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JOE HILL ONE HUNDRED YEARS LATER: THE CASE FOR RELIABLE HEARSAY NEVER DIED
Thisarticlewillnot
belabor the many er-
rors Hill’s lawyers
committed in the
trial.11
Rather, it will
focus upon an aspect
of the Hill case that
has not been previ-
ously discussed in ac-
ademic scholarship:
the strict application
of the hearsay that
precluded introduc-
tion of the most relevant potential exculpatory evidence.
This paper will propose a more liberal application of the
residual hearsay exception against the backdrop of Joe
Hill’s murder trial. What this case study shows is reliable
exculpatory hearsay not introduced at trial, which strongly
contradicts the circumstantial evidence by which the
prosecutor, Elmer Leatherwood secured a guilty verdict.12
Admittance of Morrison’s statements would have pro-
vided powerful exculpatory evidence meeting all criteria
of the modern residual hearsay exceptions.13
This article
will show that application of the residual hearsay rule,
found in the Utah Rules of Evidence Rule 807, to Down-
ing’s testimony of Morrison’s statements would result in
admissible, although nonetheless hearsay, evidence. This
article will propose the probative purpose of the testimony
as: (1) showing that a more likely motive, revenge, lay
behind Morrison’s shooting; and (2) showing more likely
suspects with such a motive were still at large when Joe
Hill was arrested.
Downing’s testimonial evidence would have illustrated
how the murder of John G. Morrison makes more sense
when viewed as an assassination by individuals other than
Joe Hill, namely men previously arrested by Morrison.
This would have shed much doubt upon the prosecution’s
case—possibly enough to produce reasonable doubt thus
rebutting the inferences of guilt made by the jury.14
The
lesson to carry forward, of course, is for Utah attorneys to
engage more vigorous advocacy under the residual hearsay
exception and for Utah judges to engage in a more nuanced
review of such evidence.
This article will also discuss how the criteria used to
assess validity under the residual hearsay exception of
the rules of evidence can be used to inform the academic
discipline of history. This article will argue that the use
of reliable hearsay in history—like reliable hearsay in
law—leads to supportable conclusions. Historians should
develop and apply a version of Rule 807. Evidence should
be used when it is reliable, understandable, and is used
to prove a major historical argument. Instead of ideol-
ogy, historians should shift their focus to reliability as the
primary tool in evaluating historical evidence.
This article will continue forward in three parts. Part
II will provide historical background to the Hill murder
trial.15
Here we will also discuss the relevant qualities of
John G. Morrison’s life and character that support the
reliability of his ante-mortem declarations. Part III will
provide an analysis of John G. Morrison’s hearsay and its
admissibility under Rule 807. Part IV will focus on the
historiographical treatment of certain historical evidence.
Here the argument will be presented that a rule akin to
Rule 807 should govern the choices of historians weighing
the reliability of historical evidence.
II. Background: The Swede and
the Grocer
“I am ‘a citizen of the world’ and I was born on a
planet called the earth.”16
A. The Swede
Joe Hill was a labor songwriter and a member of the Indus-
trial Workers of the World (hereinafter “the I.W.W.”).17
A
Swedish immigrant, Hill wrote many of the English lan-
guage labor songs of the early twentieth century.18
Songs
were the primary form of propaganda for the I.W.W.19
The I.W.W. published these songs in what was commonly
referred to as the “Little Red Songbook” and Joe Hill wrote
many of the songs contained within.20
The Songbook’s
lyrics, set to popular tunes familiar to the working poor,
explained the I.W.W.’s views and beliefs regarding the
state of industrial labor at the turn of the century.21
In
short: “Joe Hill…became a legend in his time and after.”22
We know relatively little of the life and travels of Joe
Hill.23
In fact, what we do know “of the whereabouts and
activities of Joe Hill during the decade 1902 to 1912 leaves
us with a paucity of fact and an abundance of specula-
tion.”24
This is mostly due to his reluctance to relate an
autobiography. “Biography you say? No. Let’s not spoil
good writing paper with such nonsense—only the here
and now is of concern to me.”25
This no doubt has added
to his myth over the years.
However, we can place him on a map at a few key times
in his life with relative certainty—if only sporadically.
