Federal Evidence Review

In aggravated sexual abuse of a child trial, 40-minute DVD recording of a forensic interview with the child victim was admissible under the residual hearsay exception; because the record established that the trial court considered the requisite factors for the residual hearsay exception, explicit findings were not required, in United States v. Smith, 591 F.3d 974 (8th Cir. Jan. 5, 2009) (No. 09-1036)

The residual hearsay rule is considered the “catch-all” exception to the general rule against admitting hearsay. Before any statement may be admitted under the rule, it requires that “equivalent circumstantial guarantees of trustworthiness” are shown consistent with other hearsay exceptions under FRE 803 and FRE 804. Specific factors are identified under the rule and case law. A recent case considered whether explicit findings are necessary as a precondition to admitting a statement under the residual hearsay rule.

In the case, the defendant was prosecuted for the aggravated sexual abuse of an eight-year old. After the incident was reported, a 40-minute DVD recording of a forensic interview with the child victim was made. Before trial, the defendant moved to exclude the DVD on hearsay grounds. The ruling was reserved. At trial, the defense called the forensic examiner of child advocacy center to establish an inconsistent statement made by the child victim. The government was allowed to play the DVD of the interview under the residual hearsay exception. After the jury convicted the defendant, on appeal he challenged the admission of the DVD interview.

Authentication

The Eighth Circuit affirmed the admission of the DVD interview. The circuit rejected the defense claim that the DVD was not properly authenticated. At trial, the examiner “identified the DVD as a recording of her forensic interview with B.R. and indicated that the DVD was an accurate recording of the interview,” which satisfied the authentication requirement under FRE 901(b). The DVD did not have to be marked in order to be authenticated. Smith, 591 F.3d at 979 (citing United States v. Two Elk, 536 F.3d 890, 905 (8th Cir. 2008) (photographs authenticated when witnesses with knowledge testified that they were accurate depictions)).

Residual Hearsay Exception

The circuit also rejected the defendant’s claim that the trial court failed to make explicit findings for each of the FRE 807 factors and the non-exclusive factors to show circumstantial guarantees of trustworthiness in admitting statements of a minor sexual abuse victim during a forensic interview, which were identified in United States v. Thunder Horse, 370 F.3d 745, 748 (8th Cir. 2004) (admitting 10-year old minor statements concerning sexual abuse to investigator; circumstantial guarantees of trustworthiness included: interview was conducted seventeen days after the incident; investigator had twenty years of experience interviewing child victims; open-ended questions were used instead of leading questions; the minor was “ten years old and discussed the incident of sexual abuse in a childlike way”; the victim denied on cross-examination telling a friend about the night of the incident, contrary to defense claims). As the circuit explained:

“The district court was not required to make a finding on the record as to each of the Rule 807 requirements and the Thunder Horse factors as long as the record demonstrates that the district court considered the relevant factors…. Here, the record demonstrates that the district court considered the Rule 807 requirements and the Thunder Horse factors. Smith filed a motion in limine asserting that the DVD was inadmissible hearsay, and the Government filed a response outlining the requirements for admission of the DVD under Rule 807 and Thunder Horse. During the pre-trial conference, the district court addressed the motion in limine but ultimately reserved ruling on the motion, stating that it would ‘make the necessary factual findings under Rule 807’ and consider the ‘four or five nonexclusive [ Thunder Horse ] factors’ during the trial. At trial, the Government’s cross-examination of Seviour established the foundational requirements for admission of the DVD under Rule 807. When Smith objected to the Government’s foundational questions, the district court overruled the objections, noting that the Government was ‘laying the foundation to the offer of the interview.’ As the cross-examination proceeded, the district court stated that it was satisfied with the Government’s Rule 807 foundation and its inquiry into the Thunder Horse factors. The district court then admitted the DVD, noting that it overruled Smith’s objection. Because the record demonstrates that the district court considered the Rule 807 requirements and the Thunder Horse factors, it was not required to make a finding on the record as to each requirement and factor.”

Smith, 591 F.3d at 981.

As the Ninth Circuit has pointed out under the residual hearsay exception, “Specific findings fulfill two purposes: (1) they create a detailed record for review; and (2) they ensure that the district court has met all the necessary criteria before admitting evidence.” Mutuelles Unies v. Kroll & Linstrom, 957 F.2d 707, 713 (9th Cir. 1992) (district court erred in failing to make specific findings; however admitting deposition and declaration under residual exception). Nonetheless, the absence of express findings may not be fatal so long as the record demonstrates the trial court considered them.