At the conclusion of the bench trial in this matter, the Court reserved ruling on the admissibility of two items of evidence offered by the defendants and requested supplemental briefs from the parties addressing this issue. Defendants thereafter filed a motion to admit evidence and a statement of points and authorities in support thereof, and plaintiffs filed an opposition. Upon consideration of the filings of the parties, the Federal Rules of Evidence and the relevant case law, the Court denies defendants' motion to admit evidence.
The defendants seek the admission of (1) a handwritten notation at the top of Defendants' Exhibit No. 11, and (2) a certified statement provided by Hatuey DeCamps, the President of the Partido Revolucianario Dominicano ("PRD" or "Party") and a translation thereof. The statement and the translation together were marked for identification as Defendants' Exhibit No. 31. Defendants concede that both the notation at the top of Exhibit No. 11 and the entirety of Exhibit No. 31 are hearsay statements that the defendants seek to have admitted for the truth of the matters asserted therein. Defendants argue, however, that the notation at the top of Exhibit No. 11 is admissible under any one of three exceptions to the hearsay rule: Rule 803(1) of the Federal Rules of Evidence (present sense impression), Rule 803(3) (then existing mental, emotional or physical condition), and Rule 803(6) (the business records exception). Defendants also assert that both the notation on Exhibit 11 and Exhibit 31 are admissible under Rule 807 of the Federal Rules of Evidence, the so-called residual exception.
The typewritten portion of Defendants' Exhibit No. 11 was admitted in evidence as an application that was submitted to the PRD, on or about November 4, 1999, by members of the proposed Seccional de Maryland y Virginia requesting recognition of the Seccional de Maryland y Virginia as an official seccional of the Party. During his testimony, Dr. Felipe Rodriguez, Vice President in Function of defendants' group, stated that Defendants' Exhibit No. 11 was his group's application for approval as an official seccional. The Court asked Dr. Rodriguez what the handwritten statement at the top of Defendants' Exhibit No. 11 said, and Dr. Rodriguez responded that it said, "'Okay,' followed by the names of Rafa Gamundy and Fausto Liz, who are two officials of the PRD, followed by the words 'dar le curso,' which mean 'allow it to proceed,' followed by the signature of Hatuey DeCamps, who is President of the PRD in the Dominican Republic, followed by the words 'copy to Rafael Lantigua.'" *fn1 Plaintiffs agree that the handwritten notation at the top of Defendants' Exhibit No. 11, which is written in Spanish, is properly translated as "Okay, go ahead, proceed."
Dr. Rafael A. Lantigua, who is President of the Federal Committee and of the Federation of Seccionales of the PRD in the United States, testified that Defendants' Exhibit No. 11 was received by the PRD in the Dominican Republic and was processed through official channels. Dr. Lantigua also testified that he was very familiar with the handwriting of Hatuey DeCamps and that the handwriting at the top of Defendants' Exhibit No. 11 was in fact that of President DeCamps. Defendants submit that Dr. Lantigua's testimony also established that President DeCamps' handwritten statement at the top of the Exhibit was made at the time that he was "perceiving (i.e., reading and responding to) the application submitted" to him by members of the proposed seccional and that the notation constituted his approval of the application and thus his approval of the seccional. Defendants/Counterclaimant's Motion to Admit Evidence and Statement of Points and Authorities in Support Thereof ("Defs.' Mem.") at 4.
On this basis, defendants request that the handwritten notation be admitted in evidence to prove the truth of the matter asserted -- namely, that President DeCamps had indicated in writing that the application of the proposed seccional for recognition as an official seccional of the Party had been approved.
Defendants' Exhibit No. 31 for identification purports to be a certified statement provided by President DeCamps on December 17, 2001, confirming that in September 2000 the Political Commission of the PRD authorized Dr. Rafael Lantigua to swear in the Seccional de Maryland y Virginia as an official seccional of the PRD. Dr. Lantigua testified that when the issue of whether the Seccional de Maryland y Virginia had been properly approved as a seccional of the PRD was first brought to his attention in connection with this lawsuit, he requested confirmation from President DeCamps -- the highest ranking officer in the PRD, the official spokesperson of the Party, and the Chairman of the Political Commission that approves new seccionals under the by-laws of the Party. According to Dr. Lantigua, President DeCamps provided the certified statement that is Defendants' Exhibit No. 31 in response to Dr. Lantigua's inquiry. Dr. Lantigua testified that he received this document and that the signature on it is that of President DeCamps.
On this basis, defendants request that Defendants' Exhibit No. 31 be admitted in evidence to prove the truth of the matter asserted -- namely, that the Political Commission of the PRD in fact had approved the proposed Seccional de Maryland y Virginia and authorized it to be sworn in as an official seccional of the Party.
A. Rule 803 Exceptions: Exhibit No. 11
Rule 803(1) of the Federal Rules of Evidence provides an exception to the hearsay rule for present sense impressions. It states that the following is not excluded by the hearsay rule even if the declarant is available as a witness: "A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." FED. R. EVID. 803(1). The Advisory Committee Note to Rule 803(1) explains the limited scope of the exception: "The underlying theory of Exception [paragraph] (1) is that substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation." FED. R. EVID. 803 advisory committee's note. The "critical element" of the exception therefore is contemporaneity; "the statement must be made at the time that the event or condition is being perceived or immediately thereafter." 4 STEPHEN A. SALTZBURG, MICHAEL M. MARTIN & DANIELJ. CAPRA, FEDERALRULES OF EVIDENCE MANUAL § 803.02[a] (8th ed. 2002).
In this case, there is no evidence that President DeCamps' statement reflected in the notation at the top of Defendants' Exhibit No. 11 was made contemporaneously with his perception of any event or condition relating to the supposed authorization of the seccional that he may have been perceiving, or immediately thereafter. No witness at trial testified as to when President DeCamps made the notation. While defendants argue that the notation was "made at the time that DeCamps was perceiving, i.e., reading and responding to the application," Defs.' Mem. at 4, they have offered no evidence to support this assertion and there is none in the record. So far as the evidence before the Court is concerned, this notation could have been made at any time. In the absence of evidence of the critical element of contemporaneity, the exception set forth in Rule 803(1) does not apply. See United States v. Santos, 201 F.3d 953, 963-64 (7th Cir. 2000) (handwritten note on worker's complaint inadmissible because no evidence that writing was contemporaneous with event documented in complaint); Hynes v. Coughlin, 79 F.3d 285, 294 (2d Cir. 1996) (statement inadmissible because no proof "that report was made at or immediately after the time of event as is required"); Alexander v. CIT Technology Financing Services, Inc., 217 F. Supp. 2d 867, 882-83 (N.D. Ill. 2002) (proponent of handwritten notes provided "no evidence regarding either the time of her confrontations or the time she wrote her notes;" notes therefore inadmissible under present sense impressions exception). See also New York v. Microsoft Corp., Civil Action No. 98-1233, 2002 U.S. Dist. LEXIS 7683, at *7 (D.D.C. April 12, 2002) (email drafted several days after event not present sense impression of occurrence).
Rule 803(3) contains another exception to the hearsay rule that permits the admission of the following with respect to a declarant's "state of mind":
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 ...