EvidenceProf Blog

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

Similar to its federal counterpart, Texas 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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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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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.

Continue reading "We Are Family: District of Oregon Finds Midwife's Statement Admissible Under Rule 804(b)(4) in Citizenship Dispute"

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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Until My Dying Day: Were There Any Abortion Cases With True Dying Declarations Admitted?

Federal Rule of Evidence 804(b)(2) 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 couple of days ago, I noted that the Advisory Committee indicated that some courts applied the common law analogue to this modern "dying declaration" exception in abortion cases. After some research, however, I haven't found any such cases. Let's take a look at the opinion of the Supreme Court of Pennsylvania in Railing v. Commonwealth, 1 A. 314 (Pa. 1885).

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Speaking Ill Of The Dead: D.C. Court Of Appeals Grants New Trial Based on Failure to Impeach Dying Declarant

Federal Rule of Evidence 804(b)(2) 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.

So, how often is a defendant found "not guilty" when the prosecution admits a dying declaration against him? In Kigozi v. United States, 55 A.3d 643 (D.C. 2012), defense "counsel candidly admitted that a dying declaration is 'very powerful,' and that he had 'only won one case ever where there was a dying declaration out of all [the] cases [he had] ever won.'" So, what else about Kigozi was interesting?

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The Talking Dead: 4 Observations About the Dying Declaration Exception Based on the Advisory Committee's Notes

Federal Rule of Evidence 804(b)(2) 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.

Working off of my post from yesterday about dying declarations being admissible for ("The defendant didn't do it") and against ("The defendant didn't do it"), I wanted to take a look at the Advisory Committee's Note to Rule 804.

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It Wasn't Him: Mattox v. United States & The Use of Dying Declarations by Defendants

Federal Rule of Evidence 804(b)(2) 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.

Typically, this "dying declaration" exception is considered to be an arrow in the prosecutorial quiver, with the victim's statement that the defendant shot/stabbed/choked him being used to prove his guilt. But that's not always the case, with the Supreme Court's opinion in Mattox v. United States, 146 U.S. 140 (1892) being the classic example of a dying declaration being used to exonerate the defendant.

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Did You Know That?: NY Case Reveals Personal Knowledge Requirement for Hearsay Statements

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.

The opinion of the United States DIstrict Court for the Eastern District of New York in United States v. Velentzas, 1993 WL 37339 (E.D.N.Y. 1993), however, notes an important limitation on the dying declaration exception and all hearsay exceptions.

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As We Lay Dying, Take 2: The Admissibility of Dying Declarations In Multiple Victim Situations

Following up yesterday's post about the admissibility of dying declarations in multiple victim situations, today let's look at the opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Key, 407 N.E.2d 327 (Mass. 1980).

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As We Lay Dying: The Admissibility of Dying Declarations In Multiple Victim Situations

In a comment on my post from a few days ago, Fred Moss asked:

How about this hypo? A is on trial for the murder of B by shooting him. A shot several times in killing B. C -- the declarant -- was hit by one of the shots. As he lay on the street he tells the EMT, "I hear the wings of the Angel of Death hovering over me. Tell my wife I love her. And, by the way, I was shot by A as he was shooting at B." C either dies or cannot testify at A's trial because he's in a coma. Under the FRE, the statement is admissible at A's trial, no?

I think that C's statement would be admissible in this hypothetical, and that belief is partially confirmed by the opinion of the Supreme Court of Nevada in Maresca v. State, 748 P.2d 3 (Nev. 1987).

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There's Just One More Thing: Why Do Excited Utterances & Dying Declarations Have To Relate to Their Cause?

Federal Rule of Evidence 804(b)(2) 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.

Meanwhile, Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

I have always wondered about the same limitation that applies in each of these Rules. A statement qualifies as a dying declaration under Rule 804(b)(2) only if it was "made about [the] cause or circumstances" of what the speaker believes to be his impending death. And a statement only qualifies as an excited utterance under Rule 803(2) if it "relat[ed] to [the] startling event or condition. Why?

