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.

Specifically, the court in Lopez

consider[ed] reputation among the petitioner's family and in the community that he or she was born in the United States. United States v. Jean–Baptiste, 166 F.3d 102, 110 (2d Cir.1999) ("[T]here is a special need for this type of evidence," because, as here, "[o]ther evidence of family matters is frequently unavailable, and it is likely that these matters have been sufficiently inquired about and discussed with persons who have personal knowledge so that a trustworthy consensus has been reached."). Statements of family members about matters of family history are "generally presumed to be truthful." U.S. v. Palomares–Munoz, No. 00–50216, 2001 WL 219951, at * *1 (9th Cir.2001), citing FED.R.EVID. 803(19) ("a reputation among a person's family...or among a person's associates in the community...concerning the person's birth..." is not hearsay).

Moreover, the court noted that

At trial the evidence was uniform that Lopez's parents, his siblings, his godmother, and the family's friends consistently told Lopez and acknowledged among themselves he was born in the United States. Each witness who so testified was credible on this point and each identified the source of their information—either personal knowledge or long familiarity with the family—about Lopez's place of birth. There was no evidence at trial that Lopez had been told by anyone he was born in Mexico and no evidence to reasonably suggest that any of the witnesses were untruthful on this point. The court rejects the Department's contention that it should find the testimony of Lopez's family members not credible because they are "interested witnesses" and "potentially biased." Nothing in the witnesses' demeanor or testimony reasonably suggested that any of them were being untruthful in their testimony. The single fact of a familial relationship cannot by itself be enough to undermine the credibility of these witnesses' testimony, as that would effectively nullify Federal Rule of Evidence 803(19), which recognizes as admissible evidence to establish a person's place of birth the testimony of the person's family. Thus, Lopez's testimony that his parents, relatives, and family friends have always told him that he was born in the United States, as well as the corroborating testimony of his siblings and friends, further supports his and his parents' statements that he was born in the United States, and is credible and probative on this point.

-CM