Tuesday, March 19, 2013
We Are Family: District of Oregon Finds Midwife's Statement Admissible Under Rule 804(b)(4) in Citizenship Dispute
Federal Rule of Evidence 804(b)(4) provides the following exception to the rule against hearsay:
(4) Statement of Personal or Family History. A statement about:
(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.
Rule 804(b)(4) has to be one of the least applied hearsay exceptions. A search of 804(b)(4) in ALLFEDS in Westlaw returns only 86 results, and many of these cases don't even involve an application of the Rule. For instance, there are three 2013 cases in which the Rule has been mentioned but only one in which it was applied. In Lewis v. Likens, 2013 WL 633208 (S.D.W.Va. 2013), the court noted that a conversation did "not appear to qualify as a statement of personal or family history, which is the only other possible Rule 804 exception that could apply. See Fed R. Evid. 804(b)(4)." And, in Cardenas v. Whittemore, 2013 WL 244375 (C.D.Cal. 2013), the court noted that a statement did "not fall within exceptions to the hearsay rules in Fed.R.Evid. 803(19) or (20); 804(b)(4); or 807."
In Lopez v. U.S. Dept. of State, ex rel. Clinton, 2013 WL 121804 (D.Or. 2013), however, the court did find that Rule 804(b)(4) applied.
In Lopez, Angel Alcantar Lopez applied for a United States passport and the United States Department of State denied his application because it deemed insufficient his proffered evidence of birth in the United States. Lopez thereafter filed a lawsuit, seeking a declaration from the United States District Court for the District of Oregon that he "is a United States Citizen and is entitled to proof of his citizenship in the form of a United States Passport[.]"
The court agreed, finding in part that
Lopez...produced [midwife Katherine] Frahs's October 16, 2008, sworn affidavit...attesting to her presence at Lopez's birth in Bingen, Washington, Frahs's testimony concerning Lopez's birth in Washington, as set forth in her sworn affidavit and as told orally to Lopez and others, is admissible under FED.R.EVID. 804(b)(4)(B). First, Frahs is deceased and thus was unavailable for trial. Second, the evidence was sufficient to establish that at the relevant time (the time period including Lopez's birth), Frahs was so intimately associated with Lopez and his family that her testimony is likely to be accurate.