Thursday, April 19, 2012

Apologies Admissible in Criminal Prosecutions

State v. Lealao (HSC March 28, 2012)

Background. Blue Lealao was charged with assault in the first degree. HRS § 707-710. Lealao filed a motion in limine excluding his statements of condolences; particularly, the statement, "I'm so sorry. I made a big mistake." Lealao relied on HRE Rule 409.5. The circuit court allowed only the statement, "I made a big mistake" was admissible over Lealao's objection. The apology was not. At trial, testimony showed that Lealao hit a man named Emil after an argument at a birthday party. Approximately a week and a half later, testimony from a woman named Chelcey Pang established that Lealao said he had made a "big mistake." Lealao testified in his own defense and explained the "mistake" he was talking about was not an admission of guilt. A jury found him guilty of assault in the second degree and he was sentenced to five years of imprisonment. The ICA affirmed, but noted that it was unclear if HRE Rule 409.5 applied to criminal cases.

HRE Rule 409.5 Excludes Apologies . . . Statements "or gestures that express sympathy, commiseration, or condolence concerning the consequences of an event in which the declarant was a participant is not admissible to prove liability for any claim growing out of the event. This rule does not require the exclusion of an apology or other statement that acknowledges or implies fault even though contained in, or part of, any statement or gesture excludable under this rule." HRE Rule 409.5.

. . . But only in Civil Cases. According to the HSC, this rule does not preclude the admission of sympathy, commiseration, or condolence in criminal cases. The plain language of the rule "suggests that the rule was not intended to apply in a criminal context." The HSC focused on the word "liability," which apparently is limited to civil cases. The commentary also did not mention criminal proceedings. According to the HSC, the commentary suggests that it did not apply to criminal cases. The rule "favors expressions of sympathy as embodying desirable social interactions and contributing to civil settlements, and the evidentiary exclusion recognizes that the law should facilitate or, at least, not hinder the possibility of this healing ritual." HSC also found support in the legislative history. Here, the ICA gravely erred in applying the rule to this criminal case.

What is "Liability?" According to the HSC, the plain language of the rule limits its application to civil cases. The language of the rule prohibits apologies, etc. to be admitted as evidence to prove "liability for any claim[.]" Without expressly stating it, the HSC's analysis suggests that in criminal cases there is no "liability" or "claim." These terms apparently have no place in criminal prosecutions. The phrase "criminal liability," may have just become nonsensical mumbo jumbo.

Distinguishing Canady. In State v. Canady, 80 Hawai'i 469, 911 P.2d 104 (App. 1996), the ICA in a prosecution for abuse of a family or household member excluded the defendant's statement that he wanted to go to the emergency room to apologize to his girlfriend. The Canady court rejected the prosecution's argument that the apology was substantial evidence to support the conviction. Id. at 475, 911 P.2d at 110. The ICA explained that an apology standing alone could have multiple meanings. Id. It was not evidence that the defendant committed a crime. Id.

Here, however, the issue was entirely different. Canady examined the sufficiency of admitted evidence and held that there was not enough to support the conviction. Here, the issue centered around the admission of the apology itself.

Don't Forget the rest of the Rules. Let's not get too crazy. Just because HRE Rule 409.5 doesn't apply in a criminal case does not mean all apologies are admissible. Hearsay rules still apply. Here, there was no need to get into that since the apology came from the defendant and that would be an exception to the hearsay rule. But what if it was a written statement? That should be prohibited pursuant to the best evidence rule. And don't forget the balancing approach between relevance--yes, apologies by the defendant are almost always going to be relevant--and the risk of undue prejudice. HRE Rule 403.

Other Matters. The HSC addressed other matters relating to the break up of the statement. Because the circuit court broke up Lealao's statement into two parts, it examined whether the second half of the portion--"I made a big mistake"--without the first part ("I'm so sorry") was prejudicial error. See, e.g., State v. Tucker, 10 Haw. App. 43, 67-68, 861 P.2d 24, 35 (1993). It was not harmless. Thus, the HSC affirmed the conviction.

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