Joe Hill was born Joel Hägglund in Gävle, Sweden on
October 7, 1879.26
He arrived in New York on October
15, 1902.27
He can be placed in Cleveland, Ohio in 1905
Joe Hill’s booking photo
3. SPRING 2015 33
by post-marked Christmas cards received by his family.28
In 1906, Hill’s hometown newspaper received a letter
from him describing his experience in the San Francisco
earthquake.29
Finally, the 1910 census reports Hill living
in Minnesota as a boarder in the house of a family by
the name of Johnson.30
However, Hill also seems to have
joined the I.W.W. in San Pedro in 1910.31
Other than these few points on the timeline we are left
with speculation. Between 1909 and 1912 some accounts
place Hill with specificity around the country.32
We can
never truly know which labor events he was actually pres-
ent for, and which he was merely rumored to have been
present. However, the fact that Hill wrote songs inspired
by labor strikes taking place from British Columbia to
Lawrence, Massachusetts suggests he traveled the conti-
nent widely and was fairly knowledgeable about the goings
on in such places.33
It is easy to imagine Hill’s mindset upon arriving in
America. He probably shared the hopes and dreams of
many other immigrants in the “huddled masses.”34
[Hill] left his native Sweden for America where he
believed prosperity would be his merely for the ask-
ing and where equality of opportunity was a reality.
But, for [Hill], America turned out to be a land
specializing in the oppression of foreigners and mi-
grant workers. It could have been nothing but an
embittering experience.35
There is little doubt that Hill was a highly intelligent
man. With English as his second language, Hill used col-
loquialisms and turns of phrase that would be hard for a
non-native speaker to master over a lifetime.
[Richard] Hofstadter said that wit was the sign of
an intellectual. Joe Hill demonstrated both wit and
powerful poetic language that resonated then and
continued to resonate within the labor movement.
This is perhaps the secret of Joe Hill’s continuing
vitality. It is the reason a poor Swedish immigrant
became the cause of the nation and one reason why
this debate has meaning today. This gift of creativ-
ity was where Joe Hill showed his superiority in
explaining the goals and doctrine of the union.36
For example:
The union had problems with “craft” work-
ers not supporting their strikes. The A[merican]
F[ederation] of L[abor, a craft workers’ union,]
often ignored IWW strikes and in many instances
took the position of the employer….Joe Hill ex-
plained the problem to the workers in terms they
understood. He wrote Casey Jones the Union Scab.
“Scabbing” was a pejorative term for strike break-
ing. The legendary engineer refused to help the
workers win the strike with the Southern Pacific.
He kept running his engine to spite the strikers.
Because of the strike, Casey Jones ran his train
into the water, where he died. [Later,] Joe Hill has
Casey Jones “scabbing on the angels” until Saint
Peter sends him to hell for scabbing. No one could
mistake what Hill was saying. 37
His true creative potential was cut short, however. Even-
tually, Hill made it to Salt Lake City, Utah in 1913.38
Hill’s
international wandering came to an end here.39
B.. The Grocer
Historians have performed years of research in regard to
Joe Hill’s life, but comparatively little is known about the
victim in Joe’s trial, John G. Morrison. As such, little has
been written about him. Morrison was born in 1866 in
post-Civil War Missouri.40
Based on his eldest child’s birth-
date, Morrison was residing in Utah by 1895 at least. At
the time of his murder, Morrison owned a grocery store.41
The Morrison family attended the Congregational
church.42
The Congregational church was among the
leading protestant denominations in opposition to the
Mormons in early Utah statehood.43
Morrison was highly involved in the politics of his
community and, just like his church-going life, Mor-
rison’s political life had a decidedly anti-Mormon lean.
In the aftermath of the Reed Smoot Senate controversy,44
Salt Lake non-Mormons organized what was called the
American Party.45
Morrison was active in the American
Party, serving as a delegate from the 16th district.46
In
1909, they succeeded in capturing the city offices.47
As a
result, under the Utah spoils system,48
Morrison became
a police officer.49
He remained in that position for five
years.50
The police force under the American Party took
on a tone of corruption. The police chief, for example, was
involved in illegal gambling.51
He was indicted, tried, and
let off on a technicality.52
Regardless of the politics surrounding the police force,
Morrison regretted his public service.53
Over the course
of his police career, Morrison arrested many men in the
Salt Lake valley.54
In fact, Morrison was one of the bravest
men on the force—almost to the point of foolhardiness.55
The police force routinely sent him to arrest, Salt Lake’s
most dangerous men.56
“I have got just five hundred dol-
lars left of the money I have made in this city by mighty
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JOE HILL ONE HUNDRED YEARS LATER: THE CASE FOR RELIABLE HEARSAY NEVER DIED
hard work, and I would give it all up if I could just have
my name blotted out of the police department’s record. I
have lived to regret that I ever was a member of the force.”57
In contrast to that statement, Morrison was a wealthy
man who worked very hard to provide his family with
the finer aspects of life in early twentieth century Salt
Lake City. Morrison left an estate valued at $18,000.58
He managed to accumulate this wealth at a time when
the average per capita income in Utah was $300.59
Mor-
rison’s wealth was mostly derived from real estate.60
In
1911, for example, he purchased twenty acres of land in
Salt Lake City.61
And so it appears that the case of Joe Hill involved
two men pursuing the American dream. For one, it was
just that—a dream; for the other, that dream was very
real and in his grasp. Regardless, tragedy came for them
both indiscriminately.
