Back to the Future: Court of Appeals of Texas Finds State of Mind Exception Inapplicable in Duress Case, by Editor Colin Miller, Evidence ProfBlogger, EvidenceProf Blog
A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
As I always tell my students, Rule 803(3) covers statements concerning present feelings of future intentions but not past events. So where did that leave the defendant in Cogdill v. State, 2014 WL 4627579 (Tex.App.-San Antonio 2014)?
In Cogdill, Nico Allen–Antoni Cogdill was charged with capital murder. At trial, Cogdill raised a duress defense, claiming that he and Isaac Milne killed the victim because Jeremy “Bounce” Bukowski threatened them with a shotgun. To prove this claim, Cogdill sought to have Bukowski’s cellmate testify that:
Mr. Bukowski told me that the night that—that all three of them, they went out to the—to the guy’s house. He said that—that at first he had told Mr. Cogdill and Mr. Isaac Milne that it was just to go out there to rob the guy of some laptops, some computer software, and some musical instruments and stuff. He said whenever they got there he said—he said the guy that they went to rob used to be an old roommate of his and said that he told them that the guy was a convicted pedophilier (sic), and whenever they got out there he pulled a shotgun from his trunk, he held it on Mr. Cogdill and Mr. Milne and forced them to proceed with the—with the murder.
Cogdill claimed that this statement was admissible under Rule 803(3), but the trial court disagreed. On appeal, Cogdill repeated his argument, but the Court of Appeals rejected his claim, concluding:
First, we disagree with Cogdill’s interpretation of Bukowski’s statement. The statements allegedly made by Bukowski are merely a rendition of the events that took place on the night of the murder, i.e., out-of-court statements of events that occurred, and as such are hearsay and not admissible under Rule 803(3). . . . Second, numerous courts have held that for the exception set forth in Rule 803(3) to apply, the statement must relate to future, not past, conduct.
I agree with the court’s conclusion but wonder whether Cogdill also raised Texas Rule of Evidence 803(24), which provides an exception to the rule against hearsay for :
A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
The opinion doesn’t reference this Rule, but threatening someone with a shotgun to kill someone would certainly qualify as a statement against interest under the Rule, assuming that there were corroborating circumstances. And, unlike its federal counterpart, Texas’ statement against interest rule does not require that the declatant be unavailable.
Did You Notice That?: 2nd Circuit Excuses Lack of Written Notice Under Rule 902(11), by Evidence ProfBlogger, Editor: Colin Miller, EvidenceProf Blog
The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.
So, what happens if a party does not give reasonable written notice of its intent to offer a business record into evidence but there is evidence that the opposing party had actual notice of this intent? That was the question addressed by the Second Circuit in its recent opinion in United States v. Komasa, 2014 WL 4233396 (2nd Cir. 2014). . . .
Four Amendments: Supreme Court Amends Four Federal Rules of Evidence, by Evidence ProfBlogger, Editor: Colin Miller, EvidenceProf Blog
The Supreme Court has approved four amendments to the Federal Rules of Evidence that will take effect on December 1, 2014 unless Congress takes another action. The Rules altered? Federal Rule of Evidence 801(d)(1)(B) and Federal Rules of Evidence 803(6), (7), and (8).
A New Theory of Hearsay, Take 4: Further Thoughts on United States v. Boyce, by Colin Miller, Editor, EvidenceProf Blogger
It’s interesting that Jeff [Jeffrey Bellin] posted an entry about Judge Posner’s concurrence in United States v. Boyce yesterday [February 14, 2014]. My latest set of hearsay posts has come in connection with a CLE I’m conducting in which I argue, in essence, that Rule 807 should swallow much of Rules 801 through 806. So, it’s refreshing to see that such an esteemed jurist apparently holds a similar viewpoint. Here are some more thoughts on Boyce:
United States v. Boyce is a garden variety case in which a 911 call was admitted under the present sense impression to the rule against hearsay (Federal Rule of Evidence 803(1)) and/or the excited utterance exception (Federal Rule of Evidence 803(2)). They also again raise the question of why courts are not engaging in a Rule 403 balancing of such statements. . . .
Judge Posner Advocates Reforming the Hearsay Rules, by Evidence ProfBlogger, Colin Miller, Editor, EvidenceProf Blogger
As Colin explores alternate hearsay theories in his posts, it is worth highlighting a concurrence in U.S. v. Boyce, decided today in the Seventh Circuit, where Judge Richard Posner attacks the merits of both the present sense impression and excited utterance hearsay exceptions (FRE 803(1) and (2)). As Judge Posner notes, the arguments against these exceptions are not new, but his no-holds-barred critique, stating the exceptions are “not even good folk psychology,” is sure to generate interest in revisiting the hearsay thicket.
A New Theory of Hearsay, Take 3: Rule 602 & Anonymous Hearsay Declarants, by Editor Colin Miller, Evidence ProfBlogger, EvidenceProf Blog
Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
As a Rule 803 exception, this present sense impression exception applies “regardless of whether the declarant is available as a witness….” Indeed, the exception can apply even if the declarant has not been identified. But, like with a witness’s testimony at trial, a statement offered under a hearsay exception is only admissible if the declarant had personal knowledge under Federal Rule of Evidence 602. So, where does that leave us?