EvidenceProf Blog

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

Monday, August 11, 2014

Now Available?: Court of Appeals of Minnesota Finds Defendant Failed to Prove Witness's Unavailability

Similar to its federal counterpartMinnesota Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

And, similar to its federal counterpartMinnesota Rule of Evidence 804(b)(3) only applies if the declarant is "unavailable." One way a party can prove unavailability is by showing that

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance...by process or other reasonable means.

In State v. Carlson, 2014 WL 3892071 (Minn.App. 2014), the Court of Appeals of Minnesota found that the defendant did not use process or other reasonable means to procure a declarant's attendance. Was this the correct ruling?

In Carlson, Donald Carlson was charged with fifth-degree controlled-substance sale after a search of a property owned by Carlson uncovered marijuana and paraphernalia associated with growing marijuana.

In March, less than three weeks before the scheduled commencement of trial, Carlson produced a copy of a lease for the property that he allegedly entered into with a tenant, K.J., and an undated transcript, purportedly of a secretly recorded conversation between K.J. and Carlson, in which K.J. confessed to growing marijuana on the property. Carlson argued that, although hearsay, the transcript was admissible as K.J.'s statement under Minn. R. Evid. 804(b)(3). Upon the state's request, the district court continued the trial to May 13 so that the state could investigate the authenticity of K.J.'s purported lease and hearsay statement. Carlson was not in custody pending trial.

At a pretrial hearing on May 6, Carlson informed the district court that, although a private investigator attempted to serve K.J. with a subpoena and Carlson tried to arrange a meeting with K.J., Carlson was unsuccessful in his attempts to serve K.J. with a subpoena for trial. The state maintained that K.J. did not exist and that Carlson had fabricated the purported lease and transcript of the secretly recorded conversation with K.J. The district court denied Carlson's motion to admit K.J.'s hearsay statement, reasoning that Carlson failed to make reasonable efforts to procure K.J.'s testimony or attendance.

After he was convicted, Carlson appealed, claiming, inter alia, that the trial court erred in deeming the transcript inadmissible under Minnesota Rule of Evidence 804(b)(3). Specifically,

Carlson argue[d] that his efforts to procure K.J.'s testimony or attendance were reasonable, arguing that, about two weeks before the May 6, 2013 hearing, Carlson arranged a meeting with K.J. that K.J. did not attend; K.J. was, as of May 6, living in Mount Prospect, Illinois; and Carlson continued, through undisclosed means, "to try to get [K.J.] to cooperate."

In response, the Court of Appeals rejected this argument, concluding:

He offered no evidence to support those assertions. On appeal, he identifies no legal authority to support his argument that his efforts were reasonable.

So, was this the correct ruling? I wish that the court's opinion were a bit more detailed. Was the problem for the court simply that Carlson offered no evidence of his attempts to procure K.J.'s attendance? If that's the case, I can certainly understand the court's reasoning. But what about the reference to lack of legal authority? Was the problem for the court that trying to serve a subpoena and trying to arrange a meeting were legally insufficient attempts? If so, I think I might disagree with the court's ruling, but it is difficult to tell from the opinion exactly what the court decided.



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