“It is the customary fate of new truths to begin as heresies …”
Thomas Huxley, The Coming of Age of The Origin of Species (1880)
A sextet of rulings of the Minnesota Court of Appeals this spring addressed hearsay issues in criminal cases. Two concurrent cases upheld convictions stemming from hearsay testimony, reflecting that the idea of preclusion of hearsay is often more heresy than reality. Both cases involved serious felony prosecutions in which key testimony was given by the victim whose memory was fuzzy at trial, prompting the use of their prior statements. The respective trial courts allowed the out-of-court statements to be admitted and the appellate court affirmed.
The four other cases reached similar outcomes, upholding the hearsay testimony and the respective convictions derived from them.
A recorded interview of a young girl disclosing various occasions of sexual abuse by the live-in boyfriend of the minor’s step grandmother was properly admitted in a case that resulted in conviction on four counts of criminal sexual conduct in State v. Mahlberg, 2016 Minn. App. LEXIS 298 (Minn. App. March 28, 2016)(unpublished). The abuse occurred when the girl was 4 to 7 years old. The incidents were reported to a school counselor, who interviewed her about multiple sexually abusive encounters. She was unable to recall many of the details under disclosure at trial, which prompted the state to introduce the recording of her interview, which the St. Louis County District Court allowed. The Court of Appeals affirmed. The challenge to the admissibility of the recording was grounded on the claimed lack of “trustworthiness” of the recording. The contention, however, failed under the residual exception, which allows the admission of statements that do not fall under any of the general hearsay exceptions if they have the equivalent circumstantial guarantees of trustworthiness, concern a material fact, are more prohibitive than any other evidence that is obtainable by reasonable methods and admissibility would serve the interest of justice. These criteria were satisfied, including the “trustworthiness” of the recording.
The interview occurred because the minor self-reported that she had been subject to a “bad touch.” The interviewer, who had forensic experience, described the protocols she employed to ensure trustworthiness of the interview, her “minimal knowledge” of the allegations, and her impressions that the statements made to her were spontaneous. The interview avoided leading questions, and was characterized by a consistent demeanor of the minor, who had no motive to fabricate.
The girl generally liked being at the home where the abuse occurred, which negated any possible motive to fabricate the statements, thus contributing to their reliability.
The statements also were consistent, even though the minor had difficulty recalling the specifics of the incidents when she was testifying on the witness stand. Her demeanor also was consistent, appearing “open, engaged, calm and candid,” which supported the trial court’s determination that the statements were reliable.
Another case also turned on trustworthy testimony offered in extra-judicial hearsay statements used for a conviction of aggravated robbery kidnapping in State v. Watkins, Minn. App. LEXIS 299 (Minn. App. March 28, 2016)(unpublished). The Hennepin County District Court allowed the admissibility of a statement given by a victim of a robbery and kidnapping to the police shortly after the incident when he was unable to remember at trial most of what had occurred. The prosecution sought and the judge permitted the introduction of the statement the victim had given to the police right after the event. The appellate court upheld the admissibility of the hearsay, based upon the court’s determination that the totality of the circumstances gave the statement circumstantial guarantees of trustworthiness. The factors examined four considerations: whether there was a “confrontation problem,” whether the declarant admitted making the prior statement, whether the statement was against the declarant’s penal interest and whether the statement was consistent with all of the other evidence presented by the prosecution. In this case the declarant admitted to making the statement and it was voluntarily made and recounted specific details based upon firsthand knowledge and corroborated by other evidence. Although the officer who took the statement and read it into the record had to refer to his reports multiple times while on the witness stand, his credibility was not diminished. The focus of the admissibility of hearsay statement of this type is the statement, not the testifying witness who heard the statement.
Other challenges made on appeal also were rejected, including a claim that the defendant was denied his right confrontation under the Sixth Amendment because he was not allowed to impeach the hearsay witness with seven of his prior felony convictions. Although the witnesses’ felony record was “sanitized,” the record was replete with other, more relevant evidence that was used to impeach the witness, including that he was on parole at the time of the incident, that he had sold drugs in the past, and was a drug dealer.
Finally, a claim of failure of the prosecution to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963) also was rejected. The notification given by the state that it intended to use the hearsay statement, which occurred in the middle of trial, after the declarant witness’ memory turned foggy, did not constitute a Brady violation because the state was unaware of the memory loss until trial.
The four other cases exemplified a pair of other hearsay exceptions.
A statement made by a victim of domestic assault to police officers at the scene of the incident was allowed in State v. Brewer, 2016 Minn. App. LEXIS 330 (Minn. App. April 11, 2016)(unpublished). The statement was properly admitted by the Ramsey County District Court because it fell within the well-recognized “excited utterance” exception, which allows out-of-court statements when the victim is under the stress of the assault at the time of the statement.
A police officer’s testimony that the victim said the defendant assaulted her and should get jail was permissible even though the victim did not testify at trial, because she ceased cooperating with the police. There also was sufficient corroborating testimony to render admissibility of the testimony harmless even if it was improperly admitted.
The same principle was invoked in upholding a drive-by shooting conviction by a Dakota County District Court in State v. Vasquez, 2016 Minn. App. LEXIS 531 (Minn. App. May 31, 2016)(unpublished). Statements made at the scene by a detective, along with other identifying statements made about the incident, were admissible. They included statements made by the witness to a friend after he was shot and to a detective while being transported in an ambulance from the scene. All of them fell within the excited utterance exception.
The executed utterance exception also was invoked in affirmance of a second degree murder conviction inState v. Ward, 2016 Minn. App. LEXIS 614 (Minn. App. June 20, 2016)(unpublished). Following a conviction in Ramsey County District Court for shooting and killing a man over a disputed debt, the perpetrator raised a hearsay appeal based on the decedent’s statement that the assailant had threatened to shoot him after a heated telephone discussion a few days before the murder. The statement was deemed admissible because it was made under the “aura of excitement” following the telephone call, which satisfied the utterance exception.
The appellate court also allowed the use of out-of-court statements identifying organizers of a prostitution ring in State v. Edwards, 2016 Minn. App. LEXIS 499 (Minn. App. May 23, 2016)(unpublished). Affirming a Ramsey County District Court conviction of first-degree sex trafficking, the court ruled that statements made by a victim to a nurse were admissible because they were obtained for purposes of medical treatment. The declarant’s identification of those who ran the scheme fell within the hearsay exception for statements “reasonably pertinent” to the diagnosis and treatment of the victim.
The Eighth Circuit Court of Appeals weighed-in early this summer with its own affirmance of a conviction for bank robbery based upon hearsay testimony in U.S. v. Lomas, 2016 Minn. App. LEXIS 11691 (Minn. App. June 27, 2016)(unpublished). Out-of-court hearsay statements made by one of the defendant’s cohorts to a police officer implicating the defendant in the crime were properly admitted because the defense opened the door on cross-examination by asking the detective about the interview, and the hearsay on re-direct was admissible to clarify or rebut the issues addressed initially on cross. Other testimony about statements made by someone who was overheard during a planning discussion also was admissible because it was not hearsay to the extent that the statements were from the defendant and, thus, constituted admissions made by a party.
These criminal cases show that, while often disfavored in judicial proceedings, hearsay is not quite the heresy it is sometimes thought to be, especially when the out-of-court evidence is regarded as sufficiently trustworthy for presentation to a jury.
Some common hearsay exceptions
- Excited utterance;
- Existing mental, emotional or physical condition;
- Statements made for purposes of medical diagnosis or treatment;
- Past recorded recollections; and
- Public records and reports.
Originally published by Minnesota Lawyer.