Sunday, April 11, 2010

Is the res gestae Hearsay Exception Really Dead?

Is the res gestate exception to the hearsay rule really dead? (You won't find it listed in the Federal Rules of Evidence or in other codifications of the law of evidence.)

But in the State of Washington the res gestae exception is half-dead (and, if the law of non-contradiction applies, half-alive [but if Zadeh's fuzzy logic applies one would say that the degree of the membership of this exception in "living hearsay exceptions" is .5 {just to be completely clear on this point}]).

How is it possible that the res gestae exception still has some life in the State of Washington? Washington's evidence code does not have a res gestae exception.

The Supreme Court of Washington (or most of it, in any event) believes that the historical meaning of the res gestae hearsay exception is material to the question of the scope of Washington State's constitutional guarantee of confrontation. The Washington court reasoned that a judicial determination of the proper contemporary meaning of the State's confrontation guarantee (which speaks of the need for a "face to face" encounter) should at least be influenced by the meaning and extent of the hearsay rule when the constitution of the State of Washington was adopted. The Washington Supreme Court said that the statements whose admissibility were in question -- statements made by a telephone caller to 911 operator -- would have fallen within the res gestae hearsay exception to the hearsay rule. State v. Pugh, 167 Wash.2d 825, 225 P.3d 892 (2009) (susbtantial relying on the 1888 edition of Greenleaf's treatise).

Wigmore might or might not have been pleased. See 1A Wigmore on Evidence Section 218 at 1888 (P. Tillers rev. 1983). But dissenting Justice Sanders was clearly displeased. Id. at 905. He asked, perhaps a bit churlishly, "What is there about 'face to face' that the majority doesn't understand?" Beyond that, he chided the majority for relying on the discredited res gestae exception. He noted that Wigmore "criticize[d] the exception as 'most frequently used merely as a cover for loose ideas and ignorance of principles.'" Id. at 906 n. 2. In addition to that, that Justice Sanders said:

¶ 58 This provision could not be clearer: “In criminal prosecutions, the accused shall have the right ... to meet the witnesses against him face to face.” Const. art. I, § 22. We have previously determined an independent analysis of our confrontation clause is warranted. State v. Foster, 135 Wash.2d 441, 473, 481, 957 P.2d 712 (1998) (Alexander, J., concurring in part, dissenting in part; C. Johnson, J., dissenting); State v. Shafer, 156 Wash.2d 381, 391, 128 P.3d 87 (2006). The majority thus correctly turns to the text of our constitution and the law in place at the time of its ratification. Yet here the majority soon goes astray.

¶ 59 The text of our constitution is clear. Article I, section 22 states whom the defendant in a criminal case is entitled to meet-the “witnesses against him”-and how he is entitled to meet them-“face to face.” Our early cases construed this requirement in accordance with its plain language: “[t]his means that the examination of such a witness shall be in open court, in the presence of the accused, with the right of the accused to cross-examine such witness as to facts testified to by him....” State v. Stentz, 30 Wash. 134, 142, 70 P. 241 (1902), abrogated on other grounds by State v. Fire, 145 Wash.2d 152, 34 P.3d 1218 (2001). But the majority nevertheless argues the clause must not be read literally, for to do so would eliminate all hearsay exceptions. Majority at 897-98. However if a hearsay exception conflicts with our constitution, this court simply has no authority to choose the exception over the constitution.

¶ 60 Our constitution proclaims, “[w]e, the people of the State of Washington ... do ordain this constitution.” Const. pmbl. It is the people who ratified our constitution, and “the constitution is the expression of the people's will, adopted by them.” State ex rel. Albright v. City of Spokane, 64 Wash.2d 767, 770, 394 P.2d 231 (1964) (emphasis added). Therefore in analyzing the constitutional text “the intent to be determined is that of the people who ratified the document rather than the intent of the handful of men who wrote it.” Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L.Rev. 491, 511 (1984). Thus, “[a]ppropriate constitutional analysis begins with the text and, for most purposes, should end there as well.” Malyon v. Pierce County, 131 Wash.2d 779, 799, 935 P.2d 1272 (1997).

¶ 61 But our majority takes exactly the opposite approach. It looks not to the intent of the people who ratified our constitution in 1889, best illuminated by its text, but the res gestae exception to the hearsay rule of evidence as it was at the time.FN2 Presumably the majority believes if those who wrote the constitution were aware of res gestae as a rule of evidence, they must have intended to subordinate the clear text to it. But the people did not ratify the res gestae doctrine. The people ratified just the opposite, a text so plain its meaning is unmistakable. Admittedly, the meanings of words may change. Thus we might rightfully “inquire about the accepted meaning of the words at the time the provision was adopted,” Utter, supra, at 509 (citing State v. Brunn, 22 Wash.2d 120, 139, 154 P.2d 826 (1945)), because “[c]onstitutions being the result of the popular will, the words used therein are to be understood ordinarily in the sense that such words convey to the popular mind,” State ex rel. State Capitol Comm'n v. Lister, 91 Wash. 9, 14, 156 P. 858 (1916). But it hardly seems necessary to examine whether the popular meaning of “face to face” has changed over the past hundred-odd years. A textual analysis “includes the words themselves, their grammatical relationship to one another, as well as their context.” Malyon, 131 Wash.2d at 799, 935 P.2d 1272. Thus we repair to the words, grammar, and context of our confrontation clause, rather than the subtleties of an obscure evidence rule relating to res gestae.

Id. at 905-906.

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.