C. Morrison’s Enemies and the Trial of
Joe Hill
“I don’t want to be found dead in Utah.”62
On the evening of January 10th, 1914, Morrison and
his two sons, Arling and Merlin, were closing the family
grocery store.63
Two men, faces covered with bandanas,
entered the storefront, approached Morrison, said “[w]e
have got you now,” and then shot into the storefront.64
Both Morrison and Merlin died from gunshot wounds.65
Approximately one and a half hours after the shoot-
ing, Hill sought treatment from a physician for a serious
gunshot wound.66
Hill told the treating physicians that
an unnamed man, in an undisclosed place, had wounded
him in a fight over an unnamed woman.67
Dr. A. A. Bird
stated “[Hill] told me it was over a woman; that he had
knocked the other man down and that the latter had then
shot him. He refused to discuss the matter further, say-
ing the other man was his friend. I asked him no further
questions.”68
The doctors also noted that Hill possessed
a semi-automatic pistol. Hill later admitted that he dis-
carded the weapon.69
The authorities investigating the shooting discovered a
trail of blood beginning a few feet in front of the Mor-
rison store and leading Southwest.70
They followed this
trail as it lead south. The blood trail pooled at a factory
where the police theorized the suspect stopped to clear
his lungs of blood, then it ended in a vacant lot.71
The
trail, however, lead in the general meandering direction
from the grocery store to the physician’s office, a few miles
from the Morrison store.72
On the strength of the evidence
of Hill’s wound and evidence that a person who looked
like Hill was in the area at the time of the shooting, Hill
was arrested and tried for the Morrison murders.73
Hill
recounted to the police the same story he told his physi-
cians.74
Few people in Utah found his alibi credible.75
The
chief reason for this was that the authorities found no other
severely wounded men.76
Although the trial court admitted testimony as to
Hill’s story of his wounding, Hill did not take the stand
and testify on his own behalf.77
Further, there was no
defense evidence presented as to the whereabouts of Hill
on the evening of January 10, 1914.78
Not surprisingly,
Hill was convicted.79
This conviction was based on cir-
cumstantial evidence proffered by the state. In particu-
lar, the prosecution rested on the testimony of Merlin
Morrison, Morrison’s surviving son who witnessed the
shooting.80
Merlin testified “that the size of [Hill] was
similar to the that of the tall man who entered the store,
but he…would not testify that it was the same man.”81
The prosecution also based their case on the fact that
Hill had a bullet wound.82
At trial, two experts battled
over what the limitations of the day’s forensic and bal-
listic sciences told them about Hill’s bullet wound.83
On
appeal, Justice Straup gave no credence to the argument
that such circumstantial evidence was insufficient.84
“Under all the circumstances the defendant’s wound,
unexplained, was quite as much a distinguishing mark
as though one of the assailants in the assault had one of
his ears chopped off.”85
In fact, while maintaining the prosecution’s burden
to prove guilt beyond a reasonable doubt, Justice Straup
essentially implied that Hill had done nothing to help
himself throughout.86
The defendant declined to give the officer any in-
formation, or to make any statement whatever re-
specting such a matter, except that he threw his gun
away….The defendant, of course, was not required
to make any statement to the officer. His refusal
to make any or to answer any question cannot,
though the fact was brought out by the defendant,
be considered as an admission of guilt. He had a
right to remain silent. Nor can his neglect or refusal
to be a witness in any manner prejudice him or bed
used against him. The state, as in all other criminal
cases, was required to prove the defendant’s guilt
beyond a reasonable doubt. But the defendant, with-
out some proof tending to rebut them, may not
avoid the natural and reasonable inferences deduc-
ible from proven facts by merely declining to stay
off the stand or remaining silent.87
5. SPRING 2015 35
The conviction was upheld on an appeal that was
mostly based on an insufficiency of the evidence claim.88
Unfortunately, given the evidence and facts available, this
is probably legally correct. Appellate courts in Utah, as in
most other American jurisdictions, conduct constrained
judicial review of facts and inferences conventionally held
in the purview of the jury.89
“Justice Straup was simply
reciting the evidence that supported the verdict…. [T]he
court [simply] refused to go beyond its constitutional man-
