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Sunday, January 2, 2011

Polly Wants Some Hearsay: Are Repeated Statements By Parrots Hearsay?

A few weeks ago, there was a discussion on the Evidence Professor listserv about a recent article in the ABA Journal:

Parrot’s Chilling Comments Aid Police in Elder Abuse Case

By Martha Neil

Dec 8, 2010, 01:12 pm CST

A talking parrot provided what could be taken as chilling evidence in the case of a 60-year-old South Carolina woman charged with neglecting her 98-year-old mother, who was found on the verge of death suffering from severe bedsores.

"The parrot was mimicking, 'Help me. Help me.' Then he would laugh," St. George Police Lt. Eric Bonnette tells the Charleston Post and Courier. "We think he was mimicking the mother when he said, 'Help me. Help me,' and mimicking the daughter when he laughed."

Anne Copeland died at a hospital Tuesday after being found by authorities in poor condition at her home Monday, the newspaper says. Her daughter, Gloria Park Clark, has been charged with abuse and neglect resulting in the death of a vulnerable adult.

Here are my thoughts: 

South Carolina Rule of Evidence 801(c) defines hearsay as

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Meanwhile, South Carolina Rule of Evidence 801(b) defines a declarant as "a person who makes a statement."

At first blush, then, there would seem to be no problem with the prosecutor bringing the parrot into the courtroom to tell his tale. A parrot is an animal, not a person, so a parrot cannot be a declarant. And because a parrot cannot be a declarant, the parrot's "statements" cannot constitute hearsay. Indeed, one of the people leaving comments on the ABA Journal story cited to one of my posts on the blog in which I cited to an opinion holding that the barks of a dog could not constitute hearsay because a dog is not a declarant.

But, I think that the case is different with a parrot. In essence, a parrot is like a tape recorder. Therefore, the prosecutor bringing the parrot into the courtroom to repeat statements made by the victim and defendant would be similar to the prosecutor bringing a tape recording of statements made by the victim and the defendant. In the latter case, the subject statements would clearly constitute hearsay, and I think that the same holds for the former case.

That said, based upon the brief facts provided in the above article, it seems that the defendant's statements would be admissible as admissions by a party-opponent. Meanwhile, it seems that the victim's statements would be admissible as present sense impressions, excited utterances, and dying declarations.

-CM

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Comments

"a parrot is like a tape recorder"

True, but misleading. A parrot is like an unreliable digital recorder that replays clips randomly and without context. Whatever minimal relevance there might be to the fact that the victim once said "help me" and that the defendant once laughed is far outweighed by the prejudice of linking the two events or allowing the jury to infer that either had anything to do with the incidents alleged.

Evidence about the parrot should have been excluded on a simple application of 403.

Posted by: Deryl Dantzler | Jan 3, 2011 6:01:27 AM

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