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.

In Velentzas,

On October 26, 1988, Sorecho Nalo died as a result of gun shot wounds he sustained inside Olympic Travel, Inc. ("Olympic"), a travel agency in Astoria, Queens. Olympic is owned in part by the defendant, Spyredon Velentzas.  

Within minutes of receiving a radio transmission that Nalo was shot, Police Officer Noto and his partners arrived on the scene and found Nalo lying on the floor. When they asked Nalo what happened, he replied, in substance, that he had been shot four times, that he needed an ambulance, and that he did not know who shot him.  

Noto obtained a description of the shooter from an eyewitness and repeated this description to his partner, who called it in over the radio. Then Noto again asked Nalo what happened, to which Nalo replied, in substance, that he had been on the phone with Spiros Velentzas, the owner of Olmypic, whom Nalo was to meet at Olmypic, at Velentzas' request, at 6:00 P.M. that evening. Nalo then added, in substance, "Spiros had this done to me." Nalo also informed the officers that the shooter left in a dark two-door sedan with tinted windows. From this point until the ambulance arrived, Nalo repeatedly stated that he was dying.  

Several minutes after Nalo's statements to Noto, a second police officer spoke to Nalo. First, the officer asked Nalo if he knew who he was, and Nalo answered in the affirmative. Then the officer asked Nalo who shot him, and Nalo answered "Spiros Velentzas."

At trial, the prosecution admitted Nalo's statements implicating Velentzas in his shooting as dying declarations, and Velentzas later claimed that they were improperly admitted on appeal. In addressing this issue, the Eastern District of New York noted that Federal Rule of Evidence 602

provides, in pertinent part, that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Personal knowledge may appear from the statement or be inferable from circumstances. Because a witness' testimony as to a hearsay statement is merely a substitute for what the declarant would have testified to, the requirement of personal knowledge applies likewise to hearsay testimony. See id. (Rule 803 does not "dispense[ ] with the requirement of firsthand knowledge."); see also Notes of the Advisory Committee on Rule 804 (incorporating Rule 803's firsthand knowledge requirement by reference). This requirement is logical: a witness should not be able to testify to hearsay to which the declarant himself would not be able to testify if he were available. Thus, personal knowledge, or an inference thereof, is a prerequisite to the admissibility of both dying declarations and excited utterances, and the Court must resolve this issue prior to reaching the question of whether Nalo's statements fall under either or both of these exceptions.

Ultimately, the court concluded that this personal knowledge requirement was satisfied because, inter alia,

Nalo must have recognized that it was something other than coincidental that he was shot at the exact location and time which Velentzas had designated for their meeting, while his attention was presumably focused on the telephone call in which he was engaged rather than on the assailants who were about to end his life.

-CM