Opinion

Sharee Miller v. Clarice Stovall

  • 742 F.3d 642
  • 2014 U.S. App. LEXIS 2514
  • 2014 WL 519627
Court
Court of Appeals for the Sixth Circuit
Filed
Feb 11, 2014
Status
Published
Author
Moore
On the bench
Boggs, Moore, Kethledge
Cited by
244 cases
Authority
More cited than 11.4%

“Statements are more likely to be accurate the closer they are in time to the events they describe … that is the spirit behind the traditional ‘present sense impression’ … exception[] to the hearsay rule” which “permits the introduction into evidence of a ‘statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.’”

How later courts described this case

  • “Statements are more likely to be accurate the closer they are in time to the events they describe … that is the spirit behind the traditional ‘present sense impression’ … exception[] to the hearsay rule” which “permits the introduction into evidence of a ‘statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.’”
  • “Contemporaneousness may indicate that statements were truthful only where the speaker would not have had time to fabricate a story. Indeed, that is the spirit behind the traditional ‘present sense impression’ and ‘excited utterance’ exceptions to the hearsay rule.”
  • “[B]ecause the failure to provide a medical certification is an independent basis for denying FMLA leave notwithstanding the appropriateness of that leave, we need not consider whether Kinds actually had a serious health condition during the period in question.”
  • “[U]nder 28 U.S.C. § 2254 (d), “clearly established Federal law” is the law at the time the original decision was made, not … the law “before the conviction became final.”

Written by the judges who cited it.

The opinion

KAREN NELSON MOORE, Circuit Judge,

concurring in the judgment.

I agree that habeas relief is unwarranted at this time. In light of Greene v. Fisher, — U.S. -, 132 S.Ct. 38, 43 , 181 L.Ed.2d 336 (2011), I agree with the majority opinion that the “clearly established federal law” applicable in this case is the law under Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), which permits the admission of hearsay evidence when the declarant is unavailable for cross-examination only if the evidence bears “adequate ‘indicia of reliability.’ ” I cannot say that the admission of Cassaday’s suicide note was contrary to or an unreasonable application of the relevant federal law. See 28 U.S.C. § 2254 (d). Therefore, I join in the judgment affirming the judgment of the district court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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