hearsay rule in District of Columbia

2005In Nicholson v. United States, 368 A.2d 561, 564 (D.C.1977), the court stated that the [e]lements necessary to justify the exception to the hearsay rule include (1) the presence of a serious occurrence which causes a state of nervous excitement or physical shock in the declarant, (2) a declaration made within a reasonably short period of time after the occur *217 rence so as to assure that the declarant has not reflected upon his statement or premeditated or constructed it, and (3) the presence of circumstances, which in their totality suggest spontaneity and sincerity of the remark.

1993There are, however, three requirements for admission of an out-of-court statement under this exception to the hearsay rule: (1) the occurrence of a startling event which causes a state of nervous excitement or physical shock in the declarant, (2) a declaration made within a reasonably short period of time after the occurrence so as to assure that the declarant did not reflect upon the event and possibly fabricate [or premeditate] a statement, and (3) circumstances, which in their totality suggest spontaneity and sincerity of the remark. *47 Id. at 1226 (quotations omitted); accord Alston v. Un

2014Therefore, in adopting a hearsay exception for declarations against penal interest, we preferred the approach of the federal rule because “it not only abolishes the doctrine that totally bars declarations against penal interest from evidence, but also assures that proffered declarations against penal interest contain those indicia of reliability that are consistent with the rationale behind other hearsay exceptions.” Id. at 199 .

2014Therefore, in adopting a hearsay exception for declarations against penal interest, we preferred the approach of the federal rule because “it not only abolishes the doctrine that totally bars declarations against penal interest from 7 evidence, but also assures that proffered declarations against penal interest contain those indicia of reliability that are consistent with the rationale behind other hearsay exceptions.” Id. at 199 .

2017See Galindo v. United States, 630 A.2d 202, 210 (D.C. 1993) (―Under the medical diagnosis exception to the hearsay rule, statements made by a patient for purposes of obtaining medical treatment are admissible for their truth . . . .‖).

2017See Galindo v. United States, 630 A.2d 202, 210 (D.C. 1993) ("Under the medical diagnosis exception to the hearsay rule, statements made by a patient for purposes of obtaining medical treatment are admissible for their truth .... ”).

2011“The prior identification exception to the hearsay rule allows the admission of out-of-court statements through the testimony of either the identifier or a third party who was present when the identification was made.” (Larry) Brown, supra, 840 A.2d at 88 (citing Morris v. United States, 398 A.2d 333, 336 (D.C.1978); Clemons v. United States, 133 U.S.App.

2003The government argues that the notation of the telephone number is admissible under the identification exception to the hearsay rule. 15 See Morris v. United States, 398 A.2d 333, 338 (D.C.1978).

2018See Dutch v. United States , 997 A.2d 685 , 689 (D.C. 2010) ("We review a trial court's decision to admit hearsay evidence for abuse of discretion; however, the determination of whether a statement falls under an exception to the hearsay rule is a legal conclusion, which we review de novo .") (citing Brown v. United States , 840 A.2d 82 , 88 (D.C. 2004) ).

2015Sparks v. United States, 755 A.2d 394, 399 (D.C. 2000) (citing United States v. Owens, 484 U.S. 554 (1988)). ―Section 14-102 (b)(3) plainly states that a prior statement regarding an identification of a person made after perceiving the person constitutes substantive evidence.‖ Id. ―The prior identification exception to the hearsay rule allows the admission of out-of-court statements through the testimony of either the identifier or a third party who was present when the identification was made.‖ Brown v. United States, 840 A.2d 82, 88 (D.C. 2004). ―[H]earsay declarants must have personal knowl

2008The trial judge concluded that the statements were admissible as statements against Jones’ penal interest, were therefore reliable, and as such, "we allow [them] ... irrespective of lack [of] confrontation.” See Akins v. United States, 679 A.2d 1017, 1030 (D.C.1996) (noting, based on Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), that the "Confrontation Clause is only violated by the admission of incriminating evidence under a hearsay exception that is neither firmly-rooted nor reliability-based.”).

