Judge Smith
Judge Smith (NYLJ/Rick Kopstein)

When Associate Judge Robert S. Smith of the New York Court of Appeals retires at the end of 2014, the court will lose a truly independent voice. This article explores how Smith sought to re-imagine New York’s sometimes arcane approach to hearsay.

In his partial concurrence in People v. Rosario, Smith advocated broadening the “prompt outcry” rule. As the majority explained, a sexual assault victim’s timely report of the incident is admissible because a jury may question a victim’s veracity if it does not hear that she promptly reported the attack.

Smith remarked that this “19th century rule” has “become obsolete” since “delayed reporting” by rape victims (especially children) is understandable. Because even delayed reports are often “powerful evidence that shows that [the victims] are telling the truth,” he would dispense with the promptness requirement and “permit[] the jury to know of any disclosure made by the victim about the crime before the crime was reported to the authorities.”

Smith acknowledged that “an untrustworthy statement is not made more trustworthy by repetition.” Nevertheless, “jurors are smart enough” to recognize this fact, “and thus in most cases so-called ‘bolstering’ testimony does little harm.” Whether a victim reported the event, however, is a question that still lingers in jurors’ minds, and “anyone interested in the truth will want to know what the answer is.”

In conclusion, Smith proposed the following rule: “When a victim testifies to an act of rape or sexual abuse, every disclosure of the alleged crime made by the victim before it was reported to the authorities should be admissible, subject of course to a trial court’s normal power to exclude evidence that is repetitive, unnecessarily inflammatory or otherwise prejudicial.”

A similar issue was presented in People v. Smith, in which the court held that a police officer may testify to a victim’s prior description of a perpetrator.

As Smith explained in his majority opinion: (i) any hearsay problem is lessened because the declarant is a trial witness; (ii) under People v. Huertas, a witness can testify to her description given shortly after the incident to allow the jury to evaluate her ability to observe at the time of the offense; and (iii) “[a] statement that is not hearsay when the declarant testifies to it does not become hearsay when someone else does so.” In other words, if a witness can recount his prior description of the assailant, then a police officer may testify about that statement as well.

Refreshed Recollection

People v. Oddone, authored by Smith, is the rare case where an appellate court reverses a manslaughter conviction based on a refreshed recollection error. A key issue at trial was how long the defendant held the victim in a headlock. When a defense witness unexpectedly testified that it “could have been a minute or so,” the defendant sought to refresh her recollection with her prior statement that it was, in fact, “maybe 6 to 10 seconds.” The trial court sustained an objection since the witness had “given no indication that she needs her memory refreshed.”

Smith observed that when a witness says that a year-old event “could have” lasted “a minute or so,” she may be aided by seeing her prior statement. More importantly, it was “simply unfair to let the jury hear the ‘a minute or so’ testimony . . . while allowing the defense to make no use at all of an earlier, much more favorable, answer to the same question.”

Smith also commented on a resilient vestige of New York evidence, namely the prohibition on impeaching one’s own witness. The trial court believed that defense counsel was attempting to do precisely this, but, Smith correctly observed, “counsel had not yet got to the point of impeachment, she only wanted to refresh the witness’s recollection.” Defense attorneys should take note of the following sentence in the opinion: “[I]n any event, technical limitations on the impeachment of witnesses must sometimes give way, in a criminal case, to a defendant’s right to a fair trial.”

Double Hearsay

In People v. Ortega, Smith concurred that hospital records containing crime victims’ statements were admissible. Whereas the majority relied solely on the business records exception, Smith aptly pointed out that “hospital records . . . present a ‘hearsay within hearsay’ problem” because they contain the embedded statement of the victim reporting the injury. For the record to be admissible, the victim’s report must fit within the hearsay exception for medical diagnosis or treatment.

For Smith, a “broad understanding of what is relevant to diagnosis and treatment will . . . make quite a lot of hearsay evidence admissible.” Indeed, “when a patient has a mental health problem, it may often be true that almost any statement about his or her history will be within the hearsay exception.” A justification for this conclusion, and a thread he weaves though the fabric of his hearsay jurisprudence, is the victim’s general availability for cross-examination. Thus, “[t]hese cases do not present the harder problem that will arise when the out-of-court statement was made by a person who does not testify at trial,” a problem “best to leave for another day.”

Judge Posner

Smith’s approach to hearsay evokes the jurisprudence of Seventh Circuit Judge Richard A. Posner, whose recent concurring opinion in United States v. Boyce illuminates his similar, though more radical, take on the hearsay rule.

The Boyce majority held that statements on a 911 tape qualified as present sense impressions and excited utterances. Posner agreed, but opined that “there is profound doubt whether either should be an exception” at all. As to the spontaneity rationale, he bluntly wrote, “I don’t get it,” particularly since courts have allowed up to 23 minutes between observation and reporting. Moreover, “[e]ven real immediacy is not a guarantor of truthfulness.” He posited meeting an acquaintance with “a new dog, a little yappy thing, and he asks me ‘Isn’t he beautiful.’” It takes little reflection to answer “yes” even if one thinks the dog hideous. For him, “[i]t is time the law awakened from its dogmatic slumber” and recognize that “‘[t]he present sense impression’ exception never had any grounding in psychology.”

The justification for the excited utterance rule “is even less convincing.” “Even if a person is so excited by something that he loses capacity for reflection,” he asked, “how can there be any confidence that his unreflected utterance, provoked by excitement, is reliable?” Indeed, most of us “distrust an observation made under emotional stress.” For him, this exception “rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to reconsider ancient dogmas.”

Posner’s solution? FRE 807 (the residual exception) should swallow the specific hearsay exceptions, and admissibility should turn on the statement’s reliability.

Re-thinking Hearsay

Smith is likewise willing to re-think hearsay, but for him the touchstone of admissibility is cross-examination, not reliability. He is thus hard-pressed to exclude the prior statement of a trial witness, but more than willing to reverse when cross-examination is denied or impeded.

This is evident from his concurrence in Matter of Floyd Y, a civil confinement case in which out-of-court statements made to a testifying expert were held inadmissible. Previously, in People v. Goldstein, the court ruled that admission of such statements violated the Confrontation Clause, but it did not reach the hearsay question. Smith explained in Floyd Y: “The basic point of the hearsay rule is that a party to litigation is entitled to test by cross-examination a statement that is presented to the jury as true, and that it is for the jury to decide, having listened to the cross-examination, whether the statement is reliable. To say that hearsay is admissible—i.e., that cross-examination is unnecessary—because a court thinks the statement is reliable is to usurp the functions of the cross-examiner and the fact finder, and to defeat the point of the rule.”

In his 10 years on the bench, Smith may not have overhauled New York’s approach to hearsay, but his keen understanding of the doctrine and his fresh look at its justifications have incrementally moved New York law in a sensible direction.