The “Other” Hearsay Exception

September 14, 2015 § Leave a comment

This happens from time to time in court:

Lawyer 1: Objection; hearsay.

Lawyer 2: Your honor, it’s an exception to the rule.

Judge: Which exception?

Lawyer 2: (After opening his rule book, searching frantically) Rule 803(24), judge.

MRE 803(24) is headed “Other Exceptions,” and it provides that a statement that does not neatly fit into the category of any other exception may be admitted if it has guarantees of trustworthiness equivalent to the specific exceptions, and if the court determines that (a) it is offered as evidence of a material fact, (b) it is more probative than any other evidence that the proponent could offer through reasonable efforts, (c) the general purpose of these rules (i.e., MRE 102) will best be served by admission of the statement.

Counsel usually makes a fairly cogent argument on the above. The judge then follows up with this query:

Judge: And did you give counsel opposite advance notice before trial?

That’s usually where the discussion ends, because most attorneys have not read the rest of Exception 24. Its most important language reads this way:

However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Notice that the rule does not say that the statement would be objectionable if advance notice were not given. It says specifically that the statement “may not be admitted” without advance notice.

The case law is consistent that advance notice is a prerequisite to admissibility. See, for example, Benton v. Ivy, an unpublished 2012 COA decision that I posted about here. Also, Balius v. Gaines, 908 So.2d 791, 804 (Miss. App. 2005).

While you’re mulling this over, take a moment to glance at MRE 902(11)(C)( i ).

A Rules Gap that Can be a Fool’s Trap

October 16, 2013 § 4 Comments

MRCP 32 (a)(3)(E) allows for the use of a deposition at trial of a medical doctor “for any purpose.” R32(a) says that the deposition may be used ” … so far as admissible under rules of evidence applied as though the witness were then present and testifying… ”

In practice, that language has been applied to excuse medical doctors from personal appearance at trial, allowing their testimony to be presented by video deposition, or by reading into the record in jury trials, or by introduction of the transcribed deposition in bench trials. The deposition of a medical doctor, then, per this rule, has been deemed admissible in evidence as though the doctor were present and testifying, simply because the witness is a medical doctor.

When this amendment to rule 32 was adopted. It was seen as a friendly gesture to the medical profession, a way to encourage testimony of doctors without unduly interfering with their schedules. All doctor testimony henceforth would be via deposition. It was a no-cost win-win.

But, as Lee Corso would say, not so fast my friend.

The deposition of the medical doctor is unquestionably a hearsay statement, so how does MRCP 32(a) mesh with MRE 804(a), which creates the hearsay exception for persons deemed unavailable to testify? If you will read MRE 804(a), it is clear that the mere status of medical-doctorhood does not automatically fit one into any of the six definitions of unavailability set out in subsection (a). Nor does that status automatically fit into any of the hearsay exceptions in subsection (b). It may be that the doctor’s statement could be qualified as an exception under subsection (b)(5), but that would require a finding by the court, after prior notice by the offering party to counsel opposite.

The answer is that the MRE controls. That’s what MRE 1003 states: “All evidentiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the Mississippi Rules of Evidence are hereby repealed.”

This gap between the two rules caught a party unprepared in the case of Parmenter v. J & B Enterprises, Inc., 99 So.3d 207, 219 (Miss. App. 2012), in which the trial judge disallowed the expert testimony via deposition per MRCP 32(a) where there was no proof of unavaiability as defined in MRE 804. The appellant unsuccessfully argued that MRCP 32(a) allowed the introduction. The COA held, to the contrary, that the MRE provision controlled.

Don’t assume that, just because you have gotten that doctor’s deposition, it will automatically be admissible in lieu of the doctor’s personal testimony. To do that, you will still have to prove the doctor’s unavailability as defined in MRE 804. That may be something you can achieve via requests for admission, or by stipulation, or by making a record.

Oh, and don’t overlook (1) that you have to plant somewhere in the record enough proof to satisfy the judge of the doctor’s qualifications to testify as an expert in the first place, and (2) that MRCP 32(a) applies only to medical doctors, not to PhD clinical psychologists. Those were two stumbling blocks for the plaintiff in Parmenter.

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