A house on fire, an occupant wakes up and yells \u201cmy brother, my brother.\u201d\u00a0 The occupant dies, and his brother is charged with murder.\u00a0 Are the words \u201can assertion,\u201d are they offered for the truth of the matter asserted, and should they be admissible?\u00a0 This precise scenario was at the heart of a recent decision issued by the New Jersey Supreme Court, and that court\u2019s analysis got it at least partly correct.<\/p>\n
<\/p>\n
The case is State v. Prall<\/u>, 2018 N.J. LEXIS 120, and was decided in late January.\u00a0 The evidence at trial was as follows:<\/p>\n
During the trial, Kimberly testified \u2014 without objection \u2014 that when John awoke in flames he shouted repeatedly, “my brother<\/strong>, my brother<\/strong>” 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 \u2014 excited utterance under\u00a0[*20]\u00a0 N.J.R.E.<\/em> 803(c)(2), and dying declaration under N.J.R.E.<\/em> 804(b)(2).<\/p>\n State v. Prall<\/u>, Nos. A-28, 078169, 2018 N.J. LEXIS 120, at *19-20 (Jan. 31, 2018).<\/p>\n Where did the Court begin? It presumed the words were an assertion and were offered for the truth of the matter. \u00a0Working from that presumption, it then correctly reasoned that regardless of which hearsay exception applied, the words were nonetheless inadmissible.<\/p>\n Why, a lack of personal knowledge \u2013 the forgotten foundational core of all hearsay declarations except<\/em> statements of a party opponent.<\/p>\n 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.<\/p>\n 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<\/strong>, my brother<\/strong>,” were inadmissible hearsay because they were not based on actual knowledge. The statements should not have been admitted.<\/p>\n State v. Prall<\/u>, at *31.<\/p>\n So, why do I describe this as partly<\/em> right?\u00a0 Omitted is a discussion of what the assertion is.\u00a0 The accused\u2019s name was \u201cTormu.\u201d\u00a0 Had John yelled \u201cTormu, Tormu,\u201d would there be an assertion?\u00a0 Or is what is really transpiring here a concern for an implied assertion \u2013 that \u201cmy brother, my brother\u201d has relevance only if considered for the implied assertion of \u201cmy brother, my brother, you started the fire<\/em>.?\u201d<\/p>\n This analysis is what is missing from the Court\u2019s well-reasoned discussion.\u00a0 Also omitted is any concern regarding ambiguity.\u00a0 Was John crying out his love for his brother?\u00a0 Calling for help from his brother? In a daze due to the fire and yelling meaningless words?\u00a0 Both Rules 401 and 403 are in play here, yet neither\u00a0 was mentioned.\u00a0 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.<\/p>\n There are two essential takeaways from Prall<\/em>.\u00a0 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\u2019s arsenal a claim of no personal knowledge may be an effective barrier to the admission of hearsay statements.\u00a0 A separate one involves curative instructions.\u00a0 The trial judge, having admitted the testimony, subsequently struck it from the record.\u00a0 But that action, 12 days later, was deemed \u2018too little, too late.\u2019\u00a0 Not all \u201ccuratives\u201d cure.<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" A house on fire, an occupant wakes up and yells \u201cmy brother, my brother.\u201d\u00a0 The occupant dies, and his brother is charged with murder.\u00a0 Are the words \u201can assertion,\u201d are they offered for the truth of the matter asserted, and should they be admissible?\u00a0 This precise scenario was at the heart of a recent decision<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,6,7,11],"tags":[],"coauthors":[238],"class_list":["post-2145","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-criminal-law","category-evidence","category-trial-advocacy"],"yoast_head":"\n