Sine Qua Nah: Court Of Appeals Of Minnesota Opinion Fleshes Out Specifics Of Rule 807

Like its federal counterpart, Minnesota Rule of Evidence 807 provides in relevant part that

A statement not specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

In its 1985 opinion in State v. Ortlepp, 2009 WL 2015404 (Minn. 1985), the Supreme Court admitted a non-judicial prior consistent statement as substantive evidence based upon four factors:

(1) the witness was available for cross-examination regarding the statement, thereby assuaging any confrontation problems; (2) there was proof that the prior statement was made; (3) the statement was against the declarant's penal interest, a fact that increases its reliability; and (4) the statement was consistent with all the other evidence introduced.

Since, Ortlapp, Minnesota courts have referred to these as the Ortlepp factors, but are they the sine qua non of such a statement being admissible under Rule 807, or are there other factors that can lead to its admission?

In Coleman, 

Officer Brent Petersen was dispatched to C.A.'s residence. Upon his arrival, Officer Petersen noted that C.A. seemed frightened and upset and looked as if she had been crying. In a recorded statement, C.A. told Officer Petersen that she had been outside walking her dog when she was confronted by appellant Christopher Coleman, a friend of hers with whom she had a brief sexual relationship. According to C.A., appellant was upset because he thought C.A. may have given him a sexually transmitted disease (STD). C.A. claimed that she told him to leave, but appellant responded by pushing her to the ground, and choking her. C.A. claimed that appellant told her that he had an appointment the next day and that if he found out that he had a STD, he was going to shoot and kill her.    

Coleman was thereafter charged with terroristic threats and two counts of domestic assault. At trial, C.A. testified that Coleman and she had been friends and that the two had a brief sexual relationship. When questioned about the assault, however, C.A. stated that she did not remember the details of the assault because it occurred two years ago. Although C.A. agreed that she was assaulted, she testified that she did not remember being choked, having neck pain, or seeing Coleman on that date. A break was subsequently taken to allow C.A. to review her prior statement to Officer Petersen. After reviewing the statement, C.A. testified that she still could not remember the details of the assault, but that she believed she told Officer Petersen the truth. C.A.'s recorded statement was later played for the jury.

C.A. was also questioned regarding an application that she filled out for a harassment restraining order against Coleman. C.A. claimed that she could not remember when she filled out the application, but conceded that she must have filled it out shortly after the assault. The affidavit and petition for harassment restraining order were subsequently admitted into evidence. In the affidavit, C.A. claimed that Coleman assaulted her and threatened to kill her.

After Coleman was convicted, he appealed, claiming, inter alia, that the trial court erred by allowing the prosecution to introduce C.A.'s recorded statement as substantive evidence. And the Court of Appeals of Minnesota agreed with him that the recorded statement could only be admitted as impeachment evidence, and not as substantive evidence, under Minnesota Rule of Evidence 613. 

Coleman also argued that the statement was not admissible under Minnesota Rule of Evidence 807 because it did not satisfy all of the Ortlepp factors in that 

the statement (1) was not a sworn statement; (2) was not a statement against her interest; and (3) was of questionable reliability in light of her sworn testimony that she could no longer accuse appellant of being her assailant due to a failing memory.

On this point, the court disagreed, noting that the Ortlepp factors "provide guidance," but "are not an exclusive list of the indicia of reliability. Instead, the court found that C.A.'s recorded statement was sufficiently trustworthy, and thus admissible, because

(1) C.A. admitted making the statement, testified that she believed she was telling the truth when she made the statement, and was available for cross-examination; (2) there was no dispute that she made the statement; (3) the statement was very detailed and made shortly after the assault; (4) C.A. had no apparent motive to lie to Officer Petersen: (5) the statement was consistent with [another witness'] testimony...; (6) C.A.'s statement about being choked was corroborated by the pictures taken by Officer Petersen, which show red marks on C.A.'s neck; and (7) the statement was consistent with the sworn affidavit in support of her application for a harassment restraining order against appellant that C.A. submitted a few days after the assault.

-CM