date to decide questions of law and not…fact.”90
When
reviewing the sufficiency of evidence and the jury’s finding
of facts, Utah appellate courts today conduct the same
deferential analysis. “In reviewing a jury verdict, [Utah
appellate courts] view the evidence and all reasonable
inferences drawn therefrom in a light most favorable to
the verdict.”91
Utah appellate courts “reverse a jury verdict
only when the evidence…is sufficiently inconclusive or
inherently improbable such that reasonable minds must
have entertained a reasonable doubt that the defendant
committed the crime….”92
The question has always remained: other than Hill’s
own testimony, did any exculpatory evidence sufficient
for the successful rebuttal Straup alludes to exist at the
time? This article argues yes. However, questions of
admissibility of evidence are also treated with a similar
deferential standard to jury inferences and verdicts.93
“In reviewing hearsay rulings, [Utah courts] review…
final ruling[s] on admissibility for abuse of discretion.”94
This standard of review is on the end of a spectrum,
granting large amounts of deference to the trial court.
Thus, with these deferential standards applied at the
appellate level, we are left with a single historical op-
portunity in which meaningful change could have been
effected in Joe Hill’s case—the trial. Better trial advo-
cacy could have produced more favorable evidentiary
rulings, negating the need to appeal a guilty verdict in
the first place.
Hill was executed by firing squad on November 19,
1915.95
Reasonable doubt in the jurors’ minds would
have saved Hill. With this result in mind, we proceed
to find a way in which exculpatory evidence may have
been admitted.
The prevailing antithesis to the prosecution’s depiction
of Hill as Morrison’s murderer is that an enemy of Mor-
rison’s assassinated him.96
In fact, the day after Morrison’s
shooting, newspapers reported that revenge was the motive
police believed the assailants operated under.97
Morrison’s
own family, soon after the murders, was also convinced
that the motive was revenge. Morrison’s surviving son,
Merlin recounted the circumstances of that night indicat-
ing the motive:
The men rushed in the front door and ran to a
point about opposite the scales on the left-hand
counter, there…. Father had just gone behind the
glass showcases on the right side, through the aisle,
there at the middle of the store. Brother was back
there at the end of the counter on the right-hand
side and I was in the back of the store….Of course,
when the men rushed in, we all turned around to
see who they were. Without giving my father a mo-
ment’s warning the first one rushed [in] and yelled:
“We’ve got you now.” …I am sure that the men didn’t
mean to rob the store, because one of them said as he
rushed in: “We’v[e] got you now” [a]nd then he fired.
It must have been revenge. I stepped behind some
shelves down there in the back of the store when
they began shooting to protect myself, but I kept
my head out far enough to see it all.98
An examination of Morrison’s life shows many instances
in which he could have made such enemies throughout
Utah before Hill ever rolled into town.99
Beyond that,
there is no discoverable reason why Hill would have
wanted Morrison dead. There is no reason the I.W.W.
would have selected Morrison for assassination. While
the I.W.W. may not have been particularly enamored of
the Salt Lake City police, there were other policemen,
such as Axel Steele who had a much higher profile as a
labor baiter.100
He was the individual who started the only
known attack on I.W.W. members in Salt Lake City.101
The firefight that ended Morrison’s life was not the first
in which he had been involved. On February 2, 1903, three
masked men entered the Morrison store while the family
was eating dinner in the living quarters behind the store.102
Morrison appeared in the front room with a brand-new
double-barrel shotgun.103
Both barrels failed to fire.104
Under heavy fire from the three men’s revolvers, Morrison
crawled back to the living quarters and returned to the
storefront with his revolver.105
He succeeded in wounding
one of the men and received two gunshot wounds him-
self.106
The three masked men fled.107
Police officer Horace
Heath chased the assailants down and shot one through
the head.108
“After Morrison’s death, the police speculated
that the companions of the man killed by Officer Heath
after their attack on Morrison returned on January 10,
1914—eleven years later—to exact their revenge.”109
Yet again, in September of 1913—only four months
prior to his death, Morrison shot it out with criminals.
