EvidenceProf Blog

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

Thursday, April 26, 2018

Supreme Court of Utah Finds Mother at Home w/Newborn on Oxygen & a Heart Monitor Wasn't "Unavailable" for Hearsay Purposes

Like its federal counterpart, Utah Rule of Evidence 804(b)(1) allows for the admission of "former testimony" by an unavailable declarant, including a declarant who "cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness."* Clearly a declarant is "unavailable" if she is deceased. Meanwhile, if a declarant has an illness, we have to compare the severity and duration of the illness with the likely duration of the trial (and the the possibility of a continuance). 

In Ellis, Christopher Ellis was charged with aggravated robbery and possession of a firearm by a restricted person. Brandy Thomas testified as a witness for the prosecution at Ellis's preliminary hearing. Thereafter,

Thomas was scheduled to testify on the first day of Ellis's trial, but she refused to attend because she needed to tend to her newborn. A week before trial she had given birth—several weeks prematurely—and her baby had come home from the hospital just three days before the trial began. The prosecutor explained to the district court that although both mother and baby were at home, “the baby is on oxygen, [and] has a heart monitor.” Thomas refused to leave her newborn to testify at the trial, and the prosecutor argued that the only way Thomas would testify was if he “haul[ed] her to court,” a position he “found to be untenable.”

The trial court deemed Thomas "unavailable" and thus allowed for the admission of her "former testimony."

After he was convicted, Ellis appealed, claiming that the trial court erred in deeming Thomas "unavailable." 

The illness at issue here was a further step removed. Brandy Thomas herself was not suffering from an illness; her unavailability was due to her need to care for her newborn baby. That alone does not necessarily foreclose the applicability of subsection (4). The rule's reference to a “then-existing infirmity, physical illness, or mental illness” conceivably could be understood to encompass the need to care for another's illness. But it certainly is not enough to just allege that a witness is unavailable due to her need to care for another. A further showing would be necessary. At a minimum, the proponent of the testimony would have to show that the witness's caretaker responsibility is critical and that that responsibility renders the witness unavailable for an extended period of time.

No such showing was made here. As the State notes, the baby's condition was apparent—the baby was born prematurely and was on oxygen and a heart monitor. That was enough to establish the existence of a severe health condition. But there was no inquiry into the likely duration of the condition, or into the possibility that someone could take Thomas's place in caring for the baby at some point during the reasonable time within which a trial could be held. And the failure of proof on those points is fatal.

The question thus becomes whether this ruling was as limited as the court claimed it to be. According to the court, this was simply a problem of proof, with the prosecution failing to provide a foundation for finding Thomas "unavailable." That said, the prosecutor said that Thomas's newborn was on oxygen and a heart monitor, that she was home with her newborn, and that she wouldn't leave her newborn unless the prosecutor hauled her into court. Wouldn't that have been enough to conclude that Thomas was critical to her newborn in a way that rendered her unavailable?


See Utah Rule of Evidence 804(a)(4)



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