Hearsay Problems Proving Legislative Intent through Newspaper Articles — Limited Utility of Residual Exception (Rule 807) — Alternate Proof

Planned Parenthood SE, Inc. v. Strange, 2014 U.S. Dist. LEXIS 148662 (M.D. Ala. Oct. 20, 2014):

On August 4, 2014, the court issued an opinion on the merits of the plaintiffs' constitutional claim against the staff-privileges requirement of Alabama's Women's Health and Safety Act, 1975 Ala. Code § 26-23E-4(c). See Planned Parenthood SE., Inc. v. Strange,     F.Supp.2d    , 2014 U.S. Dist. LEXIS 106159, 2014 WL 3809403 (M.D. Ala. 2014). Today, the court issues a supplemental opinion explaining how it had resolved certain evidentiary matters related to the August 4th opinion, namely the admissibility of certain exhibits, the admissibility of certain expert opinions, and the credibility of the parties' witnesses.

I. Newspaper-Article Exhibits

Both parties had introduced as exhibits several newspaper articles that [*4]  purport to represent statements made by Alabama legislators and the Governor regarding the Women's Health and Safety Act, among other issues. The State objected to the admission of all of the exhibits on hearsay grounds.

In Brooks v. Miller, 158 F.3d 1230 (11th Cir. 1998), the Court of Appeals held that hearsay rules apply to the use of newspaper evidence in a bench trial for the purpose of proving legislative intent: “News articles often contain multiple layers of hearsay and do not trump the sworn testimony of eyewitnesses. In ascertaining legislative purpose, a trial court operates under the same rules of evidence that control in any case." Id. at 1242. Applying those rules of evidence, the court sustained the State's objections in part: insofar as they were introduced to prove that certain statements were or were not made by elected officials, the articles are hearsay and were not admitted for that purpose.

A newspaper report that an event occurred, if used to prove that the event actually occurred, is classic hearsay. It is an out-of-court statement used for the truth of the matter asserted. See Fed. R. Evid. 801(c); Southern Wine and Spirits of America, Inc. v. Div. of Alcohol and Tobacco Control, 731 F.3d 799, 808 (8th Cir. 2013) (“Newspaper articles are ‘rank hearsay’"). There is no general hearsay exception [*5]  for newspaper articles. Hope for Families & Comm. Service, Inc. v. Warren, 721 F. Supp. 2d 1079, 1178 n.114 (M.D. Ala. 2010) (Watkins, J.)(and cases cited).

Furthermore, newspaper articles rarely satisfy the requirements of the residual-hearsay exception. Federal Rule of Evidence 807 allows for the admissibility of hearsay not specifically covered by an enumerated hearsay exception if:

"(1) the statement has equivalent circumstantial guarantees of trustworthiness;

"(2) it is offered as evidence of a material fact;

"(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

"(4) admitting it will best serve the purposes of these rules and the interests of justice."

Fed. R. Evid. 807(a).

In this case, the plaintiffs argued that the court should admit the newspaper articles under Rule 807 in light of the absence of official legislative history. However, even if the articles in question satisfy the requirement of trustworthiness and even if admitting them would serve the interests of justice, the articles would not be admissible because the plaintiffs could have introduced other, equally probative evidence of the reported statements: They could have called the legislators themselves and examined them as to their statements; and, alternatively, they could have [*6]  elicited testimony from the reporters or other witnesses who observed the statements reflected in the newspaper articles. See Larez v. City of Los Angeles, 946 F.2d 630, 641-44 (9th Cir. 1991). By attempting to introduce the articles instead, the plaintiffs denied the State the opportunity to cross-examine the observers as to the accuracy of the alleged statements. The plaintiffs did not show that they made reasonable efforts to obtain such testimony or that it would have been futile to do so.

Therefore, the court did not admit the articles under the residual-hearsay exception. However, an out-of-court statement is not hearsay if it is not offered to prove the truth of the matter asserted. Here, the articles were admitted for another purpose: for their effect on Alabama readers. See U.S. v. Trujillo, 561 Fed. Appx. 840, 842 (11th Cir. 2014). Regardless of whether the elected officials actually made the statements reported in these articles, the court found them to be relevant to the climate in which abortion providers live. Therefore, the articles were admitted for this limited purpose only.

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