Certain developments in the law of evidence in Missouri have made it somewhat easier in recent years to prosecute domestic violence cases. One of those developments is the recognition of the "residual" hearsay exception by the Missouri Supreme Court in 1997.
Under the traditional law of hearsay, out of court statements made by a person may not generally be received into evidence; rather, the person must testify in person. Thus, when a domestic violence victim would change her mind and refuse to testify against her abuser, a prosecutor often could not prove the case in court simply by having the police officer tell the judge or jury what the victim had previously told him had happened. As a result, many cases would be lost despite the prosecutor’s best intentions to vigorously enforce domestic violence laws.
For many years, Missouri has specifically recognized numerous exceptions to the hearsay rule. In 1997, Missouri added the "residual" hearsay exception, which has been recognized in Federal Courts for decades.
Under this exception, hearsay testimony is admissible if it meets a two-prong test: (1) The necessity of admitting the evidence in that it pertains to a material fact and evidence of similar probative value cannot otherwise be obtained by the proponent; and (2) Reliability and trustworthiness in that factors such as motivation for speaking truthfully, the timing of the statement, the basis of declarant’s knowledge, the spontaneity of the statement and its surrounding circumstances tend to support its reliability and trustworthiness.
The Cape Girardeau County Prosecutor’s Office makes frequent use of the residual hearsay exception and has created a sample trial brief to be used in cases where this is an issue.
Sample Trial Brief
STATE'S TRIAL BRIEF ON RESIDUAL HEARSAY EXCEPTION
ANY MOTION BY DEFENDANT FOR THE COURT TO REFUSE TO ADMIT INTO EVIDENCE THE TESTIMONY OF OFFICER JAMES SMITH AS TO STATEMENTS MADE TO HIM BY VICTIM JANE DOE SHOULD BE DENIED BECAUSE THE STATEMENTS ARE ADMISSIBLE UNDER THE TWO-PRONG TEST OF THE RESIDUAL EXCEPTION TO THE HEARSAY RULE IN THAT: (1) THERE IS A NECESSITY TO ADMIT THE TESTIMONY IN THAT IT PERTAINS TO A MATERIAL FACT AND EVIDENCE OF SIMILAR PROBATIVE VALUE CANNOT OTHERWISE BE OBTAINED BY THE PROPONENT; AND (2) RELIABILITY AND TRUSTWORTHINESS OF THE STATEMENTS IS SHOWN BY FACTORS INCLUDING THE TIMING OF THE STATEMENT, THE BASIS OF DECLARANT’S KNOWLEDGE, AND THE SPONTANEITY OF THE STATEMENT AND ITS SURROUNDING CIRCUMSTANCES.
THE EVIDENCE TO BE OFFERED
The defendant is charged with assault. His victim may be unavailable at the time of the (hearing) (trial) in that (she is married to defendant and may elect to assert a spousal privilege not to testify against him) (she may invoke a Fifth Amendment privilege against testifying) (she is dead) (she has disappeared and her whereabouts are unknown). Thus, the State will be offering the hearsay statements the victim made to Officer James Smith under Missouri’s new residual exception to the rule against hearsay.
THE LAW
The Missouri Supreme Court adopted the residual exception to the rule against hearsay in its concurring opinion in State v. Bell, 950 S.W.2d 482 (Mo. banc 1997). This concurrence by Judge Limbaugh was a 4-3 decision adding Missouri to the 29 states that had already adopted this exception. See generally Todd M. Thornhill, "Declarations of the Dead: Hearsay’s Residual Exception Comes to Missouri," 56 J. of Mo. Bar 14 (2000). Under this exception, hearsay testimony is admissible if it meets a two-prong test: (1) The necessity of admitting the evidence in that it pertains to a material fact and evidence of similar probative value cannot otherwise be obtained by the proponent; and (2) Reliability and trustworthiness in that factors such as motivation for speaking truthfully, the timing of the statement, the basis of declarant’s knowledge, the spontaneity of the statement and its surrounding circumstances tend to support its reliability and trustworthiness. The Missouri Supreme Court cited with approval the Georgia case of Higgs v. State, 351 S.W.2d 448 (Ga. 1987), in which a statement made to a police officer by a witness to a shooting immediately after the shooting was admitted into evidence under this exception after the witness married the Defendant and refused to testify against him, asserting the spousal privilege. Similarly, many cases have held that the statements made by a domestic violence victim to police officers or family members shortly after the abuse are admissible under this exception when the victim later refuses to testify. See State v. Maestas, 584 P.2d 182 (N.M. Ct. App. 1978). The exception is often used to admit statements made by homicide victims. See State v. Beam, 292 N.W.2d 302 (Neb. 1980).
In the present case, the court should find that the testimony of Officer James Smith about what he was told by the victim meets this two-prong test. The statement was made within minutes after the victim had been assaulted by the defendant, by the victim who was an eye-witness to the events. She was upset and outraged, as anyone under those circumstances would be. Thus, her statement has indicia of reliability. She is the only person who can confirm the details of the assault and she is unavailable as a witness. Thus, there is necessity to receive her hearsay statement into evidence.
CONCLUSION
For the reasons stated above, the Court should overrule any objection the defense makes to the admission of the testimony that would otherwise be hearsay.
- H. MORLEY SWINGLE
- PROSECUTING ATTORNEY