2008The trial judge concluded that the statements were admissible as statements against Jones’ penal interest, were therefore reliable, and as such, "we allow [them] ... irrespective of lack [of] confrontation.” See Akins v. United States, 679 A.2d 1017, 1030 (D.C.1996) (noting, based on Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), that the "Confrontation Clause is only violated by the admission of incriminating evidence under a hearsay exception that is neither firmly-rooted nor reliability-based.”).

2009Because “the exercise of that discretion must ‘be founded upon correct legal principles,”’ Bell, supra, 801 A.2d at 125 (citations omitted), however, “[w]hether or not a particular hearsay exception applies to certain statements is a question of law which we review de novo.” Dyson, supra, 848 A.2d at 611 . “[T]he state of mind exception to the hearsay rule allows the admission of extrajudicial statements to show the state of mind of the declarant ... if that is at issue in the case.” Clark v. United States, 412 A.2d 21, 25 (D.C.1980).

2009Such expressions are admissible under the 'state of mind’ exception to the hearsay rule.”); Clark v. United States, 412 A.2d 21, 29 (D.C.1980) ("It is well-settled that the declar-ant’s statement of future intent to perform an act is admissible to show that the declarant did perform the act, if the performance of the act is at issue.”). .

1982Furthermore, the testimony is not otherwise admissible under the exception to the hearsay rule for prior recorded testimony, see Alston v. United States, D.C.App., 383 A.2d 307, 315 (1978), for, as the trial court found, appellant failed to show that Cooper was unavailable.

1982Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531, 2539 , 65 L.Ed.2d 597 (1980); see Warren v. United States, D.C.App., 436 A.2d 821, 825 (1981): The common law of this jurisdiction recognizes that prior recorded testimony is admitted into evidence as an exception to the hearsay rule when (1) the direct testimony of the declar-ant is unavailable, (2) the former testimony was given under oath or affirmation in a legal proceeding, (3) the issues in the two proceedings were substantially the same, and (4) the party against whom the testimony now is offered had the opportunity to cross-examine the

1991“The state of mind exception to the hearsay rule allows the admission of extrajudicial statements to show the state of mind of the declarant ... if that is at issue in the case.” Rink v. United States, 388 A.2d 52, 57 (D.C.1978) (quoting United States v. Brown, 160 U.S.App.D.C. 190, 194 , 490 F.2d 758, 762 (1973)); see also Clark v. United States, 412 A.2d 21, 25 (D.C.1980).

1991“The state of mind exception to the hearsay rule allows the admission of extrajudicial statements to show the state of mind of the declarant ... if that is at issue in the case.” Rink v. United States, 388 A.2d 52, 57 (D.C.1978) (quoting United States v. Brown, 160 U.S.App.D.C. 190, 194 , 490 F.2d 758, 762 (1973)); see also Clark v. United States, 412 A.2d 21, 25 (D.C.1980).

2005As to the extent to which description of the crime may be admitted as part of a statement of identification, compare Williams v. United States, 756 A.2d 380, 387 (D.C.2000) (quoting Battle v. United States, 630 A.2d 211, 215 (D.C.1993) ("|T]estimony • recounting the details of the [declarant’s descriptions of the offense would not be admissible under the prior identification exception”)), Sherrod v. United States, 478 A.2d 644, 660 (D.C.1984) (noting that the declarant's statements made while identifying a suspect from a photo array lay outside the prior identification exception to the hearsay

1996We also held, however, that those portions of the “testimony consisting solely of descriptions or identifications of the complaining witness’ assailants are admissible as substantive evidence under the hearsay exception for prior description testimony....” Id. at 837 .

