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Maine Legislature Proceeds With Hearsay Exception For Personal Circumstances.

Maine Legislature Proceeds With Hearsay Exception For Personal Circumstances.

Posted by Ed Folsom

June 5, 2023

This is a follow-up to my previous post (here) regarding Maine LD 765 (2023), formerly titled “An Act to Permit Recordings of a Protected Person to Be Admissible in Evidence.” The bill’s title has been amended to “An Act to Establish an Exception to the Hearsay Rule for Forensic Interviews of a Protected Person.” As in the original, the amended bill expressly allows recorded out-of-court statements of “protected persons” to be admissible in evidence in a trial, as an exception to the hearsay rule, if they are recorded in a “forensic interview” conducted by a “forensic interviewer.” A “protected person” is defined as a person who has not reached age 18 or “an adult who is eligible for protective services pursuant to the Adult Protective Services Act.”

The proposed statute defines a “forensic interview” as “a fact-finding conversation conducted by a forensic interviewer using an evidence-based practice.” A “forensic interviewer” is defined as a person who must be employed by or affiliated with a child advocacy center, must complete at least 32 hours of specialized instruction on an evidence-supported interview protocol, and must participate in ongoing education in the field of child maltreatment or forensic interviewing. In other words, a “forensic interviewer” must be employed by or affiliated with a partisan organization. The forensic interview that this partisan interviewer conducts will be done in anticipation of litigation, with a specific view to admissibility in litigation.

By amendment, the Judiciary Committee has added certain requirements to the original bill. To be admissible under the newly created hearsay exception, statements now must expressly not be made in response to suggestive or leading questions. If more than one forensic interview is conducted, only the statements in one such interview are admissible under the new hearsay exception. In a criminal matter, “the party offering the recording into evidence must call the protected person as a witness immediately following the playing of the recording and the witness must be available for cross-examination, unless all other parties to the case expressly waive this requirement.” And because admissibility now expressly depends on the statement meeting the relevancy and other requirements of the Maine Rules of Evidence, the court must afford all parties an opportunity to be heard, in advance, on a “motion in limine” that must be filed by the litigant seeking to introduce the recording.

What’s wrong with that? You might ask.

Admissibility of evidence at trial is governed by the Maine Rules of Evidence. Those rules are informed by the experience of courts in the U.S. and England over at least the past 200+ years. They contain a general rule against admitting “hearsay” statements, which are out-of-court statements offered in evidence to prove what the statements assert. The underlying principle is that such statements are so unreliable that, as a blanket rule, they simply must not be admitted at a trial to prove what they assert. But there are a number of exceptions, all of which rest on a determination that the circumstances addressed by each exception eliminate the reliability problems that are inherent in hearsay statements generally.

All hearsay exceptions focus solely on the circumstances in which the statements are made – circumstances that do not create the reliability problems inherent in hearsay statements generally. No existing hearsay exception rests admissibility on the personal circumstances of the person who made the hearsay statement. All existing hearsay exceptions treat all makers of hearsay statements the same. If a given person made a statement in the specific circumstances addressed by any of the various exceptions, the hearsay exception applies to the statement, no matter who the person is, what that person’s personal circumstances are, or what group the person belongs to. Otherwise, not.

But LD 765 creates a new type of hearsay exception that (1) does not rest on circumstantial indicia of reliability, and (2) expressly rests admissibility on the personal circumstances of the person making the statement – what group or category the person fits into or doesn’t fit into. As to (1), nobody would ever have previously dared to claim that a statement made to an allied partisan, during an interview conducted to create evidence for trial, is made in circumstances that bear indicia of reliability such that it ought to have its own hearsay exception. In fact, a statement made in anticipation of litigation, elicited through questioning by an allied partisan, with no opportunity for the opposing party to conduct cross-examination at the time of its making would, until now, have been considered among the least reliable of hearsay statements. As to (2), there are very good reasons why hearsay exceptions have not, to this point, rested on whether the person making the statement belongs to a particular group or category.

Is there anything about the fact that hearsay statements are made by a person under age 18 or by an adult eligible for protective services that makes them inherently more reliable than hearsay statements made by everyone else? I’m going out on a limb here — ARE YOU KIDDING ME?! Let’s add that the statements must be elicited by a person employed by an organization that advocates specifically on behalf of abused children, dealing with the topic of alleged abuse, to create evidence that will be used in a trial dealing with that alleged abuse. Does that add to the reliability calculus? But, if the interviewer does a couple of dry runs before the final take, not all the interviews will qualify for the new hearsay exception, so the lawyer introducing the evidence will have to pick one interview instead of being able to use them all. Does that make the final take reliable? No, no and no.

But this bill isn’t about reliability at all. It’s about creating a carveout for particular groups of people; unreliability be damned. If the witness is shaky, play the recording. Then put the witness on the stand and ask: “Was that you we just saw on the video?” Thank you. No further questions.” Then turn the witness over to defense counsel for cross-examination, so defense counsel can be left to appear to beat up on a cowering, sobbing witness who can barely withstand the process. Even better if the prosecutor tells the witness, in advance, that it’s fine to be nervous and scared, and not to hold back if she feels like crying. On the other hand, if the witness is likely to be strong, the prosecutor can just play the video first, then elicit full testimony anyway. LD 765 skews the entire dynamic in favor of the state and against the accused.

There are people out there who say that the judicial system is systemically biased against certain groups of people. You know – the system was created by white males, to shore-up the power of white males, so it contains inherent, systemic biases in favor of white males and against others. People who think along these lines would tell you that although the rules of the game don’t (on the surface) take account of what group a given person belongs to, their systemic effect is to favor some groups over others. So, to achieve equity, the rules must be changed to treat members of some groups differently than others, to even out the disparate systemic effects.

Someone must have decided that the Maine Rules of Evidence and their existing hearsay rules put minors, adults eligible for protective services, and those litigating on their behalf, at a disadvantage. And they must have decided that this systemic disadvantage requires an affirmative action remedy like the one that LD 765 would provide. I guess if you think that the system is systemically stacked, and if you intend to break new remedial ground by basing a new hearsay exception on what systemically disadvantaged group the declarant falls into, you might want to make an end run around the system itself. That could explain why the proponents of this legislation did not present the proposed change to the Advisory Committee on the Rules of Evidence — a group of lawyers and judges who are appointed to review proposed changes to the rules. After all, if the problem is systemic, how can you expect the system to provide the remedy you seek? It’s probably better to go straight to the Legislature and make a sympathy pitch for the group you intend to favor – better than going through a committee that has a systemic bias against court rules that overtly favor one group of people over another; rules that water down, for favored groups, the standard for admissibility of evidence in criminal trials.

Once the precedent is set – once we have a rule that hinges the admissibility of hearsay statements on the personal circumstances of their maker, on what group the person belongs to – the precedent is set. Surely this can’t remain the only rule of evidence that uses group identity as the criterion for correcting systemically inequitable impact for long.

That’s why I’m convinced that LD 765 is slyly subversive.

Sure, it will make it easier to secure criminal convictions:  of the innocent-in-fact right along with the guilty. You’d better hope it isn’t your ox that gets gored.