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Petitioner appeals his conviction by the lower court at trial of one count of first-degree arson, in violation of Florida statue 806.01(1).
Constitutional and Policy Provisions Involved.
Florida Statue (insert weird thingy) Florida statue 806.01 provides in pertinent part:
Any person who willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages or causes to be damaged:
- Any dwelling, whether occupied or not, or its contents;
- Any structure, or contents thereof, where persons are normally present, such as: jails, prisons, or detention centers; hospitals, nursing homes, or other health care facilities; department stores, office buildings, business establishments, churches, or educational institutions during normal hours of occupancy; or other similar structures; or
- Any other structure that he or she knew or had reasonable grounds to believe was occupied by a human being, is guilty of arson in the first degree, which constitutes a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Questions Presented
- Whether Petitioners recorded statement to law enforcement immediately prior to his arrest in the instant case was coerced and therefore subject to exclusion under the Due Process Clause of the Fourteenth Amendment and Article 1, section 9 of the Florida Constitution?
- Whether a declarants question is categorically exempt from the Florida Evidence Codes definition of hearsay in section 90.801 (1), Florida Statues?
Statement of the case
In 2018, a student enrolled at Southern Coastal University ( SCU ) angerly set fire to the abandoned and condemned student union building. At trial the victim was found guilty of first-degree arson in violation of section 806.01(1) Florida Statues. On appeal of the Sixth District Court, the issues before this court are:
- whether the trial court erroneously denied the motion to suppress his confession to law enforcement and;
- whether the trial court erroneously overruled his hearsay objection to the admission of a question posed to Mr. Murphy at the scene of the offense.
Arguments
Florida law, like its federal counterpart Federal Rule of Evidence 801, defines hearsay as 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. Fla. Stat. § 90.801(1)(c); see also Fed. R. Evid. 801(c). The term statement is defined further as [a]n oral or written assertion[.] Fla. Stat. § 90.801(1)(a)(1). [W]hether evidence falls under the statutory definition of hearsay or is admissible under an exception to the hearsay rule are questions of law reviewed de novo. Helms v. State, 271 So. 3d 1030, 1033 (Fla. 4th DCA 2019).
The trial court correctly permitted the admission of Patricks question to his brother because it was not hearsay. An inquiry is not an assertion, and accordingly is not and cannot be a hearsay statement. United States v. Oguns, 921 F.2d 442, 449 (2d Cir. 1990). Because a question cannot be used to show the truth of the matter asserted, the dangers necessitating the hearsay rule are not present. Id.; see also United States v. Love, 706 F.3d 832, 840 (7th Cir. 2013) (collecting cases).
In United States v. Oates, 560 F.2d 45 (2nd Cir. 1977), the court held a law enforcement chemist’s report to be hearsay, not subject to an exception under Federal Rules of Evidence, Rule 803(8) and therefore inadmissible without the chemist. The court significantly held that the prohibition of Rule 803(8) against admitting hearsay reports prepared by law enforcement personnel in criminal cases carried over to Rule 803(6). Thus the government cannot use the business records exception to introduce reports that would violate Rule 803(8).
Mr. Murphy was not subject to be there time of questioning, therefor even if the question was hearsay , it is inadmissible.
There is no merit to petitioner’s contention – based on the bootstrapping rule of Glasser vs. United States, 315 U. S. 60, and United States vs. Nixon, 418 U. S. 683 – that a court, in determining the preliminary facts relevant to Rule 801(d)(2)(E), must look only to independent evidence other than the statements sought to be admitted. Both Glasser and Nixon were decided before Congress enacted the Federal Rules of Evidence, and Rule 104(a) provides that, in determining preliminary questions concerning admissibility, the court is not bound by the rules of evidence (except those with respect to privileges), thus authorizing consideration of hearsay. Such construction of Rule 104(a) does not fundamentally change the nature of the co-conspirator exception to the hearsay rule. Out-of court statements are only presumed unreliable, and may be rebutted by appropriate proof, and individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it.
In order to encourage the witness to do his best with respect to each of these factors, and to expose any inaccuracies which may enter in, the Anglo-American tradition has evolved three conditions under which witnesses will ideally be required to testify:
- under oath,
- in the personal presence of the trier of fact,
- subject to cross-examination.
Which in Mr. Murphy was subject to none of these.
For similar approaches, see Uniform Rule 62(1); California Evidence Code §§225, 1200; Kansas Code of Civil Procedure §60459(a); New Jersey Evidence Rule 62(1).
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