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Pueblo of Jemez v. United States

United States District Court, D. New Mexico

November 15, 2018

PUEBLO OF JEMEZ, a federally recognized Indian Tribe, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant, and NEW MEXICO GAS COMPANY, Defendant-in-Intervention.

          Randolph H. Barnhouse Kelli J. Keegan Justin J. Solimon Christina S. West Veronique Richardson Dianna Kicking Woman Karl E. Johnson Tierra Marks Michelle T. Miano Barnhouse Keegan Solimon & West LLP Los Ranchos de Albuquerque, New Mexico -and- Thomas E. Luebben, Jr. Law Offices of Thomas E. Luebben Sandia Park, New Mexico Attorneys for the Plaintiff

          Jeffrey Wood Acting Assistant Attorney General Peter K. Dykema Matthew Marinelli Jacqueline M. Leonard Amarveer Brar Kenneth Rooney Kristofor R. Swanson United States Department of Justice Environment & Natural Resources Division Natural Resources Section Washington, D.C. Attorneys for the Defendant United States of America

          Kirk R. Allen Elizabeth Reitzel Miller Stratvert P.A. Albuquerque, New Mexico Attorneys for the Intervenor Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Defendant the United States of America's oral objection to hearsay contained in America Indian oral tradition evidence testimony of Jemez Pueblo member Paul Tosa, and (ii) the Plaintiff Pueblo of Jemez's Memorandum of Law: Native American Oral Traditional Evidence at 1, filed October 29, 2018 (Doc. 320)(“Oral Evidence Memo.”). The Court held a hearing on October 29, 2018. See Trial Transcript -- Day 1 at 1:4-6 (Court)(“Trial Tr.”).[1] The primary issue is whether the Court should admit hearsay statements contained in oral tradition evidence pursuant to the Federal Rules of Evidence, or, in the alternative, pursuant to four hearsay exceptions: (i) rule 803(19), Reputation Concerning Personal or Family History; (ii) rule 803(20), Reputation Concerning Boundaries or General History; (iii) rule 803(21), Reputation Concerning Character; and (iv) rule 807, the Residual Exception. Oral Evidence Memo. at 1-8. The Court concludes that the Federal Rules of Evidence do not permit admission of out-of-court statements contained in American Indian oral tradition evidence when offered for the truth of the matter asserted, because the rule against hearsay prohibits such statements. See Fed.R.Evid. 802 (“Hearsay is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court.”). The Court may adopt oral tradition evidence for non-hearsay purposes, if Jemez Pueblo can establish a non-hearsay purpose, such as background, for why Jemez people believe things, do things, draw or paint things. The Court also will admit hearsay statements in oral tradition evidence for the truth of the matter asserted pursuant to the hearsay exceptions enumerated in rule 803, provided such statements conform to the limited scope of each enumerated exception, as the Federal Rules of Evidence define the exception. See Fed.R.Evid. 803. The Court will not admit hearsay, however, in oral tradition evidence pursuant to rule 807, the residual exception to the rule against hearsay, because the Court concludes that oral tradition evidence is not sufficiently exceptional to warrant admission pursuant to this rule. See Conoco Inc. v. Dep't of Energy, 99 F.3d 387, 392 (Fed. Cir. 1996)(concluding that the residual hearsay exception is “meant to be reserved for exceptional cases, ” and is “not intended to confer ‘a broad license' on trial judges ‘to admit hearsay statements that do not fall within one of the other exceptions contained in rules 803 and 804(b)'” (quoting S. Rep. No. 94-199, at 20 (1975))).

         FACTUAL BACKGROUND

         In 2012, Jemez Pueblo filed suit under the federal common law and the Quiet Title Act, 28 U.S.C. § 2409a (“QTA”), seeking a judgment that Jemez Pueblo “has the exclusive right to use, occupy, and possess the lands of the Valles Caldera National Preserve pursuant to its continuing aboriginal title to such lands.” Complaint to Quiet Title to Aboriginal Indian Land, Prayer for Relief ¶ 1, at 14-15, filed July 20, 2012 (Doc. 1)(“Complaint”). Specifically, Jemez Pueblo alleges aboriginal title to “that certain parcel of land commonly known as Baca Location No. 1 located in Sandoval and Rio Arriba Counties, New Mexico . . . containing 99, 289.39 acres, more or less.” Complaint at 27.

