EvidenceProf Blog

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

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Friday, 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).

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March 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 21, 2013

Losing My Religion?: Texas Applied Rule 803(11) to Records of Celestial Marriage in FLDS Church

Similar to its federal counterpartTexas Rule of Evidence 803(11) provides an exception to the rule against hearsay for

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.

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March 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, 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

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.

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March 20, 2013 | Permalink | Comments (0) | TrackBack (0)

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.

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March 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, 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).

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March 18, 2013 | Permalink | Comments (1) | TrackBack (0)