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Bad Faith" Under the Exceptions to the Hearsay Rule

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Bad Faith University of Miami Law Review Volume 48 Number 2 Special Topics in the Law of Evidence Article 11 11-1-1993 The Meaning of "Bad Faith" Under the Exceptions to the Hearsay Rule Peter F. Valori Follow this and additional works at: https://repository.law.miami.edu/umlr Part of the Evidence Commons Recommended Citation Peter F. Valori, The Meaning of "Bad Faith" Under the Exceptions to the Hearsay Rule, 48 U. Miami L. Rev. 481 (1993) Available at: https://repository.law.miami.edu/umlr/vol48/iss2/11 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. The Meaning of "Bad Faith" Under the Exceptions to the Hearsay Rule I. INTRODUCTION ......................................................... 481 II. RULE 803(6) AND LACK OF TRUSTWORTHINESS .................................... 483 A. Procedural Aspects of Exclusion Analysis Under Rule 803(6) ............. 485 B. Exclusion of Legal Documents Under Rule 803(6) ....................... 487 C. Exclusion of Other Documents Based on Relationship and Purpose ........ 488 III. RULE 803(8) AND LACK OF TRUSTWORTHINESS .................................... 490 A. Documents Created in Anticipation of Litigation Excluded Under Rule 803(8) ....................................................... 491 B. Exclusion of Politically Motivated Documents ........................... 492 IV. "BAD FAITH" UNDER THE EXCITED UTTERANCE EXCEPTION ....................... 494 V. HEARSAY STATEMENTS UNDER RULE 803(3) ................................ 497 A. Applying "Bad Faith" as a Component of Relevancy Under R ule 403 .......................................................... 498 B. Exclusion of Self-Serving Statements Under Ponticelli and Its Progeny ...... 499 1. THE PONT/CELL! CASE-THE THREE PRONG TEST-A CRACK IN THE DAM .. 500 2. PONT/CELL! USED IN EVALUATING OTHER ORAL STATEMENTS .............. 500 3. WRITTEN DOCUMENTS EXCLUDED UNDER POAN/CELL! ....................... 501 4. PON/CELL! EXPANDED INTO THE CIVIL CONTEXT ........................... 502 5. THE DIFFICULTIES IN APPLYING THE PONTICELL TEST CONSISTENTLY ...... 503 VI. THE PROBLEM WITH "BAD FAITH" ANALYSIS IN OUR SYSTEM OF JUSTICE ....... 505 VII. RESOLVING THE "BAD FAITH" DILEMMA ................................... 506 V III. CONCLUSION . .......................................................... 508 I. INTRODUCTION " Arnold's panicked hand quickly dials "911," he exclaims "Oh my God! Brenda is after me with a gun" and then hangs up. When the police arrive, Brenda is dead. The police charge Arnold with murder and he pleads self defense. Arnold's statement constitutes hearsay because it is "a statement, other than one made by the declarant while testifying at the trial or hear- ing, offered in evidence to prove the truth of the matter asserted."' Hearsay statements are inadmissible2 unless they fall under an exception or exemption to the hearsay rule At trial, Arnold's attorney seeks to have the above statement admitted in evidence under the excited utter- 1. FED. R. EVID. 801(c). 2. Federal Rule of Evidence 802 provides that hearsay is not admissible except as provided by the rules of evidence. 3. Rules 801, 803 and 804 provide numerous exceptions to and exemptions from the hearsay rule. UNIVERSITY OF MIAMI LAW REVIEW [Vol. 48:481 ance 4 or then existing state of mind 5 exceptions to the hearsay rule. The prosecutor's principal contention for inadmissibility is that the statement lacks trustworthiness because Arnold had a motive to fabricate the statement. Unlike other hearsay exceptions, such as those concerning business records and public records, Rule 803(3) contains no provision for a judge to exclude hearsay statements based on lack of trustworthiness.6 Rule 803(3) constitutes an exception from the rule against hearsay state- ments of present mental or emotional states of mind. The Model Code's 7 provision for mental or emotional states of mind, on which the Federal Rules of Evidence are based, does permit the denial of admissi- bility based on a lack of trustworthiness or "bad faith."' 8 Although the Federal Rules of Evidence are based on the Model Code, the Advisory Committee, in drafting Rule 803(3), purposefully omitted the "bad faith" provision because it believed that "good or bad faith essentially bears upon credibility and is a matter for the jury., 9 A conflict exists in the federal courts over whether Rule 803(3) may be used to exclude self-serving statements. At least one court has used Rule 403 to exclude "bad faith" statements.10 Others use a three- prong test, which includes a "bad faith" component, when applying Rule 803(3).1 Still other courts refuse to allow exclusion simply because after the application of Rule 803(3) the judge does not believe the 2 weighed as declarant.1 These courts allow "bad faith" statements to be 4 a matter of credibility 3 by the jury in its fact-finding deliberations.' This comment contends that statements like Arnold's should 4. Federal Rule of Evidence 803(2) and similar state rules of evidence except excited utterances from the rule against hearsay. See infra notes 95-120 and accompanying text. 5. A then existing state of mind is excepted from the rule against hearsay under Federal Rule of Evidence 803(3) and similar state rules. See infra notes 121-208 and accompanying text. 6. 