2018See, e.g., Chaabi v. United States, 544 A.2d 1247, 1248 (D.C. 1988) (“The basis for allowing an admission into evidence is the ability of the party to rebut the testimony, thereby avoiding the danger prevented by the hearsay rule, that is, the inability to cross- examine an out-of-court assertion.”) (citation and internal quotation marks omitted). 83 D.

2018See, e.g., Chaabi v. United States, 544 A.2d 1247, 1248 (D.C. 1988) ("The basis for allowing an admission into evidence is the ability of the party to rebut the testimony, thereby avoiding the danger prevented by the hearsay rule, that is, the inability to cross-examine an out-of-court assertion.”) (citation and internal quotation marks omitted). .

1992In overruling appellant’s objection to the mother’s testimony, the trial court considered two theories for which a prior consistent statement would be permitted: (1) the exception to the hearsay rule for prior identification that this jurisdiction adopted in Clemons v. United States, 133 U.S.App.D.C. 27 , 408 F.2d 1230 (1968) (en banc), cert. denied, 394 U.S. 964 , 89 S.Ct. 1318 , 22 L.Ed.2d 567 (1969), and (2) the exception “where there is a charge of recent fabrication.” Sweat v. United States, 540 A.2d 460, 462 (D.C.1988) (quoting Reed v. United States, 452 A.2d 1173, 1180 (D.C.1982), cert.

1992In overruling appellant’s objection to the mother’s testimony, the trial court considered two theories for which a prior consistent statement would be permitted: (1) the exception to the hearsay rule for prior identification that this jurisdiction adopted in Clemons v. United States, 133 U.S.App.D.C. 27 , 408 F.2d 1230 (1968) (en banc), cert. denied, 394 U.S. 964 , 89 S.Ct. 1318 , 22 L.Ed.2d 567 (1969), and (2) the exception “where there is a charge of recent fabrication.” Sweat v. United States, 540 A.2d 460, 462 (D.C.1988) (quoting Reed v. United States, 452 A.2d 1173, 1180 (D.C.1982), cert.

2026“To the extent the application of a particular hearsay exception turns on a finding of fact, ‘we review the finding for clear error,’” but “‘whether the trial court adhere[d] to the [appropriate] test for the admission of hearsay’ under any given exception ‘is a legal question’ that we effectively review de novo.” Id. at 914 (quoting Mayhand v. United States, 127 A.3d 1198, 1205 (D.C. 2015)).

2026See, e.g., Sims, 14 213 A.3d at 1266-67 (to qualify as present sense impression, statement must reflect contemporaneity, spontaneity, and personal knowledge); Mayhand, 127 A.3d at 1209 n.13 (“Both the hearsay exception for present sense impressions and excited utterances require a showing of spontaneity . . . .”); Gardner v. United States, 898 A.2d 367, 374 (D.C. 2006) (“Statements sought to be admitted under the present sense impression exception to this general rule must have been made spontaneously and contemporaneously with the events described.”) (citation modified); Hallums, 841 A.2d at

2008The trial judge concluded that the statements were admissible as statements against Jones’ penal interest, were therefore reliable, and as such, "we allow [them] ... irrespective of lack [of] confrontation.” See Akins v. United States, 679 A.2d 1017, 1030 (D.C.1996) (noting, based on Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), that the "Confrontation Clause is only violated by the admission of incriminating evidence under a hearsay exception that is neither firmly-rooted nor reliability-based.”).

2005Crawford did not alter the application of Roberts to non-testimonial statements; therefore, we accept the continued viability of Roberts to such statements. 30 Post-Crawford, at least for non-testimonial hearsay, “[t]he Confrontation Clause is only violated by the admission of incriminating evidence under a hearsay exception that is neither firmly-rooted nor reliability-based.” Akins, supra, 679 A.2d at 1030 (citing Roberts, 448 U.S. at 66 & n. 9, 100 S.Ct. 2531 ).

