United States District Court, D. New Mexico
PUEBLO OF JEMEZ, a federally recognized Indian Tribe, Plaintiff,
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
R. Allen Elizabeth Reitzel Miller Stratvert P.A. Albuquerque,
New Mexico Attorneys for the Intervenor Defendant
MEMORANDUM OPINION AND ORDER
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.”). 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))).
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.
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
Trial Tr. at 168:10-21 (Solimon).
Court acknowledged that it is “not an expert in [rule]
803, ” 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).
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).
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).
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).
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.”)).
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)).
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.)).
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).
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)).
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.).
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).
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).
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.
Evid. 803 advisory committee's note. Weinstein's
Federal Evidence further articulates the need for this
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.
B. Weinstein & Margaret A. Berger, Weinstein's
Federal Evidence, § 803.21 at 803-140 (Mark S.
Brodin ed., 2d ed. 2018).
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
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
[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. 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.
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).
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.
Evid. 803 advisory committee's note.
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
Wigmore on Evidence, supra, § 1598, at 564-65.
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. See Advisory Committee's
Note to Original Rule, reprinted at § 803 App.
01 (“[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.”).
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 ...