EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, July 24, 2012

This IS A Recording: Court Of Appeals Of Utah Bypasses Rule 803(5) Issue By Finding Harmless Error

Similar to its federal counterpartUtah Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A record that:

(A)   is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B)   was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C)   accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

In In re J.H., 2012 WL 2924061 (Utah App. 2012), the juvenile court almost certainly erred by allowing for the admission of a journal into evidence in violation of Rule 803(5). So, why didn't the Court of Appeals of Utah acknowledge this mistake?

In J.H., E.O. (Mother) appealed a juvenile court's order awarding permanent guardianship of her children to their maternal grandparents. The facts adduced at trial indicated that

Mother left the children to be raised by their grandparents for several years, during which time period she abused drugs and alcohol, lacked stable employment, was homeless, and was incarcerated. The juvenile court found specific instances of neglect including an episode where Mother was absent and she left her child unattended to care for younger children between the ages of two and five years old. The juvenile court also determined that Mother neglected the children by subjecting the children to a traumatic situation by discussing the legal proceedings with the children contrary to the court's order. The juvenile court found that the totality of Mother's behavior relating to the violation of the court's order rose to the level of the neglect of both children

Some of the facts came from the journal of the maternal grandmother, who had an insufficient recollection to testify completely at trial

In her appeal, E.O. claimed that the juvenile court erred by allowing the journal to be admitted into evidence in violation of Rule 803(5). The Court of Appeals of Utah, however, refused to reverse, finding that

Mother fails to demonstrate that the juvenile court's decision to admit the grandfather's journal as an exhibit resulted in an injustice or that admitting the grandfather's journal affected the outcome of the proceedings. Even were we to assume that the juvenile court erred by admitting the grandfather's journal, there is no reasonable likelihood that the asserted error affected the juvenile court's determination that Mother neglected her children as there was sufficient, independent evidence to support the juvenile court's decision.

It is tough for me to challenge the court's conclusion because I'm lacking in information. What independent evidence was there to support the court's decision? How much was the jury influence by the journal? The court's opinion doesn't tell us about these factors. What the opinion also doesn't tell us is what seems abundantly clear: The juvenile court erred by allowing the proponent to introduce the journal as an exhibit in violation of Rule 803(5).



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