Federal Evidence Review

Statements contained in foreign records, which included United Nations correspondence between a country’s mission and its intelligence service, were supported by adequate circumstantial guarantees of trustworthiness based on the the distinctive characteristics of the documents, witness identification of handwriting, and the relationship of the parties involved, in United States v. Dumeisi, 424 F.3d 566 (7th Cir. 2005) (No. 04-1882)

The admission of foreign records can present unique challenges given that the records may have been created in another country under circumstances that may not be readily verifiable. The residual hearsay exception may provide a vehicle to admit foreign records, as demonstrated in a Seventh Circuit case.

In the case, the defendant was accused of acting as an agent of the Saddam Hussein government in Iraq, and was prosecuted for acting in the United States as an agent of a foreign government without prior notification to the Attorney General, conspiring to act as an agent, and committing perjury. Before trial, the defendant filed a motion in limine to exclude admission of correspondence between individuals in the Iraqi Mission to the United Nations (“IMUN”) in New York and the Iraqi Intelligence Service (“IIS”) in Baghdad, referred to as “The Baghdad File.” The documents referred to the defendant’s intelligence related activities. The trial court admitted the file at trial under the residual hearsay exception, FRE 807. A high ranking official who had served in the IIS authenticated “positively identif[ied]” the intelligence records and “identified distinctive characteristics including the style and form of the documents” such as the “symbols, codes, abbreviations, and signatures of some fellow IIS officers.” Dumeisi, 424 F.3d at 575. The jury convicted the defendant. On appeal, he challenged the admission of “The Baghdad File” records.

The Seventh Circuit affirmed the admission of the evidence under FRE 807. The central hearsay admissibility issue on appeal was whether the challenged statements had circumstantial guarantees of trustworthiness that were equivalent to the other hearsay exceptions. In particular, the circumstantial guarantee of trustworthiness for the statements was supported in part by the distinctive circumstances used to authenticate the records. Additionally, trial witnesses identified the handwriting of the defendant and another individual on phone records and report which connected the individuals, along with the relationship of the parties involved.

The circuit noted that the defense had “raise[d] a valid question with respect to the timing of the discovery of the Baghdad File” and prior investigative activity of the agents. However, the circuit was unconvinced and noted that the agents could have obtained information referenced in the file for the questioning of others from other sources. The statements in the records were properly admitted under FRE 807. Dumeisi, 424 F.3d at 576.
The Dumeisi case highlights some of the factors that may be considered to admit statements contained in foreign records under the residual hearsay exception. The primary issue was identifying sufficient means of showing the circumstantial trustworthiness of the statements.