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Thursday, April 24, 2014

Hearsay at the Supreme Court: Justices Thomas & Scalia Clash Over Applicability of Hearsay Exceptions in Prado Navarette

A couple of days ago, the Supreme Court decided Prado Navarette v. California, and the most interesting thing about the case from an evidentiary perspective was the dispute between the majority and the dissent over the applicability of two hearsay exceptions. So, what was the nature of that dispute?

In Prado Navarette

On August 23, 2008, a Mendocino County 911 dispatch team for the California Highway Patrol (CHP) received a call from another CHP dispatcher in neighboring Hum­ boldt County. The Humboldt County dispatcher relayed a tip from a 911 caller, which the Mendocino County team recorded as follows: “‘Showing southbound Highway 1 at mile marker 88, Silver Ford 150 pickup. Plate of 8-David­ 94925. Ran the reporting party off the roadway and was last seen approximately five [minutes] ago.’” 

A police officer later pulled over a truck with the same license plate, and he and another responding officer smelled marijuana on their approach to the vehicle and later recovered 30 pounds of the drug in the truck's bed.

One question that the Supreme Court had to answer was whether there was reasonable suspicion to conduct the traffic stop, and, the majority, in an opinion written by Justice Thomas, wrote, inter alia,

There is also reason to think that the 911 caller in this case was telling the truth. Police confirmed the truck’s location near mile marker 69 (roughly 19 highway miles south of the location reported in the 911 call) at 4:00 p.m. (roughly 18 minutes after the 911 call). That timeline of events suggests that the caller reported the incident soon after she was run off the road. That sort of contemporane­ ous report has long been treated as especially reliable. In evidence law, we generally credit the proposition that statements about an event and made soon after perceiving that event are especially trustworthy because “substantial contemporaneity of event and statement negate the likeli­ hood of deliberate or conscious misrepresentation.”...A similar rationale applies to a “statement relating to a startling event”—such as getting run off the road—“made while the declarant was under the stress of excitement that it caused.” Fed. Rule Evid. 803(2)....Unsurprisingly, 911 calls that would otherwise be inadmissible hearsay have often been admitted on those grounds....There was no indication that the tip in J.L. (or even in White) was contemporaneous with the observation of criminal activity or made under the stress of excitement caused by a startling event, but those considerations weigh in favor of the caller’s veracity here

Conversely, the dissent, written by Justice Scalia, contended that

it is questionable whether either the “present sense impression” or the “excited ut­terance” exception to the hearsay rule applies here. The classic “present sense impression” is the recounting of an event that is occurring before the declarant’s eyes, as the declarant is speaking....And the classic “excited utterance” is a statement elicited, almost involun­tarily, by the shock of what the declarant is immediately witnessing....It is the immediacy that gives the state­ment some credibility; the declarant has not had time to dissemble or embellish. There is no such immediacy here. The declarant had time to observe the license number of the offending vehicle, 8D94925 (a difficult task if she was forced off the road and the vehicle was speeding away), to bring her car to a halt, to copy down the observed license number (presumably), and (if she was using her own cell phone) to dial a call to the police from the stopped car. Plenty of time to dissemble or embellish.

Moreover, even assuming that less than true immediacy will suffice for these hearsay exceptions to apply, the tipster’s statement would run into additional barriers to admissibility and acceptance. According to the very Advi­sory Committee’s Notes from which the Court quotes,...dissenting cases addressing an unidentified declarant’s present sense impression “indicate hesitancy in upholding the statement alone as sufficient” proof of the reported event....For excited utterances as well, the “knotty theoretical” question of statement-alone admissibility persists—seemingly even when the declarant is known....It is even unsettled whether excited utterances of an unknown declarant are ever admissible. A leading treatise reports that “the courts have been reluctant to admit such statements, principally because of uncertainty that foundational requirements, including the impact of the event on the declarant, have been satisfied.”...In sum, it is unlikely that the law of evidence would deem the mystery caller in this case “especially trustworthy....”

Now, I will start by saying that I am sypathetic to Justice Scalia's position and think that the two cited hearsay exceptions have been read too broadly. But this fact only reinforces the point that these exceptions have been read broadly and not narrowly as Justice Scalia suggests.

Justice Scalia starts by noting that a classic present sense impression occurs when an event is occurring while a declarant is speaking. Rule 803(1), however, covers "[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it." (emphasis added). I've never seen a court exclude a statememt under Rule 803(1) because it was made a few minutes after an event (as was seemingly the case in Prado Navarette), and I've seen courts admit statements made up to 23 minutes after an event. United States v. Blakey, 607 F.2d 779 (7th Cir.1979).

Second, Justice Scalia doubts that the contemporaneity required for admission of an excited utterance existed because the caller had the opportunity to write down the license plate number, stop, and call 911. But the problem here is that courts in any number of similar cases have found that statements made under similar circumstances qualify for admission under Rule 803(2)See, e.g, United States v. Davis, 577 F.3d 660 (6th Cir. 2009) (declarant saw defendant with a gun in a car, took down the license plate number, walked away, and then called 911).

Third, Justice Scalia noted that there are problems with admitting statements under either hearsay exception if there is no corroborating evidence. But, in Prado Navarette, there was corroborating evidence: The police saw the a truck with the license plate number relayed in the 911 call in the same general vicinity that was relayed by the driver. This would easily be sufficient to satisfy any corroboration concerns. See, e.g, Jara v. Salinas-Ramirez, 65 A.D.3d 933 (N.Y.A.D. 1 Dept. 2009). 

Finally, Justice Scalia expressed concern with the fact that the caller was anonymous. But I have seen any number of cases in which courts have admitted present sense impressions, see, e.g., United States v. Daniels, 2014 WL 503058 (11th Cir. 2014) (911 call), and excited utterances, see, e.g., United States v. Thomas, 453 F.3d 838 (7th Cir. 2006) (911 call), by anonymous declarants.

(Hat tip to my new colleague Seth Stoughton for the link)

-CM

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