Monday, July 19, 2010
What Can Brown Do For You?: First Circuit Upholds Hearsay Ruling Based Upon Defendant's Failure To Prove Declarant Unavailability
Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.
In order for a party to be able to introduce such a statement against interest, however, the party must be able to prove that the declarant is "unavailable" to testify at trial as defined in Federal Rule of Evidence 804(a). This latter requirement was the problem for the defendant in the recent opinion of the First Circuit in United States v. Weekes, 2010 WL 2704610 (1st Cir. 2010).
Jerome Weekes and his associate Kelvin Brown were thrown out of a bar after arguing with another patron. Brockton Police Officer Michael Darrah, who was working as paid security at the bar, heard gunshots coming from their direction, called for backup, and gave chase. Darrah caught Brown as he and Weekes were trying to jump a fence. Weekes cleared the fence but was arrested by another officer a moment later. A search turned up Weekes's cell phone and a loaded gun near where he had landed, and two spent shell casings in the area from which Darrah believed the sounds of shooting had come.
Weekes was indicted on one count of being a felon in possession of a firearm...and was found guilty by a jury.
At trial, Weekes had sought to "testify that Brown had told him that he (Brown) had picked up the gun after it was dropped from a passing vehicle from which the two had been fired upon." Weekes had claimed "that this statement [wa]s not excludable under the hearsay rule because it was a statement against penal interest and Brown was unavailable to testify at trial." The district court, however, precluded Weekes from providing this testimony.
On Weekes' ensuing appeal, the First Circuit affirmed, finding that it did not need to resolve the question of whether Brown's alleged statement qualified as an excited utterance under Federal Rule of Evidence 804(b)(3). This was because, according to the court, Weekes failed to prove Brown's unavailability under Federal Rule of Evidence 804(a). Weekes ostensibly tried to prove Brown's unavailability under Federal Rule of Evidence 804(b)(3), which provides that a declarant is "unavailable" if the declarant
is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.
And, according to the First Circuit,
The sticking point here is the required showing of Brown's unavailability, and we do not think Weekes has demonstrated abuse of discretion in the district judge's finding that Weekes had not "show[n] at least a good faith effort to procure the witness'[s] attendance," a standard we have described as "relatively high."...He apparently did try to find Brown through Brown's friends and family, but he neither subpoenaed Brown at his last known address nor sought help from the district court, local law enforcement, or, curiously, Brown's counsel in the state court action in which the two were co-defendants....It is not enough to point, as Weekes does, to evidence that Brown made the statement; “there must be indicia of trustworthiness of the specific, essential assertions” to be repeated,...and Weekes points to none. There was no abuse of discretion in excluding Brown's hearsay.