         PROCEDURAL BACKGROUND

         Jemez Pueblo's Valles Caldera claim proceeded to trial beginning on October 29, 2018. See Trial Tr. at 1:4-6 (Court). During the first trial day, Jemez Pueblo elicited oral tradition evidence testimony from Jemez Pueblo Tribal Council member Paul Tosa. See Trial Tr. at 136:25 (Solimon). Tosa provided extensive testimony regarding historical Jemez Pueblo activity in and around the Valles Caldera; for example, Tosa stated that “in the fall it was time to collect [medicinal herbs, ] that's what grandpa told us[, ] that the obsidian valley[, ] the campsite at the entrance to the gate[, ] that's where that big area was . . . .” Trial Tr. at 165:23-166:5 (Tosa). In response to such testimony, the United States raised a hearsay objection, arguing that “the case law is fairly clear [that] oral histories are hearsay[.] [I]t's plain hearsay and doesn't come in if under any exception.” Trial Tr. at 166:10-16 (Dykema)(citing Bonnichsen v. United States, 367 F.3d 864, 881-82 (9th Cir. 2004); Sokaogon Chippewa Cmty. v. Exxon Corp., 2 F.3d 219, 222 (7th Cir. 1993)(Posner, J.)). Specifically, according to the United States, what Tosa learned “at his grandfather's knee” is inadmissible hearsay. Trial Tr. at 167:5-7 (Dykema). Jemez Pueblo responded that oral traditional evidence “has been held admissible in . . . federal Indian law cases including cases within the Tenth [Circuit Court of Appeals].” Trial Tr. at 167:9-12 (Solimon). Moreover, Jemez Pueblo asserts that it is aware of no “case right now that would . . . exclude this type of testimony where we are dealing with a dispute involving things like migration, land use, traditions involving land use.” Trial Tr. at 167:13-16 (Solimon). Jemez Pueblo argued that, “in cases that have considered oral tradition regarding [ancient] migration, sacred landmarks, shrines which have continuing importance in Tribal lifestyles, courts have [consistently] . . . accepted it.” Trial Tr. at 168:2-6 (Solimon)(citing Zuni Tribe of N.M. v. United States, 12 Cl. Ct. 607, 608 (Ct. Cl. 1987)). Jemez Pueblo adds that

the way courts typically accept this evidence is it's to be read in context with other issues that are presented, including objective evidence such as expert witness testimony. In terms of it being hearsay . . . there is a hearsay exception specifically concerning customs affecting lands in a community. That's 803[(20)]. That exception reads reputation in a community arising before the controversy as to boundaries of or customs affecting lands in the community and reputations show events of general history important to the community or state or nation in which it is located.

Trial Tr. at 168:10-21 (Solimon).

         The Court acknowledged that it is “not an expert in [rule] 803[20], ” but expressed skepticism that rule 803(20) would “cover all the history that . . . Mr. Tosa is going to want to testify about. He's not going to testify just about the boundaries, but he's going to talk about something much more extensive.” Trial Tr. at 169:6-9 (Court). The Court then inquired whether the cases that Jemez Pueblo cites address an objection or merely rely on unopposed oral history. Trial Tr. at 169:9-14 (Court). In response, Jemez Pueblo directed the Court to Pueblo De Zia v. United States, 165 Ct. Cl. 501 (1964), in which, according to Jemez Pueblo,

the [Indian Claims Commission] Court was reversed because it did not consider oral history, oral evidence that was not corroborated by written documents. And that was in itself hearsay[.] [W]e haven't found a case indicating that a hearsay objection to oral evidence or oral testimony, [or] Tribal traditions that are passed down orally ha[s] been accepted and sustained to prevent a witness from testifying. I think what courts have done is they've given the appropriate . . . amount of weight based on the other objective evidence in the case.

Trial Tr. at 169:15-170:2 (Solimon)(citing Pueblo De Zia v. United States, 165 Ct. Cl. at 501. The Court reiterated its skepticism that “oral history can pass a hearsay objection” and proposed that the Court will take such evidence subject to making a formal ruling. Trial Tr. at 170:3-11 (Court). The United States assented to the Court's proposal and stated its understanding that the Court of Claims in Pueblo De Zia v. United States held that oral traditional evidence was not necessarily worthless when corroborating evidence supports the oral testimony. See Trial Tr. at 170:12-171:3 (Dykema).

