EvidenceProf Blog

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

Wednesday, February 5, 2014

(Un)available For a Limited Time: Court of Appeals of Idaho Wrongly Precludes Statement Against Interest Appeal

Similar to its federal counterpartIdaho Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for 

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject declarant to civil or criminal liability, or to render invalid a claim by declarant against another, that a reasonable man in declarant's position would not have made the statement unless declarant believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. 

But such a "statement against interest" is only admissible if the declarant is "unavailable" at trial under Idaho Rule of Evidence 804(a). So, let's say that a trial court deems a declarant "unavailable" under Rule 804(a) but deems the declarant's statement inadmissible under Rule 804(b)(3). Can an appellate court affirm that ruling by concluding that the declarant was actually available? According to the recent opinion of the Court of Appeals of Idaho in State v. Fair, 2014 WL 403179 (Idaho App. 2014). I disagree.

In Fair, Lee Fair was charged with the aggravated assault of Gerald Blakely.

At trial, Fair sought to exculpate himself by showing that it was another person, Richard Laine, who struck Blakely. The trial court permitted Fair to submit an offer of proof concerning the alleged alternative perpetrator. Fair called several witnesses in support of this contention. The first witness was Laine himself, who began by asserting his Fifth Amendment right against self-incrimination. However, after he was instructed by the district court that he could assert that privilege only in response to individual questions, he never invoked the privilege again. Laine denied being at Dino's during the month of October 2010. While he admitted that he had spoken with a defense investigator, he testified that he had not told the investigator he was at Dino's at that time. The defense asked Laine numerous questions, all inquiring as to whether he ever admitted to being at the bar, striking Blakely, or causing any particular injury. He denied each allegation.

After calling Laine, Fair called several other witnesses as part of his offer of proof. For instance,

Larson Firth, Laine's former girlfriend,...testified that Laine had told her he had been involved in a fight at Dino's between August and October of 2010 [the charged crime took place at Dino's in October 2010]. According to her, Laine said that people at the bar had intended to assault Fair and that Laine intervened by striking a person and knocking that person out.

The judge deemed the testimony regarding all of Laine's statements inadmissible as failing to satisfy the requirements of Rule 804(b)(3).

After Fair was convicted, he appealed, claiming that the testimony by witnesses such as Firth should have been deemed inadmissible because Laine's statements did qualify as statements against interest under Rule 804(b)(3). The Court of Appeals of Idaho disagreed, concluding that

The district court here concluded that Laine was unavailable as a witness but excluded the hearsay evidence on other grounds. We conclude that we need not address the district court's rationale for excluding the evidence because Fair has not shown that Laine was unavailable as a witness. Where a decision of the trial court was correct, an appellate court may affirm the decision on grounds differing from those relied upon by the trial court.

I don't agree with this conclusion at all. As noted, the district court deemed Laine "unavailable." If the district court had responded to Fair's offer of proof by saying, "You haven't proven that Laine was unavailable," defense counsel ostensibly would have re-called Laine and made sure that he invoked the Fifth Amendment in response to specific questions. But defense counsel did not need to do this because the district court had already deemed Laine "unavailable." I therefore think it's ridiculous that the Court of Appeals failed to reach the substance of Fair's Rule 804(b)(3) appeal.



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Isn't the actual problem that defense counsel forgot to ask Laine if he'd made those statements to Larson? Then it would just come in as impeachment evidence, but it's better than having the judge get rid of it entirely.

Posted by: nidefatt | Feb 5, 2014 7:07:18 AM

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