Sunday, July 25, 2010
Plain Justice: Court Of Appeals Of Minnesota Finds No Plain Error In Trial Court's Failure To Admit Statement Under Residual Exception
A statement not specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing, to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name, address and present whereabouts of the declarant.
And it is well established under Federal Rule of Evidence 103(d) and Minnesota Rule of Evidence 103(d) that if a party does not raise an issue at trial but does raise it on appeal, the appellate court can reverse if the trial court committed plain error affecting substantial rights. In its recent opinion in State v. Martin, 2010 WL 2813485 (Minn.App. 2010), the Court of Appeals of Minnesota found that the trial court did not commit plain error in failing to admit a statement that the defendant claimed was admissible under Minnesota Rule of Evidence 807 for the first time on appeal. My question is whether a court could ever find plain error under such circumstances.
In Martin, De‘Arlo De'Laen Martin was convicted of first- and second-degree assault. At trial, Martin tried to introduce into evidence an exculpatory statement. Unfortunately, the opinion of the Court of Appeals of Minnesota did not provide any details regarding the statement, but it did indicate that Martin
urged admission of the exculpatory statement under Minn. R. Evid. 804(a)(5), which permits admission of a hearsay statement when the declarant is unavailable and "the proponent of the statement has been unable to procure the declarant's attendance...by process or other reasonable means." The district court refused to accept the statement because appellant had not personally served the declarant with a subpoena and therefore the declarant was not unavailable under the rule....This ruling was not an abuse of discretion.
(Although the court did not elaborate on this point, it is important to note that this statement of Rule 804(a)(5) is incorrect. If Martin were "unable to procure the declarant's attendance...by process or other reasonable means," that would merely render the declarant "unavailable," and Martin would still have to establish that the exculpatory statement qualified for admission under one of the hearsay exceptions contained in Minnesota Rule of Evidence 804(b).)
The court then noted that Martin claimed on appeal that the trial court should have admitted the exculpatory statement under Minnesota Rule of Evidence 807. The court disagreed, finding that
Generally, an issue cannot be raised for the first time on appeal....We nevertheless can review an issue not raised to the district court if it “implicates a plain error affecting substantial rights."...An error is plain if it is clear and obvious....If we determine that there was plain error that affected a party's substantial rights, we must evaluate whether the error should be addressed in order to ensure fairness and the integrity of the judicial process....
Because [Martin] did not offer the exculpatory statement under the residual exception, he did not provide a showing of "equivalent circumstantial guarantees of trustworthiness."...The district court did not have the benefit of the arguments that [Martin] makes here on appeal. Further, the declarant was not available for cross-examination, and his statement had not been subject to examination in any tribunal, something which can supply circumstantial guarantees of trustworthiness....
Finally, because a police witness testified as to the content of the exculpatory statement, [Martin]'s substantial rights were not affected. The district court did not commit plain error by refusing to admit the exculpatory statement .
I agree with the court's conclusion and wonder how an appellate court could ever find that a trial court committed plain error by failing to admit a statement under the residual exception. As noted, for a statement to be admissible under the residual exception, the proponent must provide pre-trial notice of its intention to admit the statement, which otherwise would not qualify for admission, under the exception. If an appellate court is reviewing for plain error, presumably the party did not provide this pre-trial notice, and the court would have no reason to believe that the statement would be admissible. How, then, could a court ever find plain error under these circumstances?