         The Court inquired about the quantity of oral traditional evidence that Jemez Pueblo intends to introduce during trial. See Trial Tr. at 171:7-9 (Court). Jemez Pueblo responded that the Court “will be hearing information about societies that use the Valles Caldera. And part of their testimony will involve oral traditions within those societies.” Trial Tr. at 171:10-13 (Solimon). Moreover, Jemez Pueblo expressed that such oral traditional evidence “provides . . . context to understand . . . the testimony that both sides will be presenting about [how] it is that Jemez people came to this area and why they settled in this area.” Trial Tr. at 171:20-24 (Solimon).

         The Court inquired whether the United States saw any use for oral traditional evidence “other than it being offered for the truth of the matter asserted.” Trial Tr. at 172:23-25 (Court). The United States responded that it is “happy to hear” Jemez Pueblo's migration story, despite relevance concerns, but objects to testimony regarding Jemez Pueblo's Valles Caldera use as learned from Tosa's grandfather, which the United States argues is relevant only for its truth. Trial Tr. at 173:1-13 (Dykema). The Court instructed the United States to object to what the United States considers offensive testimony, and the Court stated that it will likely conclude that it will not consider such testimony for the truth of the matter asserted. See Trial Tr. at 173:14-18 (Court).

         Jemez Pueblo asserted that, because “it's going to . . . cover many witnesses on this exact same issue, ” it had prepared a bench memorandum further delineating its position on the oral traditional evidence issue. Trial Tr. at 173:21-25 (Barnhouse). The Court accepted the bench memorandum and instructed Jemez Pueblo to file its bench memorandum on the docket. See Trial Tr. at 174:2-3 (Court). The United States responded that it would also file a bench memorandum on this issue. See Trial Tr. at 174:4-6 (Dykema). The United States, however, ultimately decided not to file a bench memorandum, see Trial Tr. at 275:6-8 (Dykema), and instead directed the Court to four cases that, according to the United States, discuss the relevancy and admissibility of oral traditional evidence: Pueblo De Zia v. United States; Bonnichsen v. United States, 367 F.3d 864, 881-82 (9th Cir. 2004); Sokaogon Chippewa Community v. Exxon Corp.; and Coos Bay, Lower Umpqua & Siuslaw Indian Tribes v. United States, 87 Ct. Cl. 143 (1938), see Trial Tr. at 275:6-25 (Dykema).

         Jemez Pueblo argues, in its bench memorandum, that oral tradition evidence from lay witnesses is admissible. See Oral Evidence Memo. at 2. Jemez Pueblo asserts that courts have admitted such evidence “with and without considering corroborating evidence” to support factual findings, thereby “essentially ignor[ing] any application of the hearsay rule in their factfinding.” Oral Evidence Memo. at 3. For example, according to Jemez Pueblo, the United States District Court for the Western District of Oklahoma in Comanche Nation v. United States, No. CIV-08-849-D, 2008 WL 4426621 (W.D. Okla. Sept. 23, 2008)(DeGiusti, J.), relied on lay witness testimony, “at times without the specific need for corroborating evidence, ” to establish that a geographic site was sacred to the Comanche Nation. Oral Evidence Memo. at 3 (citing Comanche Nation v. United States, 2008 WL 4426621, at *7 (“Testimony from several members of the Comanche Nation established that the [Medicine] Bluffs remain a sacred site for the Comanche people.”)).

         Jemez Pueblo adds that courts have admitted oral traditional evidence from tribal members who themselves received such evidence from tribal elders. See Oral Evidence Memo. at 3 (citing United States v. Michigan, 471 F.Supp. 192, 219 (W.D. Mich. 1979)(Fox, C.J.)(“The oral testimony of the tribal witnesses educated in the history and customs of their people by tribal elders [was] found to be reasonable and credible factual data regarding certain relevant aspects of Indian life at and after treaty times.”); United States v. Washington, 384 F.Supp. 312, 379 (W.D. Wash. 1974)(Boldt, J.), aff'd, 520 F.2d 676 (9th Cir. 1975)).

