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Minnesota judge allows testimony of deceased woman

By: DOLAN MEDIA NEWSWIRES//January 18, 2012//

Minnesota judge allows testimony of deceased woman

By: DOLAN MEDIA NEWSWIRES//January 18, 2012//

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By Patrick Thornton
Dolan Newswires

MINNEAPOLIS, Minn. — The woman in the photograph was memorable. She was bald and talking to a police officer at the scene of a car crash in 2008 near the Abbot Northwestern Hospital in Minneapolis. Bloomington plaintiffs’ lawyer Rich Ruohonen wanted her to testify as to what she witnessed at the crash that injured his client, but he couldn’t locate her.

“We had her name from the police and we ran a couple of searches on her but we had no luck finding an address or a phone number. Finally we did a Google search and we found an obituary that said she had passed away from cancer,” Ruohonen said.

So Ruohonen would have to try a different tact, right?

Not necessarily.

He was able to convince Hennepin County Judge Mary DuFresene to allow the testimony of the deceased woman in the trial under an exception to the Minnesota Rules of Evidence that bans hearsay evidence. With the benefit of the deceased woman’s testimony, Ruohonen won a $116,000 verdict for his client to cover medical bills and future pain, distress and medical expenses.

“It was an unusual case and set of circumstances,” Ruohonen said. “I don’t think we needed [the deceased woman’s testimony] but it definitely helped as far as proving liability and what happened.”

Ruohonen represented Marshaunna Bobo, who was a passenger in her friend Brianna Glover’s vehicle. The two were on their way to church near the hospital. Their vehicle collided with one driven by Cynthia Schweiss. Both women claimed the other ran the red light. Schweiss was on her way to visit her father, who had been airlifted the night before and was expected to die very shortly, Ruohonen said. Later in the proceedings Schweiss admitted that she was at the wrong hospital when the crash happened.

A woman who was at Abbot for her cancer treatment happened to witness the crash and told the police that she saw the truck driven by Schweiss run the red light and collide with the vehicle driven by Glover. The officer recorded the conversation in his report and a photograph of the woman talking to the officer was snapped and preserved by the crash reconstruction team. Ruohonen said the witness was memorable because she was bald due to the cancer treatment and in the photo she was pointing at Schweiss’ truck. Before the trial started, however, the woman died.

Ruohonen was able to track down the officer she spoke to and verify that she told him Schweiss was the driver who ran the red light. He knew the defense attorney would object to having the officer to testify as to what the woman told him, because there was no witness to cross-examine in court, but Ruohonen argued the testimony could be admitted under Rule 803 of the Minnesota Rules of Evidence. The rule states that hearsay evidence can be included under the “excited utterance” exception: a statement made relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

Minneapolis plaintiff’s lawyer Fred Pritzker said the excited utterance exception can only be used in exactly the kind of situations it sounds like.

“If a witness to an accident shouts out, ‘Look at that jerk. He just ran a red light.’ That would qualify,” he said. “It has to be immediate and the bottom line is it’s not that common.”

There is also an exception that allows for hearsay evidence to be admitted under Rule 807 of the rules of evidence that allows statements to be introduced if “the interests of justice will best be served by admission of the statement into evidence.”

Ruohonen thought he might be able to convince a judge, under either the “excited utterance” exception or the catch-all exception in 807, to let in the officer’s testimony. The officer first testified without the jury and the judge told Ruohonen that if he “asked the right questions” she would allow the officer’s testimony.

“We went for it, and the defense attorney kept objecting,” Ruohonen said. “I had to ask several different questions, in a few different ways, but I laid the foundation that the officer remembered talking to a bald woman, and that this was her in the photo. And then I asked if he would agree that she was startled and excited by what she saw? And I asked him if she told him that she saw [Schweiss’ truck] run the red light. … Luckily the officer said he remembered the crash well and remembered talking to a bald lady and that he put that conversation into his report.”

Ruohonen’s client suffered soft tissue injuries to her neck and upper back and injured her head and spine in the crash. She needed physical therapy and neurological care for the injuries. In late 2011, the jury found Schweiss 100 percent liable for the crash. The defense offered $8,000 to settle the claim and turned down a $25,000 settlement offer from Ruohonen early on.

Minneapolis plaintiffs’ attorney Peter Riley had a similar case involving the recorded statement of a witness who died before the mediation was finished.

“We had a motion on admitting the statement before a judge. The other side said we will pay you X if the court won’t admit it the statement and Y if it will,” Riley said. “It’s a classic discretionary call on the judge’s part, but if you have the right witness statement and the right situation, you go for it. If the judge admits the testimony, there’s no error.”

The only problem is that the knife cuts both ways with hearsay evidence, Riley said.

“Next time, the hearsay testimony could be favorable to the defendant and then you have is no opportunity to cross-examine or ask questions to the witness’ credibility which is tough to counterbalance,” he said.

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