4 WEINSTEIN & BERGER, WEINSTEIN's EVIDENCE 803(3)[1], at 803-105 (1992). The hearsay exceptions for business records and public records, however, explicitly include a provision for lack of trustworthiness. FED. R. EVID. 803(6), (7) & (8). 7. The American Law Institute promulgated The Model Code of Evidence on May 15, 1942. Some of the most distinguished legal scholars including John H. Wigmore, acting as chief consultant, offered guidance to the American Law Institute in its endeavor. 8. 2 WEINSTEIN & BERGER, supra note 6 803(3)[04], at 803-121. The terms "lack of trustworthiness" and "bad faith" have the same meaning and are used interchangeably throughout this comment. 9. Id. 10. United States v. Miller, 874 F.2d 1255, 1265 (9th Cir. 1989). 11. See infra text accompanying notes 142-193. 12. See infra text accompanying notes 201-207. 13. The fact that the statement was made in "bad faith" may be brought out by cross- examination of the in-court witness, by examination of a witness who has personal knowledge of the "bad faith," or by counsel in his opening or closing arguments. 14. See infra text accompanying notes 201-207. 1993] BAD FAITH always be admitted and weighed by the jury in its fact-finding delibera- tions. In evaluating Rules 803(6) and 803(8), this comment will demon- strate how "bad faith" has been used in the business and public records context. Next, this comment probes the excited utterance and present state of mind exceptions to the hearsay rule to determine: (1) the possi- ble origins of "bad faith" analysis; (2) the factual situations in which courts have used "bad faith" analysis; (3) what conduct constitutes "bad faith" categorically; (4) the difficulties in applying "bad faith" analysis even when a hearsay exception has strong policy considerations; and (5) possible solutions that would further the interests of judicial integrity, uniformity, and consistency in the decision making process. This Comment focuses on Rule 803(3) to demonstrate that without the subterfuge of application of underlying policy considerations which allow "bad faith" analysis to take place under the guise of the applica- tion of legitimate policy concerns textually described in the rules, "bad faith" analysis becomes clearly improper. This covert "bad faith" analy- sis is most clearly demonstrated when the strong policy considerations of Rule 803(2) are extended to Rule 803(3) in the application of the three-prong Ponticelli test discussed infra. Several states have amended Rule 803(3) when adopting it to include a "bad faith" provision to avoid confusion over whether trial courts have discretion to exclude statements based on "bad faith". 5 In the absence of such an amendment, however, courts should give effect to the plain meaning of Rule 803(3).16 II. RULE 803(6) AND LACK OF TRUSTWORTHINESS Counsel may examine an in-court witness testifying regarding first hand knowledge on each of four factors: (1) perception, (2) recordation and recollection, (3) narration, and (4) sincerity. 7 When the in-court witness is testifying to an out-of-court statement, however, the risks are doubled.'I First, the declarant must perceive an event, record and recol- lect it, and narrate it with sincerity. Next, the in-court witness must do the same, except the event that he perceives is the declarant's state- ment.19 Sometimes the declarant is the in-court witness. If, however, 15. See FLA. STAT. ch. 90.803(3) (1992); KAN. STAT ANN. § 60-460(I) (1992); CAL. EVID. CODE § 1252 (West 1993). 16. NORMAN J. SINGER, SUTHERLAND STAT. CONST. § 46.01 (5th ed. 1992). 17. MICHAEL H. GRAHAM, HANDBOOK OF FEDERAL EVIDENCE § 801.1, 704 (3rd ed. 1991). But see 2 KENNETH S. BROWN ET AL., MCCORMICK ON EVIDENCE § 245 (4th ed. 1992) (stating that sincerity is only one aspect of the other three elements). 18. For a simplified pictorial explanation of the risks of hearsay statements, see MICHAEL H. GRAHAM, EVIDENCE: TEXT, RULES, ILLUSTRATIONS AND PROBLEMS 64 (Rev. 2d ed. 1989). 19. At the outset, any finding that an in court declarant is exhibiting "bad faith", and therefore the statement itself is inadmissible, must be rejected. In In re Marriage of L.R., 559 N.E.2d 779 (Ill. App. Ct. 1990), appeal denied, 567 N.E.2d 333 (Ill. 1991), a mother accused a father of UNIVERSITY OF MIAMI LAW REVIEW [Vol. 48:481 the declarant is unavailable, opposing counsel will not have the opportu- nity to cross-examine the declarant on the four factors.
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