He had since moved his family’s living quarters from
the rear of his grocery store and was walking the short
distance from the store to his home.110
Two men again
shot it out with Morrison. Morrison returned fire in
6. LABOR LAW JOURNAL SPRING 201536
JOE HILL ONE HUNDRED YEARS LATER: THE CASE FOR RELIABLE HEARSAY NEVER DIED
the same brave fashion as before. Yet again the men got
away—one on bicycle.111
Morrison not only had fears that arose from these violent
run-ins, but made those fears widely and publicly known.
On multiple occasions, to multiple people, Morrison
disclosed his feelings regarding the two previous attacks
and the fact that he feared further reprisal.
First of all, Morrison told his family that he feared the
assailants from the previous shoot-outs would return to
take his life.112
Similarly, according to former Salt Lake
City police captain Hempel, Morrison said that he lived
in daily fear of men whom he had arrested.113
Morrison
also made it widely known to friends, neighbors, and
newspaper reporters that he did not think the September
20th, 1913 attack was the last he would see of the bandits.
Steve Davis, a close friend of the Morrison family,
said [on the evening of January 10th, 1914] that
only a few days [before] Mr. Morrison told him
that he was reasonably certain that he knew the
men who attempted to hold him up on the night
of September 20[th], but declined to mention any
names in fear that he might be doing someone and
injustice. Similar statements are said to have been
made to a few close friends, but so far as it is known
he never gave any names to them.114
The Salt Lake Evening Telegram told a similar story in
its Monday edition:
“The fellow who tried to hold me up did not want
to rob me, he wanted to kill me,” said J.G. Morri-
son,…while telling Hardy K. Downing, the police
reporter for THE EVENING TELEGRAM of the
incidents surrounding the attempt on his life last
September. Mr. Downing called upon Mr. Morri-
son for his version of the shooting, and after pledg-
ing Mr. Downing to confidence regarding some
phases of the shooting, said: “He did not want my
money, he wanted my life. He ordered me to throw
up my hands, and if I had obeyed, he would have
killed me when I had no chance to defend myself.
He knows me and he knows my habits. He knew
just the moment I was to leave the store, according
to my regular habits, and he knew where to get me.
Know that it was not my money he wanted….”115
Downing kept Morrison’s confidence in this informa-
tion until after Morrison’s death.116
It is doubtful that Hill had any contact with Morrison
prior to Morrison’s shooting. It is even more unlikely that
he had sufficient contact to create the type of vengeful
motive that many convicted criminals who had been ar-
rested by Morrison possessed. The individuals that Mor-
rison clearly expressed fear about in his statements could
simply not have been Hill. Hill’s sojourn to Utah—like
much of his life— is difficult to document. “With Chicago
as his destination, Hill…left Los Angeles [in 1913] and
continued as far as Salt Lake City, Utah. In Salt Lake City
his journey was delayed for two years, but he eventually
arrived in Chicago in November 1915—the occasion
being his funeral.”117
The places Hill was confirmed to have lived while in
Utah were Park City, Sandy, and Murray.118
He first ar-
rived in Park City, Utah in 1913, hoping to make some
money to continue his journey.119
While working for the
Silver King Coalition Mining Company, he fell ill and
lost his job.120
Hill’s friend Otto Applequist then took
Hill down into the neighboring Salt Lake Valley during
the 1913 Christmas season to associate with the Swed-
ish families who lived in Sandy.121
“Hill quickly became
popular with his countrymen because of his ability to sing
and play the piano and was often invited to their homes
to perform Swedish songs.”122
Hill and Applequist then
spent the first week and a half with the Eselius brothers
in January of 1914.123
Hill met the Eselius brothers earlier in 1913 when they
were working together on the San Pedro waterfront.124
Although this account from Gibbs M. Smith is difficult
to source in the historical record, it would appear, at the
very least, Hill was not involved in the 1903 Morrison
store shootout.
Hill visited the Eselius brothers frequently in August and
September of 1913, but had little opportunity to develop
bad blood with Morrison. While Morrison’s second violent
grocery store shooting was in September of 1913, it is most
likely that Hill was not involved in the shooting a decade
earlier. After all, Hill only arrived in New York five months
prior to the 1903 shooting.125
In short, it seems far more
likely that two unsuccessful assassinations finally resulted
in a third consummated assassination. If Hill wished to
desperately rob a place of business for traveling money,
it seems strange to precede that act with the statement
“We’ve got you now”. It would be remarkably strange
if Hill, a relative newcomer to the Salt Lake valley, an-
nounced his robbery in such a manner.
