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Kentucky Supreme Court Clarifies Adoptive Admission Exception to Hearsay Rule

by Christopher Zoukis

The Kentucky Supreme Court has clarified exactly what the “adoptive admission” exception to the hearsay rule is under Kentucky law and how it applies in a criminal trial. The teachable moment came in a November 2, 2017 decision in which the Court upheld a defendant’s manslaughter conviction.

Daniel Lee Moss was involved in an altercation at his home in which Shawn Thompson was shot and killed. When the police arrived, they found Thompson lying at the bottom of the front steps, face up. Sarah Sanders, who had been visiting Moss with Thompson, was hugging Thompson and screaming.

Deputy Johnson talked to Moss, Christina Layle, and Sanders in order to determine what happened. While Moss was explaining his version of events that reportedly included exculpatory elements, Sanders interrupted and screamed, “You shot him in the back for no reason.” Rather than respond to her outburst, Moss remained silent and partially covered his face and mouth with his hands.

Moss was charged with murder and tampering with physical evidence. A jury convicted him of second-degree manslaughter on the theory that he shot Thompson “in an actual but mistaken and wantonly-formed belief” that he had to in self-defense. He was also convicted of the tampering charge and received an aggregate 15-year sentence.

Moss appealed, arguing that the trial court erred when it allowed Sanders’ statement and his subsequent silence into evidence as an adoptive admission. The trial court ruled that under Kentucky Rule of Evidence 801A(b)(2), which provides for an exception to the hearsay rule for adoptive admissions, Sanders’ statement coupled with Moss’ failure to deny it were “admissible as [Moss’] admission that Sanders’ statement was true” as an adoptive admission. The Kentucky Court of Appeals affirmed the trial court. But the Kentucky Supreme Court disagreed with the reasoning of both the trial court and the appellate court, but nevertheless affirmed on different grounds.

The Court reviewed the common law roots of the adoptive admission exception to hearsay. In a 1933 case, the Kentucky Supreme Court explained that such hearsay was admissible because, “it is contrary to [the] nature and habits [of men] to permit statements to be made in their hearing and presence tending to connect them with an offense for which they may be made to suffer punishment without entering an objection or denial unless they are in some manner repressed or restrained or there is seemingly no natural and proper call for such contradictions.” Essentially, it is assumed that if someone falsely accuses you of a crime the natural thing to do is refute the accusation.

But in order for Moss’ silence to constitute an adoption of Sanders’ statement, the trial court would have to reasonably infer that Moss “manifested an adoption or belief in [the] truth” of her outburst. The Kentucky Supreme Court concluded that the trial court could not have reasonably done so because Moss was already in the process of telling his version of events when Sanders interrupted with her accusation. That is, Moss had not remained silent; in fact, his version of events contradicted Sanders’, which prompted her outburst in the first place.

The Supreme Court noted that Moss “would have had no ‘natural and proper call’ to contradict Sanders’ outburst when he was then and there in the process of telling his side of the story to the police, especially after his explanation had provoked Sanders’ accusation.” Accordingly, the trial court erred when it allowed Sanders’ statement and Moss’ silence into evidence as an adoptive admission of the truthfulness of her statement.

Moss also objected to the prosecution’s erroneous explanation of the adoptive admissions rule to the jury. During the trial, the prosecutor told the jury, “If someone walks up to you and says … ‘You’re a murderer, and you shot someone in the back for no reason,’ you have to respond, or else you’re adopting it as their telling you the truth.” The prosecutor also advised the jury that when faced with an incriminating statement “You have to respond, or else you’re adopting it as their telling you the truth.”

The Supreme Court observed that the prosecutor’s statements “suggests that one has a legal duty to respond to an accusation. That is incorrect.” The Court clarified in no uncertain terms that there “is no legal duty to respond to an accusation, and the law does not ordain that one who fails to deny an accusation has legally admitted it.” It explained:

“The law of adoptive admissions is nothing more than an exception to the hearsay rule that allows in applicable circumstances an otherwise inadmissible out-of-court assertion (i.e., the accusation) to be admitted as evidence for whatever probative value it may have against a party whose conduct has ‘manifested an adoption or belief in [the] truth’ of the out-of-court statement…. At most, the law allows the fact finder to hear the out-of-court accusation and then draw from the listener’s conduct any reasonable inference their wisdom and common-sense permits, including the inference that the listener agrees with the accusation…. [B]ut telling the jury as a matter of law that the party’s silence is an admission is inaccurate and impermissible.”

Unfortunately for Moss, despite the prosecutor, the trial court and the appellate court all misunderstanding and misapplying the adoptive admissions rule, the Kentucky Supreme Court affirmed his conviction. The Court determined that the error was harmless because Moss was not convicted of murder, but manslaughter. As such, the jury could not have found that Moss’ silence was an admission that he shot Thompson “for no reason.” Instead, the jury accepted Moss’ testimony that he believed force was necessary in self-defense, but the jury concluded he “was wantonly mistaken in that belief.”

Therefore, the Kentucky Supreme Court affirmed the Court of Appeals’ decision, but on different grounds. See: Moss v. Commonwealth, 531 S.W.3d 479 (Ky. 2107). 

 

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