June 21, 2017 Articles

Rule 803(11): Rarely Applied, Rarely Denied

As long as a document fits the definition of a religious record, regardless of whether it appears trustworthy, it will likely be admitted

by Elizabeth Teter

Federal Rule of Evidence 803(11) is rarely applied. It provides that the following types of religious records, which are otherwise excludable as hearsay, are admissible, regardless of whether the declarant is available: "[a] statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization." Fed. R. Evid. 803(11).

Rule 803(11) is not frequently litigated because it often overlaps with other hearsay exceptions—namely, Federal Rule of Evidence 803(6) (business records), Federal Rule of Evidence 803(8) (public records), and Federal Rule of Evidence 803(9) (vital records). 30C Federal Practice and Procedure Evid. § 7052 (2014 ed.). However, Rule 803(11) is distinct from these other hearsay exceptions in that the declarant (i.e., the church official) is not under any obligation—business or legal—to be truthful. Id. Instead, the trustworthiness of the declarant is presumed because the record is usually created in connection with a solemn religious ceremony, the church official does not have a personal interest in the record, and the act documented in the record is of a moral nature. Id.

Although few recent court opinions have applied Rule 803(11), useful information about the rule can be gleaned from those that do. In Jessop v. State, 368 S.W. 653 (Tex. App. 2012), the Texas Court of Appeals held that Texas's identical Rule 803(11) applies to records of a religious organization regardless of the declarant's beliefs. Id. at 684. In Jessop, the appellant, a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), was "'sealed' in a spiritual or celestial marriage" to a 15-year-old female member of the church who, at 16, gave birth to a child. DNA testing later proved that the appellant was the biological father, and he was indicted for sexual assault of a child. The trial court admitted FLDS records proving the existence of the celestial marriage, and the appellant was convicted. On appeal, the appellant argued that the admission of the FLDS records was improper because "the exception for records of a religious organization was not meant to include 'the writings of an evangelist,' but rather 'the words of ordinary men and women in the formation of records of the most important of their own personal affairs'" and "the church's leader, the 'prophet,' is himself a defendant who believes himself to be hearing the voice of God." Id. at 683–84. However, the court of appeals rejected the appellant's argument, explaining that

Rule 803(11) does not depend on the personal views or religious beliefs of those making the records. Nor does Rule 803(11) depend on the popularity or acceptance of the religious organization in question or the character of the organization's leader. Hearsay evidence need only be consistent with the provisions of the exception to be admissible.

Id. at 684; see also Keate v. State, No. 03-10-00077-CR, 2012 WL 896200, at *8 (Tex. App. Mar. 16, 2012) ("Rule 803(11) does not depend on the popularity or acceptance of the religious organization. Hearsay evidence need only be consistent with the provisions of the exception to be admissible.")

In Versatile v. Johnson, No. 3:09CV120, 2011 WL 1167440 (E.D. Va. 2011), the U.S. District Court for the Eastern District of Virginia ruled that Rule 803(11) must be interpreted literally. Id. at *2. In Versatile, a pro seprisoner filed a section 1983 claim alleging that the defendants unlawfully interfered with his exercise of religion by banning documents related to his religion, the Nation of Gods and Earths (NGE), in the prison. At trial, he attempted to introduce a witness affidavit to prove the existence of NGE's professional office and national representative under Rule 803(11). However, the court refused to admit the affidavit into evidence under Rule 803(11), explaining that the affidavit "is not a 'regularly kept record' of NGE and contains information distinctly different from births, marriages, ancestry, or 'other similar facts of personal or family history.'" Id. (quoting Fed. R. Evid. 803(11)).

In Chavez v. Lynch, No. 14-CV-07566 DMG (ARGx), 2015 WL 12661915 (C.D. Cal. Nov. 20, 2015), the U.S. District Court for the Central District of California held that documents explicitly listed in the text of Rule 803(11) are admissible, regardless of their trustworthiness. Id. at *4 n.8. In Chavez, the petitioner, a respondent in removal proceedings, sought a declaratory judgment that he was a United States citizen. He argued that he acquired citizenship from his mother, who acquired citizenship from his grandmother, who allegedly was born in the United States. The petitioner sought to introduce his grandmother's baptismal record under Federal Rule of Evidence 803(11) as proof that she was born in the United States. The government objected to the introduction of the baptismal record, arguing that it was untrustworthy and therefore inadmissible. Id. at *4 n.8. The court overruled the government's objection, explaining that the "objection goes to the weight of the document, not its admissibility." Id.

While few in number, recent court opinions discussing Rule 803(11) do indicate that its application is relatively straightforward. In determining whether to admit evidence under Rule 803(11), courts look to the plain text of the rule and do not take into account the religious or personal beliefs of the declarant. Regardless of whether the document appears trustworthy, as long as it fits within the definition of a religious record under Rule 803(11), it will likely be admitted into evidence.

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