Today we have a post based on a question from David, who asks:
I just watched Batman: Year One on Netflix, and there was an interesting issue presented that I thought I’d share. Toward the end of the movie, the corrupt Detective Flass is under indictment for involvement in a big drug scheme. Commissioner Gordon (through Batman’s intimidation) gets one of the crooks involved in the scheme, Jefferson Skeevers, to agree to testify against Flass.
Upon hearing this, Flass tells Gordon something along the lines of “he won’t testify if I have something to say about it…” The scene cuts to Skeevers unconscious in a hospital bed. Assuming Skeevers has confessed in a police statement out of court, wouldn’t this still be admissible against Flass under the forfeiture exception to hearsay as long as the prosecutor can show Flass had something to do with Skeevers hospitalization?
The Batman: Year One movie David mentions is a faithful adaptation of the classic Frank Miller graphic novel of the same name, several elements of which were integrated into the Christopher Nolan Batman films. The book or animated version are well worth checking out. We even gave away five copies of the book to celebrate our own year one.
Anyway, back to David’s question. Before we worry about whether any hearsay exceptions or exemptions apply we have to decide whether Skeevers’s statement would be hearsay in the first place. We don’t know what rules of evidence apply in a local criminal case in Gotham, but we’ll use the Federal Rules of Evidence, since many state rules are based on or are very similar to the FRE.
I. Is It Hearsay?
Under FRE 801, hearsay is an out of court statement (i.e. an oral, written, or nonverbal assertion) offered to prove the truth of the matter asserted in the statement. In this case, we’re supposing that Skeevers made an oral or written assertion that Flass was involved in the scheme, Skeevers did so out of court, and the prosecution would offer Skeevers’s statement in order to prove that Flass was, in fact, involved in the Scheme (i.e. as proof that what Skeevers said was actually true). It doesn’t matter whether the prosecution did this by offering a recording, a signed statement, or the testimony of a police officer who interviewed Skeevers. All of that would be hearsay.
You might think about the exemption for statements “made by the party’s coconspirator during and in furtherance of the conspiracy”, but although Skeevers and Flass may have been coconspirators at one time, these statements were not made during or in furtherance of the conspiracy. Indeed, they were probably made as part of some kind of plea bargain or immunity deal. Without any applicable exemptions, the statements are indeed hearsay, which is ordinarily inadmissible.
Normally this could be overcome by having Skeevers simply testify in person, which would give the jury a better opportunity to judge the truthfulness of his statements, and it would give the defense an opportunity to cross-examine him. But Skeevers is lying unconscious in the hospital, apparently because Flass or someone acting at his behest put him there. So now what?
Now we turn to the hearsay exceptions, of which there are several. Some of them apply whether the declarant is unavailable or not and some of them only apply if the declarant is unavailable. That said, it appears that only the latter will apply in this case.
II. FRE 803 and Recorded Recollections
You might think that if Skeevers had made a written statement for the police that his statement could be introduced as evidence under the recorded recollection exception of FRE 803(5). After all, FRE 803 states that “The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness” (emphasis added). And such a written statement would seem to fit the bill for 803(5):
A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.
Skeevers clearly once knew about Flass’s involvement but also clearly cannot now recall it well enough to testify fully and accurately: he is unconscious. The statement was made when the matter was fresh in his memory, before the incident that caused his injuries. And we’ll assume that it is an accurate statement.
But despite the phrase “regardless of whether the declarant is available as a witness“, the courts have been uniform in holding that 803(5) only applies when there is a witness available to testify that they can’t recall the matter reflected in the record. See, e.g., Steinberg v. Obstetrics-Gynecological & Infertility Group, P.C., 260 F.Supp.2d 492 (D.Conn. 2003) (the argument that 803(5) applies to an unavailable declarant “borders on frivolous”); Jacobson v. Deutsche Bank, A.G., 206 F.Supp.2d 590 (S.D.N.Y. 2002).
None of the other 803 exceptions are likely to apply in this case, so let’s move on to the heart of the matter: exceptions that apply only when the declarant is unavailable.
III. FRE 804 and the Unavailable Declarant
Declarants can be unavailable for a lot of reasons, one of which is when they “cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness”. FRE 804(a)(4). That definitely describes Skeevers.
Once a declarant is unavailable, there are some special exceptions that can apply to statement they made before they became unavailable. Two might apply in this case. David alluded to one of them (804(b)(6)) in the question:
The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: … A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.
If the prosecution can prove that Flass caused (and that includes indirectly causing via an agent or conspirator) Skeevers’s injuries, then it’s pretty much a slam dunk to introduce Skeevers’s statements against Flass. After all, we already have Flass indicating his intent: “he won’t testify if I have something to say about it…”
Another possibility is 804(b)(3), statements against interest:
A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it … had so great a tendency … to expose the declarant to civil or criminal liability
This exception might apply if Skeevers made the statement before he struck an immunity deal. If he spilled the beans about his role in a criminal conspiracy in which Flass also played a part, confessing to multiple crimes in the process, then that would definitely be a statement against interest. But if he signed an immunity deal first and then talked, then his statements wouldn’t actually be exposing him to criminal liability and so the exception wouldn’t apply. If this did apply, however, it could be a useful backup in case the prosecution couldn’t prove Flass’s involvement in Skeevers’s unavailability.
Apart from the issue of proof, this is a classic example of 804(b)(6), which is a rule that meshes very well with most people’s intuition about fairness—and gives criminals a disincentive to intimidate or kill witnesses.