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Suicide Solution?: Supreme Court of West Virginia Finds Suicide by Witness for the Prosecution to be a Dying Declaration

Federal Rule of Evidence 804(b)(2) 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 student in my Evidence class and the esteemed Fred Moss both raised the same question with regard to this "dying declaration" hearsay exception today: Can it apply to a declarant who is not the homicide victim? Here is what Fred Moss wrote in a comment to yesterday's post:

We always believe, I think, that the declarant in the homicide case must be the victim of the homicide, that is, the person the defendant is accused of killing. But the rule refers to "the declarant," not "the victim," so they can be -- theoretically -- different people.

How about this hypo? A is on trial for the murder of B by shooting him. A shot several times in killing B. C -- the declarant -- was hit by one of the shots. As he lay on the street he tells the EMT, "I hear the wings of the Angel of Death hovering over me. Tell my wife I love her. And, by the way, I was shot by A as he was shooting at B." C either dies or cannot testify at A's trial because he's in a coma. Under the FRE, the statement is admissible at A's trial, no?

I think that this analysis is correct, which takes me to the strange case of State v. Satterfield, 457 S.E.2d 440 (W.Va. 1995).

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Die Another Day: Does the Dying Declarations Exception Apply in Attempted Murder Cases?

Federal Rule of Evidence 804(b)(2) 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.

When I teach Rule 804(b)(2), students often ask whether this "dying declaration" exception applies in attempted murder cases. I always answer that the answer is likely "no" because homicide means homicide: the killing of one human being by another human being. That said, I've never come across a case on the issue, and I'm not sure whether one exists. Why? Well, consider the complicated fact pattern that would have to exist for a prosecutor to try to admit a dying declaration in an attempted murder trial. First, the victim would have to have reason to think that he was about to die when he made the statement but then make a miraculous recovery. Second, for Rule 804(b)(2) to potentially apply, the victim would have to be unavailable to testify at the attempted murder trial, meaning that the victim would need to miraculously survive the defendant's act but then become unavailable through some independent cause. 

So, is there any reason beyond speculation to believe that Federal Rule of Evidence 804(b)(2) does not apply in attempted murder cases? Let's take a look at Pennsylvania Rule of Evidence 804(b)(2).

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My New Essay: Beware of the Diamond Dogs: Why a “Credentials Alone” Conception of Probable Cause Violates the Compulsory Process Clause

Florida v. Harris didn't turn out the way that I had hoped. As Lyle Denniston noted in his SCOTUSblog post, Opinion recap: trust the police dog, 

Expressing considerable confidence that trained drug-sniffing dogs are reliable, and showing specific respect for one Florida police dog — Aldo — the Supreme Court on Tuesday made it quite easy for police officers to search a car or truck for drugs once a canine snooper has “alerted” to a smell on the vehicle.   If the police offer evidence that a dog has been trained, or got a certificate from a training agency, that may well be enough to give police permission to turn an “alert” into a search of a vehicle, the Court said in a unanimous decision written by Justice Elena Kagan (Florida v. Harris, docket 11-817). 

The Court specifically rejected a very detailed checklist of proof of a dog’s reliability that the Florida Supreme Court had drawn up before a court could treat a dog’s signaling of the presence of a drug odor as the equivalent of “probable cause” to search.  In place of such a checklist, the Court set up a “reasonably prudent person” test — that is, a common-sense review of all of the facts about a dog’s alert, to see if such a prudent person would think that a search would turn up evidence of illegal drugs.  “A sniff is up to snuff when it meets that test,” Kagan cleverly summed up.

So, yes, the Supreme Court essentially did tell us to "trust the police dog." My response: Don't trust the diamond dogs. That's the argument of my essay, Beware of the Diamond Dogs: Why a 'Credentials Alone' Conception of Probable Cause Violates the Compulsory Process Clause, recently published by the Loyola University New Orleans Journal of Public Interest Law. You can now download the essay by clicking here.

-CM  

The Guardian: Supreme Court of Colorado Finds Guardian Ad Litem Holds Child's Privilege in Parental Rights Case

Like most states, Colorado has a psychotherapist-patient privilege. Colorado's privilege, contained in Colorado Revised Statute Section 13-90-107(g), provides that

A licensed psychologist, professional counselor, marriage and family therapist, social worker, or addiction counselor, a registered psychotherapist, or a certified addiction counselor shall not be examined without the consent of the licensee's, certificate holder's, or registrant's client as to any communication made by the client to the licensee, certificate holder, or registrant or the licensee's, certificate holder's, or registrant's advice given in the course of professional employment; nor shall any secretary, stenographer, or clerk employed by a licensed psychologist, professional counselor, marriage and family therapist, social worker, or addiction counselor, a registered psychotherapist, or a certified addiction counselor be examined without the consent of the employer of the secretary, stenographer, or clerk concerning any fact, the knowledge of which the employee has acquired in such capacity; nor shall any person who has participated in any psychotherapy, conducted under the supervision of a person authorized by law to conduct such therapy, including group therapy sessions, be examined concerning any knowledge gained during the course of such therapy without the consent of the person to whom the testimony sought relates.

