Phillip Thomas at the Mississippi Litigation Blog has two nice posts. It may be confirmation bias, because he agrees with me on both (and in one explicitly so), but the posts are both worth reading.
One is about the Rebelwood case, and (like me) thinks that Justice Chandler got it right: The police report was double hearsay and should have been excluded as such, regardless of all the talk about its trustworthiness. Justice Chandler’s opinion was the only one that dealt with the hearsay issues in a rigorous way.
The other post is a follow-up on the controversy about Justice Graves and the judicial performance opinions. Thomas shares my opinion that this controversy would not have occurred but for the really terrible habit of Mississippi Supreme Court justices’s unexplained votes (dissenting or concurring-in-part without written opinions). This moment provides the wonderful object lesson this problem has always needed.
and should have been excluded as such, regardless of all the talk about its trustworthiness
Doesn’t Thomas say it was admissible to impeach Lewis after he shot his mouth off about there being no document contradicting the plaintiff’s theory of the case?
(And I still think, if I were the defense, I’d be arguing the catchall hearsay exception on facts like those.)
I’ve got no problem with it coming in not-for-its-truth but rather to show that there si a document the police officer ignored or lied about. I’ve got a problem with all that talk of “trustworthiness” and admitting it directly.
I think trustworthiness is relevant under the catchall exception:
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
Very difficult to say the report wasn’t admissible under all three of those. But the MSSC should’ve said that this was a MRE 803(24) issue, as Rebelwood argued it was (see op at para 4). The catchall exists, I think, to avoid a miscarriage of justice due to the rigor of the hearsay rule.
I thought the catchall exists to allow the court to deal with new kinds of evidentiary issues, while the sorts of evidentiary issue that has come up for years is subject to “the rigor of the hearsay rule.”
I’d certainly not count “statements suspects say to cops” as having any kind of trustworthiness, and that’s what I understand was offered here.
I went back and re-read the opinion.
If I had been able to vote, I would have reversed the trial judge for refusing allow use of the police report to cross-examine the police “expert” who testified he’d read it and that there was no documentation of an off-apartment shooting. Chandler’s dissent– which just deals with substantive admissibility– is correct on hearsay law but should have noted that the cross-exam should have been allowed.
I am horrified at the idea that the contents of a police report is now considered “trustworthy” and admissible. This is going to come back to haunt us in other cases, particularly criminal cases.
I am absolutely sure there is commentary from the time the rules were adopted (on the federal side) that the catchall exceptions should not be allowed to swallow the hearsay rule. And that’s what is occurring.
I am horrified at the idea that the contents of a police report is now considered “trustworthy” and admissible.
Well, that does not seem to be new law. The actual holding was that, *on these facts*, the report appeared trustworthy. There is no holding that every police report is now trustworthy.
Tho I’m not sure why the MSSC held it was error not to conduct a trustworthiness analysis, and then went on to do so itself rather than remanding for the trial court to do so. I mean, I can see “why” — rhymes with “Kinston Widd” — but it seems more proper to do it on remand.