EvidenceProf Blog

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

Sunday, April 3, 2011

Taking Root: Court Of Appeals Of New York Opinion Lends Credence To Ohio v. Roberts Revival

In the wake of the Supreme Court's opinion in Michigan v. Bryant, I argued that "the majority resurrected Ohio v. Roberts," which held that held that the admission of a hearsay statement against a criminal defendant violates the Confrontation Clause unless (1) the hearsay declarant is "unavailable," and (2) the statement has adequate indicia of reliability in that it (a) falls within a firmly rooted hearsay exception or (b) bears particularized guarantees of trustworthiness. The recent opinion of the Court of Appeals of New York in People v. Duhs, 2011 WL 1118627 (N.Y. 2011), corroborates this conclusion.

In Duhs, Michael Duhs,
who was babysitting his girlfriend's three-year-old son, allegedly placed the child's feet and lower legs into a tub filled with scalding hot water, resulting in second and third degree burns. When the child's mother returned home approximately five hours later, [Duhs] and the mother took the child to the hospital, where he was examined and treated by an emergency room pediatrician.
At trial, the court permitted the pediatrician to testify about a statement the child made outside the presence of his mother and [Duhs]. Specifically, when the pediatrician asked the child why he did not get out of the tub, he responded, "he wouldn't let me out." The pediatrician did not include this statement in the child's medical records, nor did the child testify at trial. [Duhs] was convicted of assault in the first degree and endangering the welfare of a child, and, on appeal, the Appellate Division affirmed

Duhs thereafter appealed to the Court of Appeals of New York, which had to determine whether the son's statement was testimonial (and thus violative of the Confrontation Clause) or nontestimonial (and  not violative of the Confrontation Clause). In reaching a conclusion, the court cited to the following language from Michigan v. Bryant:

When, as in Davis, the primary purpose of an interrogation is to respond to an "ongoing emergency," its purpose is not to create a record for trial and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause 

The court then concluded that

Applying the primary purpose test here, it is evident that the statement "he wouldn't let me out" was not of a testimonial character, since the primary purpose of the pediatrician's inquiry was to determine the mechanism of injury so she could render a diagnosis and administer medical treatment. Moreover, the Supreme Court has noted that "statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules" and not the Confrontation Clause (Giles v. California, 554 U.S. 353, 376 (2008); see Bryant, 562 U.S. at –––– n. 9).

Footnote 9 in Michigan v. Bryant is the footnote I cited in my post claiming that Bryant was reviving Ohio v. Roberts. In that footnote, the Court noted that

FN9. Many other exceptions to the hearsay rules similarly rest on the belief that certain statements are, by their nature, made for a purpose other than use in a prosecution and therefore should not be barred by hearsay prohibitions. See, e.g., Fed. Rule Evid. 801(d)(2)(E) (statement by a co-conspirator during and in furtherance of the conspiracy); 803(4) (Statements for Purposes of Medical Diagnosis or Treatment); 803(6) (Records of Regularly Conducted Activity); 803(8) (Public Records and Reports); 803(9) (Records of Vital Statistics); 803(11) (Records of Religious Organizations); 803(12) (Marriage, Baptismal, and Similar Certificates); 803(13) (Family Records); 804(b)(3) (Statement Against Interest)

In other words, according to the court, hearsay statements admitted under certain exceptions to the rule against hearsay are, by their nature, nontestimonial. Even though it is not an exact match, this is basically the Supreme Court, and now the Court of Appeals of New York, saying that certain hearsay exceptions are firmly rooted.



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