Bigger & Better?: Supreme Court of North Dakota Opinion Deals With Both Personal/Family History Hearsay Exceptions

Similar to its federal counterpart, North Dakota Rule of Evidence 804(b)(4) provides an exception to the rule against hearsay for

(4) Statement of Personal or Family History. A statement about:

(A) the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or

(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely to be accurate.

Moreover, like its federal counterpart, North Dakota Rule of Evidence 803(19) provides an exeption to the rule against hearsay for

(19) Reputation Concerning Personal or Family History. 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.

As the language of these exceptions makes clear, they cover very similar territory. As the recent opinion of the Supreme Court of North Dakota in State v. Vandermeer, 2014 WL 929481 (N.D. 2014), mkaes clear, however, there is at least one key difference between the two.

In Vandermeer, Christopher Vandermeer was charged with gross sexual imposition with a person less than fifteen years old. The court's opinion doesn't indicate why the prosecution couldn't prove the victim's age through traditional methods; instead, all we know is that the victim testified that she was fourteen years old and gave her date of birth. In response, Vandermeer objected, but the court overruled this objection, prompting Vandermeer's appeal after he was convicted.

During that appeal, the State first claimed that the victim's testimony was admissible under North Dakota Rule of Evidence 804(b)(4). The court, however, quickly turned aside this argument, noting that Rule 804(b)(4) only applies if the declarant is "unavailable" under North Dakota Rule of Evidence 804(a). Because the victim was clearly "available," Rule 804(b)(4)  was clearly inapplicable.

The State next claimed that the victim's testimony was admissible under North Dakota Rule of Evidence 803(19). The court agreed with this exception because it applies regardless of whether the declarant is "available" or "unavailable" to testify at trial. As support, the court cited State v. Mitchell, 568 N.W.2d 493, 500 (Iowa 1997), which held that evidence to a witness's birth

is a fact of which he may be said to have knowledge based on family tradition. Such testimony has been regarded as original, direct, and primary evidence. It is admissible without regard to other or better evidence which has been introduced or which is available, and it is immaterial that the witness' parents are alive and available, or that they actually testify.

Rule 803(19) thus applies even in cases in which Rule 804(b)(4) doesn't apply. But is there a case in which Rule 804(b)(4) applies and yet Rule 803(19) doesn't apply?

-CM