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.

In Jessop,

Raymond Merrill Jessop and nine other members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), living at the YFZ (Yearning for Zion) Ranch in Schleicher County, Texas, were indicted for sexual assault of a child....Subsequently, a jury convicted appellant and assessed his punishment at confinement for eight years in the Institutional Division of the Texas Department. 

During Jessop's trial,

the jury received evidence that both [Raymond] and J. Jessop moved to the YFZ Ranch in Schleicher County, Texas, in December 2003. The evidence showed that appellant was sealed to J. Jessop in a celestial or spiritual marriage for "time and eternity" in August 2004 in a ceremony that was performed on the YFZ Ranch when she was 15 years old. Evidence further showed that after the marriage ceremony, [Raymond] and J. Jessop lived together in the same household, purportedly as husband and wife, including engaging in a sexually intimate relationship. Finally, the evidence showed that one year after being sealed in a spiritual marriage with appellant, J. Jessop gave birth to a daughter when she was 16 years old. Additional evidence documented the birth of a baby girl in August 2005 to "Raymond and [J.] Jessop." DNA testing also established that [Raymond] was the biological father of her child.

After he was convicted, Jessop appealed, claiming that the documents proving the celestial or spiritual marriage were inadmissible hearsay. The State countered that the documents were admissible under Texas Rule of Evidence 803(11). Jessup responded that

the exception for records of a religious organization was not meant to include "the writings of an evangelist" but rather "the words of ordinary men and women in the formation of records of the most important of their own personal affairs." He assert[ed] that this exception—based on "the assumption that the records are credible due to the serious nature of religion itself"—should not apply to the FLDS church records. This argument appears to be based on the fact that the church's leader, the "prophet," is "himself a defendant who believes himself to be hearing the voice of God."

The court sided with the State, concluding that

Rule 803(11) does not depend on the personal views or religious beliefs of those making the records. Nor does Rule 803(11) depend on the popularity or acceptance of the religious organization in question or the character of the organization's leader. Hearsay evidence need only be consistent with the provisions of the exception to be admissible. Here, the documents about which appellant complains were various documents relating to marriages, births, family relationships, personal history, and family history of FLDS members. Further, the evidence at trial demonstrated that these documents were regularly maintained by the FLDS as part of the religious organization of the church.

-CM