A house on fire, an occupant wakes up and yells “my brother, my brother.” The occupant dies, and his brother is charged with murder. Are the words “an assertion,” are they offered for the truth of the matter asserted, and should they be admissible? This precise scenario was at the heart of a recent decision issued by the New Jersey Supreme Court, and that court’s analysis got it at least partly correct.
The case is State v. Prall, 2018 N.J. LEXIS 120, and was decided in late January. The evidence at trial was as follows:
During the trial, Kimberly testified — without objection — that when John awoke in flames he shouted repeatedly, “my brother, my brother” as he attempted to extinguish the fire and flee from the Trenton home. During a break, the court expressed concern that those statements were impermissible hearsay. The prosecutor argued that two hearsay exceptions applied — excited utterance under [*20] N.J.R.E. 803(c)(2), and dying declaration under N.J.R.E. 804(b)(2).
State v. Prall, Nos. A-28, 078169, 2018 N.J. LEXIS 120, at *19-20 (Jan. 31, 2018).
Where did the Court begin? It presumed the words were an assertion and were offered for the truth of the matter. Working from that presumption, it then correctly reasoned that regardless of which hearsay exception applied, the words were nonetheless inadmissible.
Why, a lack of personal knowledge – the forgotten foundational core of all hearsay declarations except statements of a party opponent.
An excited utterance or dying declaration may be excluded if the declarant did not have direct personal knowledge of the statement’s basis. Thus, to be admissible, John’s statements to Kimberly must have been based upon John’s “firsthand” observations.
The fire started while John and Kimberly were asleep, and John did not awaken until he was engulfed in flames. The record does not contain evidence that John made any observations or had direct knowledge that defendant started the fire. Thus, whether offered as dying declarations or excited utterances, John’s statements, “my brother, my brother,” were inadmissible hearsay because they were not based on actual knowledge. The statements should not have been admitted.
State v. Prall, at *31.
So, why do I describe this as partly right? Omitted is a discussion of what the assertion is. The accused’s name was “Tormu.” Had John yelled “Tormu, Tormu,” would there be an assertion? Or is what is really transpiring here a concern for an implied assertion – that “my brother, my brother” has relevance only if considered for the implied assertion of “my brother, my brother, you started the fire.?”
This analysis is what is missing from the Court’s well-reasoned discussion. Also omitted is any concern regarding ambiguity. Was John crying out his love for his brother? Calling for help from his brother? In a daze due to the fire and yelling meaningless words? Both Rules 401 and 403 are in play here, yet neither was mentioned. That may be appropriate because the State, having prosecuted the case, argued that the words were bring offered for their truth and the implicit assertion contained therein; but the deeper problems warranted discussion.
There are two essential takeaways from Prall. First, this is a rare case where the personal knowledge requirement of hearsay declarations was front and center,; and it serves as a powerful reminder that in the lawyer’s arsenal a claim of no personal knowledge may be an effective barrier to the admission of hearsay statements. A separate one involves curative instructions. The trial judge, having admitted the testimony, subsequently struck it from the record. But that action, 12 days later, was deemed ‘too little, too late.’ Not all “curatives” cure.