Federal Evidence Review

Eighth Circuit considers the admissibility of a statement under the “res gestae” doctrine, in United States v. James, 564 F.3d 960 (8th Cir. May 11, 2009) (No. 08-2356)

The term “res gestae” occasionally appears in the cases, but it is not found in the Federal Rules of Evidence or even in the Advisory Committee Notes. While commentators dismiss the res gestae doctrine as now displaced by several hearsay exceptions in the FRE, at times the term is resurrected to support the admission of hearsay statements. Whether the doctrine is dead or superseded, its ghostly apparition can still be seen in the case reports. The Eighth Circuit recently considered its application.

In James, the defendant was arrested during a crack-down on open-air drug dealing. After meeting an undercover detective on the street, the defendant directed him to “my boy down the street” as a source for the drugs the detective requested. The defendant rode with the detective to the location for the trade. The defendant was arrested after the transaction was made and the detective signaled for the arrest.

During the undercover transaction, the defendant made contact with a man, later determined to be Marcel Hogans. After defendant James was arrested, “[s]everal other officers pursued Hogans, who had retreated into the residence. The officers identified themselves as police and asked to enter the house. Hogans, who could see the officers outside, brandished a firearm and yelled, ‘I got something for your ass!’ He then fled through a back door, was quickly apprehended, and was found to be in possession of the buy money.” James, 564 F.3d at 962. At the trial of defendant James, he objected to admission of Hogan’s statement “I got something for your ass!” as hearsay. After the defendant was convicted, on appeal he challenged the admission of the statement as inadmissible hearsay.

The circuit affirmed the admission of the statement: “The statement was not admitted for the truth of the matter asserted, but, together with the circumstances in which it was made, as res gestae evidence to explain to the jury the events that gave rise to the drug transaction and James's arrest.” James, 564 F.3d at 963.

For many commentators, this use of the term to explain why the statement is admitted is quaint. In his analysis of the law of evidence, Wigmore contended:

“The Latin expression 'res gestae' or 'res gesta,' literally 'things done' or 'thing transacted,' has long served as a catchword .... [T]he phrase has frequently served both to let in utterances which in strictness were not admissible and to exclude utterances which might well have been admitted. And frequently also its indefiniteness has served as a basis for rulings where it was easier for the judge to invoke this imposing catchword than to think through the real question involved. The phrase is antiquated. By modern judges it is being gradually discarded. It is superfluous, and serves only to obscure the logic of the rules. It should be left to oblivion.”

John H. Wigmore, A Student's Textbook of the Law of Evidence 279 (1935) (emphasis added). According to Wigmore, the doctrine began to find use in the early 1800's as a “convenient escape” from the hearsay rule and that it found “abundant support in the decided federal cases.”. 6 J. Wigmore, Evidence § 1767 (3d ed. 1940).

As the Fifth Circuit noted, “Before the Federal Rules of Evidence were promulgated, res gestae was understood to encompass four distinct hearsay exceptions: ‘(1) declarations of present bodily condition; (2) declarations of present mental state and emotion; (3) excited utterances; [and] (4) declarations of the present sense impression.’ Fed. R. Evid. 803 now explicitly accounts for these exceptions.” F.D.I.C. v. Fidelity & Deposit Co. of Maryland, 45 F.3d 969, 979 (5th Cir. 1995) (citations omitted).

What is ironic about James is an earlier assessment by the Eight Circuit on the use of the res gestae doctrine:

“The doctrine of res gestae has an undistinguished past. According to Wigmore, courts in general have reduced the term res gestae to a useless and misleading shibboleth by embracing within it two separate and distinct categories of verbal statements, one of which is truly an exception to the hearsay rule and the other of which is not, the two being admissible in evidence under different principles. 6 Wigmore, Evidence § 1767, at 255 (Chadbourn rev. 1976).”

United States v. Elem, 845 F.2d 170, 173 (8th Cir. 1988) (In prosecution for possession of a firearm by a felon, no error in excluding certain exculpatory statements by defendant, dismissing his contention “that these statements were admissible as a part of the res gestae.”)

Other circuits have explicitly rejected the res gestae doctrine, unless the FRE otherwise permit admission of the statement. See, e.g., Miller v. Keating, 754 F.2d 507, 509 (3d Cir. 1985) (“The old catchall, ‘res gestae,’ is no longer part of the law of evidence.”); Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1056 (6th Cir. 1983) (“We are unwilling to recognize [a res gestae] exception.”).

While many courts have generally rejected res gestae as a useful concept and achieve many goals the doctrine served in the process of applying FRE 803, it appears old ghosts die hard. If James is any indication, references to “res gestae” evidence may persist as a convenient short-hand way to indicate that a hearsay objection has no merit.