Res Gestae Raises Its Ugly Head
| Publication year | 1996 |
| Pages | 24 |
65 J. Kan. Bar Assn. October, 24 (1996). RES GESTAE RAISES ITS UGLY HEAD
October, 1996
Virginia M. Klemme
Copyright (c) 1996 by the Kansas Bar Association; Dennis D. Prater and Virginia M. Klemme
Introduction
"The phrase res gestae [FN1] has long been not only entirely useless, but even positively harmful. It is useless, because every rule of evidence to which it has ever been applied exists as a part of some other well established principle and can be explained in the terms of that principle. It is harmful, because by its ambiguity it invites the confusion of one rule with another and thus creates uncertainty as to the limitations of both. It ought therefore wholly to be repudiated as a vicious element in our legal phraseology." [FN2]
*25 What is res gestae? Or more correctly, what was it?
It was a confusing mass of common law rules concocted to permit the introduction of out-of-court statements into evidence over a hearsay objection. The concept was abolished in the federal system with the enactment of the Federal Rules of Evidence, which set forth with specificity the permissible exceptions to the hearsay rule. [FN3] Likewise, after the Kansas Legislature enacted rules of evidence for the Kansas courts, the Kansas Supreme Court held, in 1970, that lingering common law doctrines like res gestae were abolished. [FN4]
Has the Kansas Supreme Court fallen into the trap so eloquently noted by Wigmore? Has res gestae again raised its ugly head? Yes and then some!
In recent cases the court has elevated res gestae to new heights. In some cases, the court has applied the phrase inappropriately to "other acts" evidence when no hearsay issue is present. [FN5] More distressingly, res gestae has also been used to craft a new and confusing exception to the hearsay rule. [FN6] At its worst, this exception allows a witness to say on the stand what someone else said that yet a third person said, without specific evidence concerning the circumstances of the making of the out-of-court statements.
The court's application of res gestae in the hearsay setting finds no justification in the common law. It improperly amends the Kansas Rules of Evidence. It violates the confrontation clause of the U.S. Constitution.
This article begins with an abridged history of the birth and development of res gestae at common law and its extinction by legislative enactments. This installment will then consider State v. Gadelkarim, [FN7] where the court's application of res gestae clearly violates the confrontation clause. The article will close with some thoughts for the practicing trial bench and bar on how to deal with the Kansas Supreme Court's res gestae aberration.
History of res gestae
Thayer tells us our nemesis res gestae first raised its ugly head in England in the trial of Horne Tooke for high treason. [FN8] At issue was the introduction of a letter into evidence. At that time, the development of the hearsay doctrine was in its infancy. It would be fair to say that the distinction between out-of-court statements offered for their truth and statements offered for other purposes was not well-defined. Nor was there any clearly conceived analysis for exceptions to the hearsay rule based on necessity or reliability. Thus, when, Garrow, counselor for the government, offered the letter commenting that it should be received as part of the res gestae on the subject, and the judge let the letter in, res gestae was both born and assured a lengthy existence. [FN9]
The res gestae cancer grew and was exported to the United States. By the 1920s, it was used here in an extraordinary variety of situations to allow the admissibility of out-of-court statements and other evidence. [FN10] Then, in 1922, lawyer and educator Edmond M. Morgan undertook the monumental task of trying to make sense out of this nebulous concept. [FN11]
Morgan was up to the task. He recognized seven categories where res gestae had been applied to the introduction of out-of-court statements.
The first category involves an utterance as an operative fact. [FN12] For example, words of contracting and words of defamation although spoken out of court are admissible because they are offered not for their truth but merely to show the statements were made. As such, the words are not hearsay and resort to res gestae as an exception to the hearsay rule is simply unnecessary.
The second category concerns statements offered regardless of their truth upon the question of the existence or nonexistence of a material fact. [FN13] For example, the statement "I am Napoleon" offered in a case to show the declarant was insane is not offered for its truth. Still, the words are relevant to a material fact and are admissible because they are not hearsay. Again, resort to res gestae is meaningless.