Normally, the patient is the holder of the psychotherapist-patient privilege and can decide whether to waive the privilege. When, however, "the patient is a child who is too young or otherwise incompetent to hold the privilege, the child's parent typically assumes the role of privilege holder." In such cases, it is typically the child's parent or parents who have the authority to decide whether to waive the privilege. But what happens when there is an action to terminate the parental rights of the child's parent(s)? That was the question of first impression addressed by the Supreme Court of Colorado in its recent opinion in L.A.N. v. L.M.B., 292 P.3d 942 (Colo. 2013).

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Dying Declarations?: Should Courts Apply a Rule 403 Analysis to Questionable Hearsay Exceptions?

Similar to its federal counterpart, New Jersey Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a criminal proceeding, [for] a statement made by a victim unavailable as a witness because of death is admissible if it was made voluntarily and in good faith and while the declarant was conscious of declarant's impending death. 

And, similar to its federal counterpart, New Jersey Rule of Evidence 403 states that

Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

Many people criticize Rule 804(b)(2) because dying declarations are often made while the victim is in a hypoxic or anoxic state that can cause delirium, which would greatly undermine the reliability of the dying declarant's statement. The problem for defendants, however, is that Rule 804(b)(2) isn't going anywhere any time soon. So, what if a defendant claimed that a defendant that qualifies for admission under Rule 804(b)(2) should still be excluded under Rule 403? Let's take a look at the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Bacon-Vaughters, 2013 WL 656248 (N.J.Super.A.D. 2013).

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All Sense of Proportion: Can a Probable Cause Affidavit Qualify as a Present Sense Impression?

Similar to its federal counterpart, Indiana Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining a material event, condition or transaction, made while the declarant was perceiving the event, condition or transaction, or immediately thereafter.

And, similar to its federal counterpart, Indiana Rule of Evidence 803(8), provides an exception to the rule against hearsay (unless the sources of information or other circumstances indicate lack of trustworthiness)

[for] records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered by the government in criminal cases; and (d) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.

So, let's say that a police officer fills out a probable cause affidavit while waiting 20 minutes before administering a chemical breath test on a suspect. Would that affidavit be admissible under Rule 803(1) or inadmissible under Rule 803(8)? Let's take a look at the recent opinion of the Court of Appeals of Indiana in Jones v. State, 2013 WL 500799 (Ind.App. 2013).

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The Rule of Evidence That's Never Applied, Take 3: Former Jury Venireman as Witness?

As I noted last week, I have yet to find a single case in which a court has applied Federal Rule of Evidence 606(a), which provides that

A juror may not testify as a witness before the other jurors at the trial.If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

I did, however, post about two cases (here and here) in which courts applied the principles of Rule 606(a) to the proffered testimony of two former jurors. Now, courtesy of Ann Murphy, let's take a look at United States v. Kills Enemy, 3 F.3d 1201 (8th Cir. 1993), in which the prosecution called a former jury venireman at trial.

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No Exit: Florida Court Deems Evidence of Attempted Suicide Admissible to Prove Consciousness of Guilt

An individual is a suspect in a crime. That individual flees from the relevant jurisdiction and hides out in another jurisdiction before being apprehended and charged with the subject crime. At trial, the prosecution will be able to present evidence of the defendant's flight as circumstantial evidence of his consciousness of guilt.

An individual is a suspect in a crime. The individual tries to kill himself. At trial, will the prosecution be able to present evidence of the defendant's suicide attempt as circumstantial evidence of his consciousness of innocence? According to the recent opinion of the District Court of Appeal of Florida, Fourth District, in Sloan v. State, 2013 WL 85449 (Fla.App. 4 Dist. 2013), the answer is "yes."

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