Evidentially Speaking 2008 Hearsay review

While certainly not a blockbuster year for hearsay decisions, there were several noteworthy cases decided in this always interesting area of our evolving evidence law.

Readers of this column know that I have long railed (that’s not a word that really goes with my judicial demeanor, but bear with me) against the blind use of the “business record” exception in all cases but especially civil and matrimonial matters tried here in Supreme Court. Last year we discussed the hearsay contained within expert reports that is all too often admitted without redaction of objectionable material. (See People v. Goldstein, 6 N.Y.3d 119). Along these lines I point out to you a terrific September, 2008 decision out of Bronx Supreme Court by Justice Dineen Riviezzo, In the Matter of the State of New York v. J.A., 21 Misc. 3d 806(Sup Ct, Bronx County, Riviezzo, J.), that addressed the admissibility of certain hearsay documents offered in a Mental Hygiene Law Art. 10 proceeding. Specifically the issue presented was to what extent a testifying psychiatrist may rely on pre-sentence reports and Department of Parole records from 1961 in compiling a history of sex offenses committed by the respondent which were contained in the doctor/witness’ report and relied on by him as a basis for his in-court opinion that the defendant suffered a “mental abnormality” and was a pedophile. The witness testified that the pedophile finding was based solely upon his review of these almost 50 year old documents. The convictions that were relied upon – impairing the morals of a minor – were not by their nature sex offenses. The witness admitted that he could not determine any specific sexual activity from the conviction alone. There was no complaint, indictment, plea minutes, nor any other documentary proof to substantiate the People’s claim.

The statue (MHL 10.08(g) allows the examining psychiatrist’s report to be admitted at a probable cause hearing or proceedings relating to the imposition of strict and intensive supervision, neither of which was the subject of this proceeding. In her decision, J. Riviezzo reviews several possible theories of admissibility and, in my view, correctly rejects them all and rules that the State cannot sustain their burden of proof on the pedophile status without non-hearsay proof.

The Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 case made news again as J. Scalia continues to revisit his Confrontation Clause gold mine – this time in a review of a case involving the California “forfeiture by wrongdoing” statute decided June 25, 2008. (Giles v. California, 128 S.Ct. 2678) In this case, the defendant Dwayne Giles shot his former girlfriend, Brena Avie, outside his grandmother’s house. From inside, Giles’ niece heard, but did not see, what happened. The niece testified that she heard the two talking, heard Avie yell “Granny” several times and then heard a series of gunshots. Avie was unarmed and was shot six times. Giles fled the scene and was arrested two weeks later. At trial, he claimed self de­fense, stating that Avie was jealous and had a proclivity for violence.

At trial the prosecutors introduced statements made to a police officer who had responded to a domestic violence report several weeks before the murder. The statements described the defendant’s accusing Avie of having an affair with another and physical contact with her which ended with him threatening to kill her with a knife. Over objection, the court allowed the statements, under a California statute that allows hearsay describing the infliction or threat of physical injury on a declarant when the declarant is unavailable to testify at trial, and the prior statements are deemed trustworthy. See California Evidence Code Ann. Sec. 1370 (See West Supp. 2008). Scalia’s analysis centered on whether or not the common law forfeiture by wrongdoing exception under California law is a “founding era exception to the confrontation right.” In reviewing the treatises and common law case law that developed the rule, Scalia found that the application of the rule was “purpose driven,” that is that the un-confronted testimony was only admitted when it was shown that the evidence suggested that the defendant caused a person to be absent from testifying, not that their non-appearance was the result of the homicide. Likewise, the Court’s 1997 affirmance of the Federal Rule of Evidence entitled “Forfeiture by wrongdoing” held that the rule applied only when the defendant “engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” citing FRE 804(b)(6). Of course an interesting sidebar to this decision will be what, if any, effect it has on New York’s own process of holding a Sirois hearing where the prosecution may demonstrate that the defendant, by violence, threats or chicanery, caused a witness’s unavailability. If they meet their burden, the People may offer into evidence the intimidated witnesses’ out-of-court statements without violating the defendant’s right to confrontation. (See People v. Geraci, 85 N.Y.2d 359).

Finally, an interesting case comes out of the Second Department in the decision of People v. Kass, 2008 NY Slip Op 09817, 2008 WL 5172590. (2nd Dept. 12/9/68). decided December 9, 2008. The facts in the case are as follows: While the defendant Jed Kass was incarcerated awaiting trial on an embezzlement charge, the DA alleged that Kass asked another inmate to introduce him to someone who would be willing to kill two witnesses whom Kass was expecting would testify against him. The fellow inmate was a registered jailhouse informant who was working with the police on a different case where he was also looking for a hit man. The police then began their investigation which used two undercover police officers to pose as the hit men for hire.

The defense at the trial asserted that it was the informant, not the defendant, who actually insisted that Kass speak with these hit men and that Kass had done so only because he was afraid of the informant. The defense got a significant assist from three Correction Officers who testified that Kass had, in fact, requested a transfer away from the informant in order to get away from him. Kass had also told the officers that the informant was pressuring him to “say something he didn’t want to say” and that he did not want to hire any hit men. As may be expected, the police investigation involved meetings with and phone calls made to Kass and the undercover officers, which were recorded. (There are transcripts included in the decision which essentially have the two undercover officers doing 98% of the talking and planning and the defendant says “OK” in response.)