         Jemez Pueblo argues that courts also consider lay witness oral traditional evidence “in the context of all other evidence.” Oral Evidence Memo. at 4. According to Jemez Pueblo, the United States Claims Court in Zuni Tribe of New Mexico v. United States stated that it “considered all the evidence including testimony by several expert witnesses, source material relied upon by witnesses and accompanying their written reports, and the documentary evidence, and considered the lay testimony in that context.” Oral Evidence Memo. at 3 (quoting Zuni Tribe of N.M. v. United States, 12 Cl. Ct. at 608). Moreover, according to Jemez Pueblo, the Honorable Edward J. Lodge, United States District Judge for the District of Idaho, held that the Coeur d'Alene Indian Tribe owned the lands in question after considering “oral traditional evidence in conjunction with expert testimony, documentary evidence and scientific studies . . . .” Oral Evidence Memo. at 4 (citing United States v. Idaho, 95 F.Supp.2d 1094, 1101 (D. Idaho 1998)(Lodge, J.)). Similarly, according to Jemez Pueblo, the Honorable Warren K. Urbom, Chief United States District Judge for the District of Nebraska, relied on “the testimony of ‘[m]any traditional Indians'” to assist in his interpretation of an 1868 treaty between the United States and the Sioux people. Oral Evidence Memo. at 4 (citing United States v. Consol. Wounded Knee Cases, 389 F.Supp. 235, 242 (D. Neb. 1975)(Urbom, C.J.)).

         In the alternative, Jemez Pueblo asserts that oral traditional evidence falls within rule 803(20) of the Federal Rule of Evidence, Reputation Concerning Boundaries or General History. See Oral Evidence Memo. at 6. Jemez Pueblo concedes that rule 803(20)'s application “has been limited, ” but nevertheless cites two unpublished cases wherein, according to Jemez Pueblo, federal courts admitted reputation evidence to establish real property boundaries. Oral Evidence Memo. at 4 (citing United States v. Booth, No. 90-5748, 1991 WL 119530, at *5 (6th Cir. July 3, 1991); Ariel Land Owners, Inc. v. Dring, No. 3:CV-01-0294, 2008 WL 189644, at *8 (M.D. Pa. Jan. 18, 2008)(Caputo, J.)). Jemez Pueblo further argues that state courts have applied analogous state hearsay rule exceptions to admit boundary and general history evidence. See Oral Evidence Memo. at 6-7 (citing Sacrison v. Evjene, 398 P.3d 273, 279 (Mont. 2017)(justifying the general reputation exception, because “[i]t is unlikely that a falsehood could become generally accepted in a community as the truth” (quoting Goodover v. Lindey's, Inc., 757 P.2d 1290, 1294 (Mont. 1988)))). Jemez Pueblo also cites to Egli v. Troy, 602 N.W.2d 329 (Iowa 1999), wherein the Supreme Court of Iowa stated that, when reputation evidence regarding “controversies concerning boundaries or customary usage” is “the only evidence available, ” such evidence “is better than no evidence at all” despite being “multiple hearsay.” Oral Evidence Memo. at 7 (quoting Egli v. Troy, 602 N.W.2d at 334).

         Jemez Pueblo further asserts that rule 803(19), Reputation Concerning Personal or Family History, and rule 803(21), Reputation Concerning Character, “also depend on reputations and community knowledge, and apply to oral traditional evidence.” Oral Evidence Memo. at 7-8 (citing Fed.R.Evid. 803(19); Fed.R.Evid. 803(21)). Moreover, according to Jemez Pueblo, rule 807's residual exception to hearsay applies to oral traditional evidence, pursuant to Tenth Circuit caselaw, if the Court “is satisfied that the evidence offers guarantees of trustworthiness and is material, probative and necessary in the interest of justice.” Oral Evidence Memo. at 8-9 (citing United States v. Farley, 992 F.2d 1122, 1126 (10th Cir. 1993)).

