Wednesday, July 10, 2013
Federal Rule of Evidence 803(19) provides an exception to the rule against hearsay for
A reputation among a person’s family by blood, adoption, or marriage — or among a person’s associates or in the community — concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.
Meanwhile, Federal Rule of Evidence 804(b)(4) provides an exception to the rule against hearsay if an unavailable declarant makes
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.
It is rare to see a court discuss either of these hearsay exceptions. But, in Porter v. Quaranttillo, 2013 WL 3368888 (2nd Cir. 2013), the Second Circuit discussed both.
In Quaranttillo, Randolph Porter, a naturalized United States citizen, sought a declaratory judgment from the district court that he was entitled to derivative United States citizenship as of his birth. After declaring that certain statements were hearsay, the district court granted summary judgment against Porter and in favor of the United States Citizenship and Immigration Services. Porter thereafter appealed to the Second Circuit.
Porter relied on several affidavits to support his claim. One of these affidavits, submitted by his mother, Mary Diamond, stated that she was born in Brooklyn in 1929 and moved to St. Vincent in 1930 when she was "between one year old and two years old."...Diamond's childhood friend in St. Vincent, Thomas Brown, also submitted an affidavit stating that when they were children, Mary Diamond told him that she moved from New York to St. Vincent "when she was about one and a half years old."...According to Brown, it was "common knowledge" among people who knew Diamond during her childhood that she left the United States "when she was about one and a half years old."...Finally, affidavits from Diamond's third cousin, Porter's siblings, and from Porter himself all stated, in substance, that it was Diamond's "reputation" among her family members that she arrived in St. Vincent from the United States when she was approximately one and a half years old.
On appeal, Porter first claimed that his mother's affidavit was admissible under Federal Rule of Evidence 804(b)(4). The Second Circuit disagreed, finding that
The exception for statements of family history, like the other exceptions to the hearsay rule, is premised on the view that certain categories of statements are "'free enough from the risk of inaccuracy and untrustworthiness'" such that "the test of cross-examination would be of marginal utility."...Rule 804(b)(4) assumes that statements of family history "are likely to be informed by knowledge shared in common among family members on the basis of customs and understandings that are likely to be true."...
Neither the Rules nor the Advisory Committee Notes define the scope of "similar facts of personal or family history," but the Supreme Court has instructed that "absent express provisions to the contrary," we may presume that the drafters of the Rules intended to "adhere to the common law in the application of evidentiary principles."...At common law, the scope of the exception for "declarations of family history" was defined by the following question: "Were the circumstances named in the statement such a marked item in the ordinary family history and so interesting to the family in common that statements about them in the family would be likely to be based on fairly accurate knowledge and to be sincerely uttered?"...
The Diamond affidavit does not meet this test. The affidavit fails satisfactorily to explain how the precise date of relocation was sufficiently significant or interesting or unusual such that it ever became—much less remained for more than eighty years—a subject of presumptively accurate family lore. The affidavit was offered not simply to prove that Diamond left the United States at an early age. The affidavit was offered to prove many years after the event a very narrow range of dates for her travel—a range about which she, because of her age, lacked personal knowledge. We do not believe that family members would ordinarily be so interested in Mary's exact age at relocation as to afford Diamond's imprecisely described but definitely bounded statement the level of inherent reliability required by Rule 804. In other words, although a change in one's country of residence or in one's citizenship might, like the date of one's birth, death, or marriage, be a matter of interest within a family, the district court was properly skeptical that generalized discussions of family history would include statements of age so precise as to foreclose the possibility that Mary was eleven months old but allow the possibility that she was thirteen months old at the time of her relocation, especially when, insofar as the record reflects, nothing appears to have turned on that precise date for the intervening several decades prior to Porter's pursuit of derivative citizenship status. Accordingly, we find no abuse of discretion in the district court's decision to exclude Diamond's affidavit.
Alternately, Porter asserted "that the other affidavits satisfy the parallel exception for statements about "reputation concerning personal or family history," a hearsay exception for which the declarant's availability is immaterial. Fed.R.Evid. 803(19). The Second Circuit again disagreed, concluding that
Statements are sufficiently trustworthy, and thus satisfy this exception, "when the topic is such that the facts are likely to have been inquired about and that persons having personal knowledge have disclosed facts which have thus been discussed in the community." Fed.R.Evid. 803(19)-(21) advisory committee's note.
For the same reasons as those discussed above, we conclude that the district court did not abuse its discretion by ruling that statements of Diamond's family members and friend, concerning Diamond's precise age at relocation, were inadmissible hearsay. We see no reason for concluding that, without more, a statement about a child's age-precise to a range of months as to a time of relocation more than eighty years ago-is as inherently reliable as the types of statements that Rule 803 permits. See 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 803.21, p. 803–140 (J. McLaughlin ed., 2013) ("[A] false reputation as to birth, death, or marriage is not likely to arise at any time. However, there is a greater possibility of inaccuracy concerning other aspects of family history, such as an ancestor's travels.").