The informant was not present at trial. The People then had the undercover testify, over objection, as to the substance of his first conversation with the informant. The undercover officer testified as follows: “he said he had a conversation with another individual, later known as Jed Kass, who stated to him that if he knew anybody that would be able to kill-eliminate two people.” The DA offered the testimony as proof of the detective’s state of mind and the trial court accepted the testimony.

In reversing, the Appellate Division held that the court had the discretion to allow the testimony not for its truth but rather “to provide background information as to how and why the police pursued the investigation and made contact with the defendant.” (citing People v. Tosca, 98 N.Y.2d 660). However, the court went on to state, “but because this was the only evidence in the entire case that had the defendant expressing a desire to hire people to kill the witnesses, there was a real danger that, without proper guidance, the jury would take the testimony as proof that the defendant actually had made the statement, thereby establishing the decisive element of his intent.” The trial court made no such instruction the appeals court found that this was serious and prejudicial error.

There are two issues presented under these facts and chronology and I would like to address them both here. The first regards the trial court’s application of the state of mind exception to the hearsay rule, and the second is the ruling of the Appellate Division. I submit that the trial court focused and allowed the jury to accept the hearsay to establish the testifying witness’s state of mind – in this instance it was the state of mind of the undercover investigator. The problem with that reasoning is that the officer’s state of mind is not the issue in the case – it is the defendant’s desire to hire a hit man that is probative. The witness’s state of mind, if relevant, can be testified to directly by him. We do not need hearsay for that purpose. Evidence of the defendant’s state of mind could perhaps have been established by allowing the informant’s conversation with the defendant if the informant were available. He was not. I submit that the trial courts must be very careful in accepting this exception to the hearsay rules, otherwise the potential prejudice is significant and may very well be fatal to the verdict.

I have always considered the leading case on this issue the case of Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892), where the U.S. Supreme Court wrote:

A man’s state of mind or feeling can only be manifested to others by countenance, attitude, or gesture, or by sounds or words, spoken or written. The nature of the fact to be proved is the same, and evidence of its proper tokens is equally competent to prove it, whether ex­pressed by aspect or conduct, by voice or pen. When the intention to be proved is important only as qualifying an act, its connection with that act must be shown, in order to warrant the admission of declarations of the intention. But whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party. The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he ex­pressed that intention at that time is as direct evidence of the fact as his own testimony that he then had that intention would be. After his death these can hardly be any other way of proving it, and while he is still alive his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander’s recollection of what he then said, and is less trustworthy than letters written by him at the very time and under circumstances precluding a suspicion of misrepresentation.
In Kass, the undercover police officer is present and can testify as to what he did and why he did it. Based upon these facts, “the particular intention” of the detective is not what the People’s case is about and there is no need, as the Appellate Division correctly held, to apply the exception because the witnesses’ state of mind in his meeting with the informant is not a material fact that needed to be proved here. It was clear and obvious by the other evidence. The trial judge had other options available to it. For example, the DA could have been directed to question the undercover as follows:

Q: Now sir did there come time you were assigned to an investigation at Rikers Island? A: Yes
Q: What was your assignment? A: I was assigned to investigate the possible hiring of hit men to kill two potential witnesses by Jed Kass.
Q: What, if anything, did you do toward that end? A: I contacted the defendant and proceeded to set up a meeting with him….
Q: As I result of that meeting, what if anything did you do?

By the way, back in the day this was exactly the way we were trained in the District Attorney’s Office to explain to the jury how a police officer who received a radio communication and then arrived at the crime scene. The radio communication is hearsay, his response to it is not. Remember that in Hillmon, a decedent’s letters indicating his intent to travel to Wichita, Kansas were admitted as evidence of that intent when his body was found in a campsite nearby. That is, they indicated his state of mind at the time he left his home never to return. Other classic applications are a dead person’s comments to a friend, “if anything ever happens to me, look for Artie. He hates me and has told me that he is going to make me pay.” These statements prove the fact that the dead victim was in fear of the defendant, certainly a material fact at the decedent’s murder trial.

As to the Appellate Division ruling, I also happen to disagree with their stating that while the testimony should not have been admitted for its truth, it could have been submitted with an instruction that it is being admitted solely for the purpose of explaining what the undercover did. In view of the fact that this statement was the only evidence wherein the defendant directly stated that he wanted the witnesses killed, I believe that even with such an instruction, the prejudice from the testimony really prevents the defendant from having a fair trial.
In closing, I would like to point out that the Hillmon court fashioned a four prong test for admitting state of mind evidence. They are as follows:

1. The declarant is unavailable;
2. The statement being offered clearly contemplates some future action by the declarant;
3. The events must have occurred in the recent past and the declarant was a party to them;
4. There is some independent evidence of reliability.
See you next time.

Justice Arthur M. Diamond sits on the NYS Supreme Courts.