Hearsay Admissibility Conditions Blend Into Each Other

A hearsay statement regarding the infliction or threat of physical injury upon the declarant is admissible if it meets the conditions of Evidence Code section 1370, subdivision (a), which include that the statement was made “at or near the time” of the infliction or threat and that the statement was made under circumstances that would indicate its trustworthiness. In People v. Quitiquit, case no. D050385 (4th Dist. Sept. 12, 2007), the Court of Appeal says that a declarant’s statements that the defendant had caused her neck injury seven weeks earlier were not made “at or near” the time of infliction. Thus, the statements were improperly admitted, and Quitiquit’s conviction for voluntary manslaughter of the declarant is reversed.

The normal rules of statutory construction don’t seem to help much with the construction of “at or near.” Nonetheless, the court finds that “[t]he plain meaning of the phrase ‘at or near’ denotes a time close to the infliction of the injury – which in most circumstances will be within hours or days, rather than weeks or months.”

The court finds that the legislature intended the “at or near” requirement

to provide some assurance that the statements would relate to facts fresh in the declarant’s mind and reduce the risk that the statements resulted from the declarant’s prevarication or coaching by third parties.

I think this line of reasoning essentially makes the “at or near” requirement a subset of another requirement: that the statement be made under “circumstances that would indicate its trustworthiness.” The court finds that the declarant’s opportunity to reflect and deliberate, especially considering that she met with her children — at least one of whom was angry with the defendant — is evidence of both temporal distance and lack of trustworthiness. In other words, the “at or near” requirement implicates not just accuracy, but also honesty.

Justice Haller concurs in the reversal on alternate grounds but disagrees with the majority’s hearsay analysis. She relies on People v. Martinez (2000) 22 Cal. 4th 106, a case regarding the public records hearsay exception of Evidence Code section 1280, which likewise requires that the public records to have been made “at or near the time of the act, condition or event” recorded therein. The Martinez court held that “a computer generated printout of the defendant’s criminal history” could be admitted “for purposes of proving the criminal history,” despite that there may have been a 30-to 90-day delay in recording the relevant information.

Drawing from Martinez, Justice Haller contends that “at or near” cannot be measured only temporally, but rather must also be measured by practical considerations, such as the “nature of the information recorded” and the “immutable reliability of the sources from which the information was drawn.” Justice Haller would essentially impose only a “lapse of memory” test that would find a statement made “at or near” the time of the occurrence so long as there were indicia that the declarant is relating reliable information.

Does Justice Haller’s approach — using “at or near” to evaluate accuracy rather than truthfulness — come closer to the intent of the statute? Perhaps. Honesty is probably covered by the factors to be considered in determining trustworthiness, set forth in Evidence Code section 1370, subdivision (b):

[C]ircumstances relevant to the issue of trustworthiness include, but are not limited to, the following:(1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested.

(2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive.

(3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section.

Perhaps the way to evaluate this issue is first to consider whether the “at or near” factor suggests that the declarant could make an accurate statement and, if so, figure the “at or near” requirement into the calculus of whether the declarant honestly did so.

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