2023We review the admissibility of evidence for abuse of discretion, but the underlying question of “[w]hether or not a particular hearsay exception applies to certain statements is a question of law which we review de novo.” In re L.C., 41 A.3d 1261 , 1263 (D.C. 2012) (quoting Dyson v. United States, 848 A.2d 603, 611 (D.C. 2004)).

2012Whether or not a particular hearsay exception applies to certain statements is a question of law which we review de novo. " Dyson v. United States, 848 A.2d 603, 611 (D.C.2004) (citation omitted) (internal quotation marks omitted).

2009Smith v. United States, 666 A.2d 1216, 1221 (D.C.1995). ‘What constitutes a spontaneous utterance depends on the facts peculiar to each case, and such utterance is admitted in the exercise of sound judicial discretion which is not disturbed on appeal unless clearly erroneous.” Lewis v. United States, 938 A.2d 771, 775 (D.C.2007).

2007See Smith v. United States, 666 A.2d 1216, 1222 (D.C.1995) (quoting Nicholson v. United States, 368 A.2d 561, 564 (D.C.1977)). 6 “Whether a statement constitutes a spontaneous utterance depends upon the particular facts of each case, and its admissibility as such is committed to the sound discretion of the court.” Id. (citations omitted).

2004In addition, “statements attributed to the victim seeking medical treatment relating to the ‘psychological and emotional consequences’ of the abuse, as well as the physical injuries, may also be admitted under the medical diagnosis and treatment exception to the hearsay rule.” Jones, 813 A.2d at 227 (citation omitted).

2003LEXIS 220 (statement made by a child to a doctor at Children’s Hospital after abuse by a family member admitted under the treatment exception to the hearsay rule); Jones v. United States, 813 A.2d 220, 226 (D.C.2002) (" 'Under the medical diagnosis exception to the hearsay rule, statements made by a patient for purposes of obtaining medical treatment are admissible for their truth because the law is willing to assume that a declarant seeking medical help will speak truthfully to medical personnel.' ") (quoting Galindo v. United States, 630 A.2d 202, 210 (D.C.1993)). .

2019One exception to the hearsay rule is a statement made against penal interest, which "at the time of its making ... so far tended to subject the declarant to ... criminal liability ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Thomas , 978 A.2d at 1227 (quoting Fed.

2018Legal Principles The rationale behind the statement against penal interest exception to the hearsay rule is that “reasonable people usually do not make statements against them penal interest unless the statements are true, [and thus,] the statements are reliable ... insofar as they genuinely increase the declarant’s exposure to criminal sanction.” Thomas v. United States, 978 A.2d 1211, 1227 (D.C. 2009) (footnote omitted). “[T]o ascertain whether a proffered statement is admissible under the penal interest exception, the trial court must undertake a'three-step factual analysis.” Id. at 1227-28

2015Sparks v. United States, 755 A.2d 394, 399 (D.C. 2000) (citing United States v. Owens, 484 U.S. 554 (1988)). ―Section 14-102 (b)(3) plainly states that a prior statement regarding an identification of a person made after perceiving the person constitutes substantive evidence.‖ Id. ―The prior identification exception to the hearsay rule allows the admission of out-of-court statements through the testimony of either the identifier or a third party who was present when the identification was made.‖ Brown v. United States, 840 A.2d 82, 88 (D.C. 2004). ―[H]earsay declarants must have personal knowl

2013Moreover, we held, the adjectives used to describe the declarant’s state of mind — “upset,” “excited,” “shaken,” “afraid” — “do not establish, or even significantly address, the element of spontaneity on which the theo ry of this hearsay exception is based.” Id. at 781 .

2004Feaster v. United States, 631 A.2d 400, 405 (D.C.1993) (internal citations omitted).