The next category concerns out-of-court statements that help resolve the legal implications of an ambiguous act. [FN14] Here, Morgan discusses a fairly limited occurrence. The best example is the circumstance where one individual gives another money. It could be that the money was a gift, a loan or even the repayment of a debt. Words spoken during the transfers are admissible because the actual intention of the donor is immaterial. Under the substantive law it is the expressed intention that is decisive. Thus, the words are not offered for their truth; they are not hearsay, and res gestae should play no role in the analysis.
The fourth and fifth categories are perhaps the most confusing. [FN15] Suffice it to say for our purposes, they deal with situations where the state of mind of the declarant is involved. In neither circumstance is res gestae useful. In the fourth category, the utterance is merely circumstantial evidence of
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state of mind and thus not hearsay. In the fifth category, the statement of intent is offered for its truth, but there was an already developed and recognized exception for this type of statement based on the famous or infamous Hillmon case. [FN16]
Category six concerns what we now call present sense impressions. [FN17] In the 1920s there was still some debate whether contemporaneous statements describing an event should be admissible as an exception to the hearsay rule. A typical example of this category is the situation where a witness while watching a car go by says, "that car is going way too fast." Should the statement be allowed as an exception to the hearsay rule when offered to show the driver was speeding? Morgan answered the question affirmatively believing that the contemporaneousness of the statement with the event assured reliability due to the lack of time to fabricate.
The last category deals with what we now recognize as the excited utterance exception to the hearsay rule. Here, the issue is whether statements concerning a startling event made while under stress from perceiving the event should be admissible as an exception to the hearsay rule. Morgan indorsed the concept, while recognizing that it had not at his writing gained general acceptance. [FN18]
As to categories six and seven, Morgan makes it clear that the use of the term res gestae adds nothing to the argument. As Morgan's analysis took hold concerning the first five categories, a debate lingered whether present sense impressions, excited utterances or both were valid exceptions to the hearsay rule. Res gestae continued to be used to describe these two concepts. In other words, res gestae was vastly downsized to mean the present sense impression and the excited utterance concepts and the debate surrounding them. [FN19]
Each concept had a famous advocate. Thayer is credited with advancing the theory of present sense impressions. [FN20] Wigmore was the champion for excited utterances. [FN21] It was a battle between contemporaneous statements (Thayer) and spontaneous statements (Wigmore) with each side believing their exception was more reliable than the other.
How was this last vestige of res gestae resolved? The American Law Institute in the Model Code of Evidence dealt with the problem this way:
1. Evidence of a hearsay statement is admissible if the judge finds that the hearsay statement was made. a) while the declarant was perceiving the event or condition which the statement narrates or describe or explains, or immediately thereafter; or
b) while the declarant was under the stress of a nervous excitement caused by his perception of the event or condition which the statement narrates or describes or explains. [FN22]
Explaining its rule the Institute's comment states: Clause (a) is in accord with ... what Professor James Bradley Thayer believed to be the rule applied in the so-called res gestae exception to the hearsay rule. ... The event or condition may or may not be exciting to the declarant. Clause (b) also is in accord with the theory and result of a large number of cases. It expresses what Dean Wigmore believes to be the rule applicable in the res gestae exception, and is accepted in a large majority of the modern opinions. The two clauses are not co-extensive in operation. In a multitude of cases the application of either would bring the same result; but in a goodly number, this would not be true. [FN23] Obviously, the debate was resolved by including both competitors for the res gestae title in the proposed rule. With the assimilation of both lingering res gestae definitions into the Model Code, at least in the Code, there was simply nothing left for res gestae to mean.
The same outcome was reached when the Federal Rules of Evidence were enacted. Rule 803(1) contains the present sense impression exception to the hearsay rule. Rule 803(2) excepts excited utterances. What then was left of res gestae in the federal system. In Miller v. Keating, 754 F.2d 507, 509...
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