         LAW REGARDING HEARSAY

         “Hearsay testimony is generally inadmissible.” United States v. Christy, No. CR 10-1534 JB, 2011 WL 5223024, at *5 (D.N.M. Sept. 21, 2011)(Browning, J.)(citing Fed.R.Evid. 802). Under rule 801(c) of the Federal Rules of Evidence, “hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). Hearsay bars a party from presenting its own statements, such as “a defendant . . . attempt[ing] to introduce an exculpatory statement made at the time of his arrest without subjecting himself to cross-examination.” United States v. Cunningham, 194 F.3d 1186, 1199 (11th Cir. 1999)(Carnes, J.). A statement that is otherwise hearsay, however, may be offered for a permissible purpose other than to prove the truth of the matter asserted, including impeaching a witness. See United States v. Caraway, 534 F.3d 1290, 1299 (10th Cir. 2008)(Hartz, J.)(“We have already explained why the content of the statement, if used substantively, would be inadmissible hearsay. If admitted for impeachment purposes, however, it is not hearsay.”). Rule 805 of the Federal Rules of Evidence recognizes that “[h]earsay within hearsay” -- commonly referred to as double hearsay -- may be admissible “if each part of the combined statements conforms with an exception to the rule.” Fed.R.Evid. 805. See United States v. Edwards, No. CR 16-3068 JB, 2017 WL 4857441, at *16 (D.N.M. Oct. 25, 2017)(Browning, J.).

         1. Rule 803(3).

         One of the hearsay exceptions -- rule 803(3) -- excepts from the general bar on hearsay “[a] statement of the declarant's then existing state of mind [or] emotion.” Fed.R.Evid. 803(3). Rule 803(3) permits the introduction of “hearsay . . ., even though the declarant is available as a witness, ” for a statement of the declarant's “[t]hen existing mental, emotional, or physical condition”:

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Fed. R. Evid. 803(3).

         For the statement to qualify under the exception, it “must relate to the declarant's state of mind during” the incident in question. United States v. Netschi, 511 Fed.Appx. 58, 61 (2d Cir. 2013)(“To admit statements of one's state of mind with regard to conduct that occurred . . . earlier as in this case would significantly erode the intended breadth of this hearsay exception.” (quoting United States v. Cardascia, 951 F.2d 474, 488 (2d Cir. 1991)(internal quotation marks omitted). This requirement is not to say that the statement must be said at the very moment of the incident, but for intent to be proved, it must be “contemporaneous” to the act. Mutual Life Ins. Co. of New York v. Hillmon, 145 U.S. 285, 295 (1892). To be contemporaneous and therefore admissible under the present state-of-mind exception, a statement must be “part of a continuous mental process.” United States v. Cardascia, 951 F.2d at 488. In addition to the requirements that the statement be contemporaneous to the incident at hand and relevant to the case's issues, it must also be established that there was no opportunity for the declarant to “fabricate or to misrepresent his thoughts.” United States v. Jackson, 780 F.2d 1305, 1315 (7th Cir. 1986)). The intent statements must reveal information or details about the future, which has been contrasted with memory statements or looking back to the past. See Shepard v. United States, 290 U.S. 96, 104 (1933). When statements entail issues of looking into the past combined with other concerns, it can often be too confusing for a jury to extract, upsetting the balance of advantage, and ultimately making the evidence inadmissible. See Shepard v. United States, 290 U.S. at 104. “The most obvious risk of prejudice is that the jury will consider the hearsay statement not as proof of state of mind and the subsequent conduct of the declarant, but rather for the truth of the facts that are related in the statement.” Stephen A. Saltzburg et al., Fed. Rules of Evidence Manual § 803.02, at 4-803 (11th ed. 2017).

         2. Rule 803(19).

         Hearsay statements are also permissible pursuant to rule 803(19), if the statement concerns “[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.” Fed.R.Evid. 803(19). As the Advisory Committee Note highlights, rule 803(19)

is concerned with matters of personal and family history. Marriage is universally conceded to be a proper subject of proof by evidence of reputation in the community. 5 Wigmore § 1602. As to such items as legitimacy, relationship, adoption, birth, and death, the decisions are divided. Id. § 1605. All seem to be susceptible to being the subject of well founded repute. The “world” in which the reputation may exist may be family, associates, or community. This world has proved capable of expanding with changing times from the single uncomplicated neighborhood, in which all activities take place, to the multiple and unrelated worlds of work, religious affiliation, and social activity, in each of which a reputation may be generated. People v. Reeves, 360 Ill. 55, 195 N.E. 443 (1935); State v. Axilrod, 248 Minn. 204, 79 N.W.2d 677 (1956); Mass. Stat. 1947, c. 410, M.G.L.A. c. 233 § 21A; 5 Wigmore § 1616. The family has often served as the point of beginning for allowing community reputation. 5 Wigmore § 1488.