2003She’s here .... [T]his is a classic refreshing of recollection, past recorded recollection type situation.” The government then read excerpts from Ms. Dews’ June 17, 1994, trial testimony establishing that she recognized Mr. Isler as soon as she saw him on the night of the shooting, described what he was wearing, and that he shot Mr. Brown about twelve times but she did not “know how many times he hit him.” 2 ANALYSIS Citing Feaster v. United States, 631 A.2d 400 (D.C.1993) and Alston v. United States, 383 A.2d 307 (D.C.1978), Me.

1995It remains unclear in our jurisdiction whether the statement should be characterized as an admission and thus admissible as non-hearsay, see, e.g., Butler v. United States, 481 A.2d 431 , 439 *874 (D.C.1984) (coconspirator admissions) cert. denied, 470 U.S. 1029 , 105 S.Ct. 1398 , 84 L.Ed.2d 786 (1985), or the statement wotdd have been admissible under an exception to the hearsay rule, see, e.g., Pratt v. District of Columbia, 407 A.2d 612, 616 (D.C.1979) (agency admissions).

1986The co-conspirator exception to the hearsay rule is applicable even though no conspiracy has been charged, so long as the evidence shows, independently of the statements, that “two or more defendants were joint participators in the commission of substantive offenses.” Id.; see Butler, supra; United States v. Rogers, 652 F.2d 972, 976 (10th Cir.1981); United States v. Robinson, 651 F.2d 1188, 1195-1196 (6th Cir.), cert. denied, 454 U.S. 875 , 102 S.Ct. 351 , 70 L.Ed.2d 183 (1981).

2009To support this argument, K.R. cites Goldsberry v. United States, 598 A.2d 376 (D.C.1991), which describes the requirements of the public records exception.

1999Compare Giles v. District of Columbia, supra, 548 A.2d at 53 (noting, in the context of admissibility of chemist’s report under D.C.Code § 33-556, that the “key to admissibility of a business record as an exception to the hearsay rule, therefore, is the foundation provided by the testimony of someone in a position to verify ‘that the records were maintained in the regular course of ... business operations.’ ” ) (quoting Martini Hairdressers, Inc., v. Potomac Beauty Supply Co., 203 A.2d 200, 201 (D.C.1964)), with Goldsberry v. United States, 598 A.2d 376, 378 (D.C.1991) (noting with respect to

2006The court stated that “[wjhile the time element is not controlling, it is of great significance.” Id. (emphasis added). “[W]hen the utterance is made immediately ... or a few minutes after the [disturbing] incident, the declarations can properly be accepted under this hearsay exception.” Id. (citations omitted).

2006The court stated that “[wjhile the time element is not controlling, it is of great significance.” Id. (emphasis added). “[W]hen the utterance is made immediately ... or a few minutes after the [disturbing] incident, the declarations can properly be accepted under this hearsay exception.” Id. (citations omitted).

1998We recognize as binding on us the holding of the United States Supreme Court in White v. Illinois, 502 U.S. 346 , 112 S.Ct. 736 , 116 *505 L.Ed.2d 848 (1992) that no showing of a declarant’s unavailability for trial is required under the Confrontation Clause of the Sixth Amendment to the Constitution of the United States before a declarant’s spontaneous utterance may be admitted into evidence as an exception to the hearsay rule.

1998We recognize as binding on us the holding of the United States Supreme Court in White v. Illinois, 502 U.S. 346 , 112 S.Ct. 736 , 116 *505 L.Ed.2d 848 (1992) that no showing of a declarant’s unavailability for trial is required under the Confrontation Clause of the Sixth Amendment to the Constitution of the United States before a declarant’s spontaneous utterance may be admitted into evidence as an exception to the hearsay rule.

2008Battle v. United States, 630 A.2d 211 (D.C.1993), discusses the "report of rape” exception to the hearsay rule. 6 .

2005We conclude that the admission of this evidence violated the Confrontation Clause, Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), as well as the hearsay rule; cf. Battle v. United States, 630 A.2d 211, 214-15 (D.C.1993) (rejecting admission of statements inculpating defendant under an "origin of the investigation rationale”).