-Berríos of abuse and indicating that she was afraid of him. Over Rodríguez-Berríos' objection, the district court admitted these statements under the excited utterance (Rule 803(2)) and state of mind (Rule 803(3)) exceptions to the rule against hearsay (on appeal, the First Circuit actually found that these exceptions did not apply but found harmless error). Thereafter, Rodríguez-Berríos sought to introduce tape recordings of the victim talking to passengers in her vehicle to impeach her hearsay statements.
The district court, however, found these recordings inadmissible for two reasons: "The court first ruled that the tapes could not be used under Rule 806 to impeach the victim's allegations because she was not a 'declarant,' stating that '[t]he definition of declarant under the rules of evidence specifically 801, is a person who takes the witness stand." Second, "[t]he court later stated that the evidence was inadmissible to impeach the victim under Rule 806 because the statements [Rodríguez-Berríos] sought to impeach were not hearsay but rather 'exceptions to hearsay.'"
After Rodríguez-Berríos was convicted, he appealed, claiming, inter alia, that the district court erred in precluding this impeachment. The First Circuit agreed with Rodríguez-Berríos that the reasoning used by the district court was incorrect but found that its ultimate conclusion was correct. First, it found that the district court erred by finding that a declarant is "a person who takes the witness stand." The First Circuit correctly noted that under Federal Rule of Evidence 801(b), a declarant is merely "a person who makes a statement;" there is no requirement that the declarant take the witness stand. Indeed, Federal Rule of Evidence 804(a)(4) and Federal Rule of Evidence 804(a)(5) set forth situations where declarants are "unavailable" because they do not take the witness stand. Second, the appellate court found that the district court erred in finding that the victim's statements were not hearsay, noting that statements deemed admissible under an exception to the rule against hearsay are necessarily hearsay as defined in Federal Rule of Evidence 801(c).
So, why did the First Circuit affirm? The court noted, "[W]e are 'not wedded to the lower court's rationale, but, rather, may affirm its order on any independent ground made manifest by the record.'" The problem for Rodríguez-Berríos in this regard was that he claimed that the tape recordings contained prior inconsistent statements by the victim, but the recordings actually corroborated the hearsay statements admitted at trial. According to Rodríguez-Berríos, it was not the substance of the victim' statements on the recordings but her tone and attitude as reflected on the recordings which revealed that she was not scared of Rodríguez-Berríos and rendered the statements inconsistent. The First Circuit rejected this argument, finding that there was nothing on the tapes indicating that Rodríguez-Berríos did not abuse the victim or that she was not afraid of him.
Without hearing that tapes myself, I have no basis for agreeing or disagreeing with the court, but the opinion does raise an interesting question: Can a prior statement be deemed inconsistent with trial testimony (or hearsay statements admitted at trial) based on tone, not substance? If a defendant testifies that he was watching a football game at the time of the crime for which he was charged, could the prosecution impeach him through evidence that he sarcastically told a friend that he was watching a football game at the time of the crime? It's an interesting question which the court in Rodriguez-Berrios did not have to address, but I could see it arising in a case down the road.