         Fed. R. Evid. 803 advisory committee's note. Weinstein's Federal Evidence further articulates the need for this exception:

Other evidence of family matters is frequently unavailable, and it is likely that these matters have been sufficiently inquired about and discussed with persons who have personal knowledge so that a trustworthy consensus has been reached. No. requirement of unavailability is imposed, because of the likelihood that on questions of this kind -- such as birth, adoption, and legitimacy -- other available witnesses would also be testifying from reputation, rather than personal knowledge. . . .
The rule does not require that reputation in question have been formulated before the controversy arose, since a false reputation as to birth, death, or marriage is not likely to arise at any time. However, there is a greater possibility of inaccuracy concerning other aspects of family history, such as an ancestor's travels.

         5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 803.21[2] at 803-140 (Mark S. Brodin ed., 2d ed. 2018).

         Rule 803(19) provides that reputation evidence is admissible to prove personal or family history, and that family members or close associates can establish the reputation. See Fed.R.Evid. 803(19); Saltzburg, supra, at 803-93. Reputation in the community often serves to provide evidence of marriage. See 5 Wigmore on Evidence § 1602, at 569 (Chadbourn rev. 1974)(“[I]t has been universally conceded that reputation in the community is always admissible to evidence the fact of marriage; there does not seem to have been any time when this was disputed.”). The Advisory Committee on Evidence Rules notes that that this exception contemplates, as proper subjects of proof, marriage, legitimacy, relationship, adoption, birth, and death. See Fed.R.Evid. 803(19) advisory committee's notes. See United States v. Jean-Baptiste, 166 F.3d 102, 110 (2d Cir. 1999)(“[Rule 803(19)] plainly contemplates that members of a family may testify with regard to the common understanding as to the birth of another family member.”). No. matter the purpose, reputation testimony requires a reliable foundation. See Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 100-01 (3d Cir. 1999)(concluding that, to admit reputation evidence among a work community, the proponent must establish that reputation testimony “arises from sufficient inquiry and discussion among persons with personal knowledge of the matter” to constitute trustworthy reputation; rumors and speculation are insufficient). The exception's rationale “is that ‘the natural effusions of those who talk over family affairs . . . are trustworthy.'” Saltzburg, supra, at 803-93 (quoting Johnson v. State, 737 S.W.2d 901, 905 (Tex. App. 1987), aff'd in part and vacated on other grounds in part, 784 S.W.2d 47 (Tex. Crim. App. 1990)(en banc)(construing the state counterpart to Federal Rule 803(19))).

         3. Rule 803(20).

         Under the rule 803(20) hearsay exception, an out-of-court statement is admissible if the statement concerns “reputation in a community -- arising before the controversy -- concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.” Fed.R.Evid. 803(20). The Advisory Committee Note to rule 803(20) states that,

[t]he first portion of Exception [paragraph] (20) is based upon the general admissibility of evidence of reputation as to land boundaries and land customs, expanded in this country to include private as well as public boundaries. McCormick § 299, p. 625.[2] The reputation is required to antedate the controversy, though not to be ancient. The second portion is likewise supported by authority, id., and is designed to facilitate proof of events when judicial notice is not available. The historical character of the subject matter dispenses with any need that the reputation antedate the controversy with respect to which it is offered.

         Fed. R. Evid. 803 advisory committee's note. The Federal Rules of Evidence Manual states that,

[t]o qualify for admission under Rule 803(20), the testimony must report a general consensus in the community, an assertion of the group as opposed to one or a few of its constituents. The fact that the information has been considered by and was subject to the general scrutiny of the community is an essential guarantee of reliability for the exception. Consequently, if the statement is a personal assertion of a single declarant, it will not be admitted under Rule 803(20).

