March 22, 2013
Freeze Frame: Court of Appeals of Michigan Applies Rule 803(13) to Postcard
Continuing my discussion of lesser known hearsay exceptions, today let's look at Federal Rule of Evidence 803(13), which provides an exception to the rule against hearsay for
A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
I have only seen this Rule and its state counterparts applied in a handful of cases, including Matter of Egbert's Estate, 306 N.W.2d 525 (Mich.App. 1981).In Egbert's Estate,
Charles Ernest Egbert died intestate on June 26, 1978, at the age of 91. On October 5, 1978, following uncontested testimony two days earlier, Beatrice Bedenbaugh and Ernest D. Egbert were determined to be first cousins of the decedent and his sole heirs-at-law. On October 20, 1978, Renee Alice Unseld, hereinafter plaintiff, filed a petition claiming to be the niece and sole heir-at-law of the deceased and asking that all prior proceedings in the estate be quashed and held for nought on the grounds that they were instituted and carried forward by persons with no pecuniary interest in the estate. After a hearing on the petition held on November 20, 1978, the probate court held that plaintiff had failed to convince the court by a preponderance of the evidence that she was, in fact, decedent's niece. Following an unsuccessful appeal to the circuit court, plaintiff appeal[ed]....
Specifically, the plaintiff claimed
that the probate court erred in denying her request to admit into evidence two proposed exhibits to prove her relationship to decedent. The first proposed exhibit, a memorial card, was voluntarily withdrawn by plaintiff's counsel and, therefore, the question of its admissibility [wa]s not properly before this Court.
The second proposed exhibit was a picture postcard. On the front of the postcard is a photograph of a young girl, who plaintiff allege[d] [wa]s herself. On the back is the alleged handwriting of the deceased stating: "Ren Robinson, My Sister, Daughter, Age About 3, /s/Ernest Egbert".
The Court of Appeals of Michigan agreed with the plaintiff, finding that the postcard was admissible under Rule 804(b)(4) which I discussed a few days ago, Rule 803(16) (the ancient documents exception), and Rule 803(13),.
March 21, 2013
Losing My Religion?: Texas Applied Rule 803(11) to Records of Celestial Marriage in FLDS Church
Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.
Like the hearsay exceptions that I have been discussing the last few days, Rule 803(11) is rarely applied. The Rule, however, was applied in the recent opinion of the Court of Appeals of Texas, Austin, in Jessop v. State, 368 S.W.3d 653 (Tex.App.-Austin 2012), a case involving the Fundamentalist Church of Jesus Christ of Latter Day Saints.In Jessop,
Raymond Merrill Jessop and nine other members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), living at the YFZ (Yearning for Zion) Ranch in Schleicher County, Texas, were indicted for sexual assault of a child....Subsequently, a jury convicted appellant and assessed his punishment at confinement for eight years in the Institutional Division of the Texas Department.
During Jessop's trial,
the jury received evidence that both [Raymond] and J. Jessop moved to the YFZ Ranch in Schleicher County, Texas, in December 2003. The evidence showed that appellant was sealed to J. Jessop in a celestial or spiritual marriage for "time and eternity" in August 2004 in a ceremony that was performed on the YFZ Ranch when she was 15 years old. Evidence further showed that after the marriage ceremony, [Raymond] and J. Jessop lived together in the same household, purportedly as husband and wife, including engaging in a sexually intimate relationship. Finally, the evidence showed that one year after being sealed in a spiritual marriage with appellant, J. Jessop gave birth to a daughter when she was 16 years old. Additional evidence documented the birth of a baby girl in August 2005 to "Raymond and [J.] Jessop." DNA testing also established that [Raymond] was the biological father of her child.
After he was convicted, Jessop appealed, claiming that the documents proving the celestial or spiritual marriage were inadmissible hearsay. The State countered that the documents were admissible under Texas Rule of Evidence 803(11). Jessup responded that
the exception for records of a religious organization was not meant to include "the writings of an evangelist" but rather "the words of ordinary men and women in the formation of records of the most important of their own personal affairs." He assert[ed] that this exception—based on "the assumption that the records are credible due to the serious nature of religion itself"—should not apply to the FLDS church records. This argument appears to be based on the fact that the church's leader, the "prophet," is "himself a defendant who believes himself to be hearing the voice of God."
The court sided with the State, concluding that
Rule 803(11) does not depend on the personal views or religious beliefs of those making the records. Nor does Rule 803(11) depend on the popularity or acceptance of the religious organization in question or the character of the organization's leader. Hearsay evidence need only be consistent with the provisions of the exception to be admissible. Here, the documents about which appellant complains were various documents relating to marriages, births, family relationships, personal history, and family history of FLDS members. Further, the evidence at trial demonstrated that these documents were regularly maintained by the FLDS as part of the religious organization of the church.
