Excluding affidavits by the declarant (plaintiff's mother), family members and friends concerning her age when she left the country to resettle in a foreign country; the affidavits were hearsay and not covered by the FRE 804(b)(4) and FRE 803(19) hearsay exceptions for statements concerning "personal or family history"; the declarant's statements were "not inherently reliable" in light of the passage of eighty years since the events the statements purportedly recount, which were neither personally witnessed nor inherently significant in the personal or family history, in Porter v. Quarantillo, __ F.3d __ (2d Cir. July 8, 2013) (No. 13-119-cv)Two rules of the FRE deal with the admissibility of "personal or family history": FRE 804(b)(4) and FRE 803(19). Why two rules and what is the distinction in their application? The Second Circuit recently decided a case that explored the similarities and differences between the rules and their applications, providing guidance in an aspect of evidence law that has received minimal attention.
In the case, plaintiff Porter, a naturalized citizen, sought a declaratory judgment "that he was entitled to derivative United States citizenship as of his birth." His problem was the paucity of admissible evidence that would support this conclusion. The plaintiff's theory in the case "rested in large part on the assertion that his mother, Mary Diamond, herself a United States citizen, had remained in this country for over a year following her birth before she moved to St. Vincent and the Grenadines. Lacking other evidence, Porter attempted to show his mother's age at the time of her move by reference to a number of affidavits from his mother, other family members, and a family friend." Porter, __ F.3d at __.
The trial court granted summary for the immigration service. The trial judge refused to admit into evidence the affidavits proffered by the plaintiff to support his contention that although he was born outside the U.S., he was entitled to derivative U.S. citizenship because his mother had been a citizen by birth and had lived over a year in this country. Without this evidence, the plaintiff could not prevail in his declaratory judgment action.
In appealing the grant of summary judgment, the plaintiff contended that the proffered affidavit evidence should have been admitted under two exceptions to the hearsay rule, as outlined in the table below:
|Factor||FRE 804(b)(4) - |
Statement of Personal or Family History.
|FRE 803(19) - |
Reputation Concerning Personal or Family History.
|Rule's Effect:|| Exempts from hearsay rule statements of:
|| Exempts from the hearsay rule statements concerning a
|Declarant Status||Declarant must be unavailable||Declarant's availability is immaterial|
|Justification||Certain categories of statements are “‘free enough from the risk of inaccuracy and untrustworthiness'“ so as to be admitted||Certain statements are:
|Applicable Test:||“the test of cross-examination would be of marginal utility.” Idaho v. Wright, 497 U.S. 805, 819–20 (1990)||Does statement concern a “reputation among a person's family by blood, adoption, or marriage—or among a person's associates or in the community— concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.”|
|Evidence Proffered In Case||Diamond's sworn statement—“[w]hen I was between one year old and two years old, I moved to St. Vincent and the Grenadines”—does not relate to her “birth, adoption, legitimacy, ancestry, marriage, divorce, [or] relationship by blood, adoption, or marriage.”||Statements of Diamond's family members and friend; statements of Diamond's family members and friend, concerning Diamond's precise age at relocation|
Despite the differing requirements of the two rules, the circuit's application to the situation in Porter seemed rather straight-forward. It seemed to come down to a finding that the alleged statement was not reliable under FRE 803(19) or FRE 804(b)3). In the circuit's final analysis of he evidence
The affidavit fails satisfactorily to explain how the precise date of relocation was sufficiently significant or interesting or unusual such that it ever became—much less remained for more than eighty years—a subject of presumptively accurate family lore. The affidavit was offered not simply to prove that Diamond left the United States at an early age. The affidavit was offered to prove many years after the event a very narrow range of dates for her travel—a range about which she, because of her age, lacked personal knowledge. We do not believe that family members would ordinarily be so interested in Mary's exact age at relocation as to afford Diamond's imprecisely described but definitely bounded statement the level of inherent reliability required by Rule 804. In other words, although a change in one's country of residence or in one's citizenship might, like the date of one's birth, death, or marriage, be a matter of interest within a family, the district court was properly skeptical that generalized discussions of family history would include statements of age so precise as to foreclose the possibility that Mary was eleven months old but allow the possibility that she was thirteen months old at the time of her relocation, especially when, insofar as the record reflects, nothing appears to have turned on that precise date for the intervening several decades prior to Porter's pursuit of derivative citizenship status. Accordingly, we find no abuse of discretion in the district court's decision to exclude Diamond's affidavit.Porter, __ F.3d at __.
As noted above, there are not many cases that have cited these two rules dealing with "personal or family history." The Porter case is unusual not only in that it deals with the treatment and receipt of evidence, but it also contrasts the foundational factors that must be found in order to employ the rules.
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