         Saltzburg, supra, at 803-94. The Advisory Committee Note to rule 803 discusses the rationale behind reputation-based exceptions to the rule against hearsay:

Trustworthiness in reputation evidence is found “when the topic is such that the facts are likely to have been inquired about and that persons having personal knowledge have disclosed facts which have thus been discussed in the community; and thus the community's conclusions if any has been found, is likely to be a trustworthy one.” 5 Wigmore § 1580. . . . On this common foundation, reputation as to land boundaries, customs, general history, character, and marriage have come to be regarded as admissible. The breadth of the underlying principle suggests the formulation of an equally broad exception, but tradition has in fact been much narrower and more particularized, and this is the pattern of these exceptions in the rule.

         Fed. R. Evid. 803 advisory committee's note.

         To have significant probative value to qualify for admission under rule 803(20), the matter in question “must be one of general interest, so that it can accurately be said that there is a high probability that the matter underwent general scrutiny as the community reputation was formed.” McCormick on Evidence § 322, at 554 (Kenneth S. Broun ed., 7th ed. 2013)(quoted by the Honorable Bruce S. Jenkins, United States District Judge for the District of Utah, in Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072, 1049 (D. Utah 1981)(Jenkins, J.), rev'd in part on other grounds, 716 F.2d 1298 (10th Cir. 1983)). See Mont. Power Co. v. Fed. Power Comm'n, 185 F.2d 491 (D.C. Cir. 1950)(admitting newspaper accounts and histories describing river's navigable nature during the nineteenth century to prove river's reputation for navigability during the nineteenth century). Wigmore states this “general interest” component even more emphatically:

[T]he facts for which such an opinion or reputation can be taken as trustworthy must . . . be such facts as have been of interest to all members of the community as such, and therefore have been so likely to receive general and intelligent discussion and examination by competent persons, so that the community's received opinion on the subject cannot be supposed to have reached the condition of definite decision until the matter had gone, in public belief, beyond the stage of controversy and had become settled with fair finality.

         5 Wigmore on Evidence, supra, § 1598, at 564-65.

         Regarding the “general historical events important to [the] community” clause, Fed.R.Evid. 803(20), the Honorable Marvin E. Frankel, United States District Judge for the Southern District of New York, stated: “It is generally recognized that reputation is acceptable as proof of historical events of general interest in the community, despite the fact that such evidence is hearsay.” Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 368 F.Supp. 1098, 1104 n.5 (S.D.N.Y. 1973)(Frankel, J.). Hence, the rationale for this clause is: (i) a need for the evidence, because of the likelihood that other evidence cannot be obtained; and (ii) reliability, because the testimony represents the consensus of the community.[3] See Advisory Committee's Note to Original Rule, reprinted at § 803 App. 01[2] (“[Rule 803(20)] is designed to facilitate proof of events when judicial notice is not available.”). See Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 368 F.Supp. at 1104 (“We have made pragmatic judgments in ruling from time to time that dubious or suspect evidence should be taken from all sides, however skeptically, when the practical alternative was to have no evidence of any kind.”).

         Courts are inclined to permit testimony pursuant to rule 803(20), although indicia of bias limits its probative value. See United States v. Belfast, 611 F.3d 783, 794 (11th Cir. 2010); Ute Indian Tribe v. State of Utah, 521 F.Supp. at 1075. In Ute Indian Tribe v. State of Utah, which involved a dispute about reservation boundaries, Judge Jenkins concluded that “reputation in a non-Indian community as to Indian boundaries, rights, etc., is indeed a treacherous ground for decision, ” because reputation evidence admitted pursuant to rule 803(20) is reliable only when it is of general interest, and the American Indian boundaries in that case were not of general interest before the dispute arose. 521 F.Supp. at 1149 (“While, as counsel for the counties points out, [boundary] reputation evidence is generally admissible in federal court under Rule 803(20), its reliability in these specific circumstances is suspect.”). In United States v. Belfast, the United States Court of Appeals for the Eleventh Circuit affirmed a conviction for torture offenses committed in Liberia while the defendant's father was Liberia's President. See 611 F.3d at 783. The United States Court of Appeals for the Eleventh Circuit held that the district court did not abuse its discretion in admitting testimony by a Liberia Desk ...


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