March 20, 2013
Born in the U.S.A.: District of Oregon Finds Family Members' Statements About Birth Admissible to Prove Citizenship
Yesterday, I posted an entry about Lopez v. U.S. Dept. of State, ex rel. Clinton, 2013 WL 121804 (D.Or. 2013), in which the United States District Court for the District of Oregon deemed admissible a midwife's sworn affidavit that she was present in Washington for the birth of a man who claimed that he was born in the United States. The court deemed that affidavit admissible under Federal Rule of Evidence 804(b)(4), a rarely applied hearsay exception that I had not previously discussed on this blog. The Lopez case also gives me my first chance to discuss Federal Rule of Evidence 803(19), which provides an exception to the rule against hearsay for
Specifically, the court in Lopez
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.
consider[ed] reputation among the petitioner's family and in the community that he or she was born in the United States. United States v. Jean–Baptiste, 166 F.3d 102, 110 (2d Cir.1999) ("[T]here is a special need for this type of evidence," because, as here, "[o]ther evidence of family matters is frequently unavailable, and it is likely that these matters have been sufficiently inquired about and discussed with persons who have personal knowledge so that a trustworthy consensus has been reached."). Statements of family members about matters of family history are "generally presumed to be truthful." U.S. v. Palomares–Munoz, No. 00–50216, 2001 WL 219951, at * *1 (9th Cir.2001), citing FED.R.EVID. 803(19) ("a reputation among a person's family...or among a person's associates in the community...concerning the person's birth..." is not hearsay).
Moreover, the court noted that
At trial the evidence was uniform that Lopez's parents, his siblings, his godmother, and the family's friends consistently told Lopez and acknowledged among themselves he was born in the United States. Each witness who so testified was credible on this point and each identified the source of their information—either personal knowledge or long familiarity with the family—about Lopez's place of birth. There was no evidence at trial that Lopez had been told by anyone he was born in Mexico and no evidence to reasonably suggest that any of the witnesses were untruthful on this point. The court rejects the Department's contention that it should find the testimony of Lopez's family members not credible because they are "interested witnesses" and "potentially biased." Nothing in the witnesses' demeanor or testimony reasonably suggested that any of them were being untruthful in their testimony. The single fact of a familial relationship cannot by itself be enough to undermine the credibility of these witnesses' testimony, as that would effectively nullify Federal Rule of Evidence 803(19), which recognizes as admissible evidence to establish a person's place of birth the testimony of the person's family. Thus, Lopez's testimony that his parents, relatives, and family friends have always told him that he was born in the United States, as well as the corroborating testimony of his siblings and friends, further supports his and his parents' statements that he was born in the United States, and is credible and probative on this point.
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.
March 18, 2013
Dying Declarations and the Hypochondriac
I've been writing a good deal recently about Federal Rule of Evidence 804(b)(2), which provides an exception to the rule against hearsay
In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
A popular question that often comes up in my Evidence classes is what to do with the hypochondriac under Rule 804(b)(2). If a declarant suffers a relatively minor injury, honestly but unreasonably believes that he is going to die, and makes a statement, does that statement qualify as a dying declaration if the declarant is "unavailable" at trial? I think that the answer is "yes." For support, let's look at Satterwhite v. Commonwealth, 2010 WL 2899044 (Va.App. 2010).I actually wrote about Satterwhite a a few years ago when it was decided, and I use it as a hypothetical in my Evidence class:
Hypo 2: Tanisha Naar found her boyfriend, Joyner, lying on her bathroom floor, covered in blood. She went over to Joyner and knelt down beside him as he gasped for breath. Joyner faded in and out of consciousness. Naar called 911. The 911 operator asked Naar what happened. While still on the phone, Naar asked Joyner “who did it?” Breathing heavily, Joyner replied, “Darin Satterwhite did it.” Paramedics arrived soon thereafter and were able to stabilize Joyner, who lived for another six weeks before passing away. Satterwhite is now on trial for murder. He claims that Joyner’s statement is inadmissible as a dying declaration because Joyner’s death was not imminent when he made the statement. How should the court rule? See Satterwhite v. Commonwealth, 2010 WL 2899044 (Va.App. 2010).
I use this hypothetical to demonstrate that what matters for purposes of the dying declaration exception is whether the speaker thinks that he is going to die, regardless of whether he actually is about to die. Moreover, as the court notes, this is a subjective rather than an objective inquiry:
FN5. Nor is it dispositive that others, including medical personnel, discount the likelihood of death. Hall v. Commonwealth, 12 Va.App. 198, 204, 403 S.E.2d 362, 366 (1991) (finding unpersuasive defendant's argument that "emergency room personnel" thought the declarant's "wound was minor"). "When considering the admissibility of dying declarations, the necessary element is a subjective one relating solely to the declarant's expectations." Id.
As the court held in Hall, "Here, we find that the trial court did not err in finding that the evidence demonstrated West's sure belief in his impending death; the statements to the contrary made by others do not require a different result."