At any rate, Judge Ritchie barred the evidence of Mor-
rison’s ante-mortem statements regarding past attacks
and his fear of further retribution.126
He reasoned that
such statements, made by a man— now deceased—con-
stituted hearsay.127
In the strictest definitional sense, he
was legally correct.128
7. SPRING 2015 37
As previously discussed, Morrison had all the nefarious
enemies a zealous police officer would make during the
course of his arrests. Part III will discuss how Morrison’s
statements could have painted a far more plausible motive
and cast of characters for his murder.
III. Analysis: The Argument For the
Residual Hearsay Exception
“I have three prosecuting attorneys here, and I intend
to get rid of two of them….I wish to announce I have
discharged my counsel, my two lawyers.”129
A. Residual Hearsay in Early Twentieth
Century Utah
The reliable hearsay exception, as codified today, was, at
the time of Hill’s trial, in its infancy.130
However, the rationale behind the ban on hearsay was
well known: “The theory of the hearsay rule…is that the
many possible sources of inaccuracy and untrustworthiness
which may lie underneath the bare untested assertion of a
witness can be best brought to light and exposed, if they ex-
ist, by the test of cross-examination.”131
More importantly,
the corollary to the hearsay rule—that hearsay evidence
having other circumstantial guarantees of trustworthiness
should not be barred—was also well known and estab-
lished: “[The] test [of cross-examination] may in a given
instance be superfluous; it may be sufficiently clear in that
instance, that the statement offered is free enough from the
risk of inaccuracy and untrustworthiness, so that the test of
cross-examination would be a work of supererogation.”132
At the time of Hill’s trial, the creation of class exceptions
to the hearsay rule lay within the province of the judiciary’s
traditional common law powers.133
“[J]udges used their
discretion to formulate numerous standard exceptions to
the [hearsay] rule. Eventually, these exceptions became
‘well-settled case law doctrines,’ while judges maintained
their authority to develop new exceptions. The theoretical
basis for this discretion was a reluctance to handcuff trial
judges in their administration of justice….”134
Courts were already using the underlying rationale of
the later-codified residual hearsay exception to create ad
hoc exceptions at the time of Hill’s trial.135
At issue in the
1913 case, G. & C. Merriam Co. v. Syndicate Pub. Co.,
was the admissibility of the preface of the 1850 edition
of the Imperial Dictionary.136
The preface, written by one
John Ogilvie, claimed that the Imperial Dictionary was
heavily based on Webster’s Dictionary.137
In determining
whether the unsworn hearsay statement, contained within
the preface was nonetheless admissible, the court focused
on the underlying rationale of the hearsay rule:
Ogilvie’s preface is of course…only hearsay testi-
mony, which may be admitted only as an exception
to the general rule. The question is whether there
is such an exception. I have been unable to find
any express authority in point and must decide the
question upon principle. In the first place, I think
it fair to insist that to reject such a statement is to
refuse evidence about the truth of which no rea-
sonable person should have any doubt whatever,
because it fulfills both the requisites of an excep-
tion of the hearsay rule, necessity and circumstantial
guaranty of trustworthiness….As to necessity, it is a
statement made by a man now dead about his own
conduct in the compilation of his own work….As
to trustworthiness of the testimony, it has the guar-
anty of the occasion, at which there was no motive
for fabrication. A claim of originality might be sus-
picious, but one of obligation is not.138
Thus, ample common law authority existed for Judge
Ritchie to competently determine whether the non-
exempt hearsay statements of Morrison could be admitted.
Today we can rely on the long-standing residual hearsay
exception codified in both state and federal rules. With this
luxury at our disposal, there is no reason history should
continue to repeat itself.
Today, the evidentiary rules fail to ensure that the rules
as applied produce the most reliable testimony avail-
able. It was once believed that the hearsay rule was the
“most characteristic rule of the Anglo-American Law of
Evidence—a rule which may be esteemed, next to jury
trial, the greatest contribution of that eminently practi-
cal legal system to the world’s methods of procedure.”139
However, the present situation is unsatisfactory. Hearsay
evidence has the potential to be powerfully probative or
highly unreliable.
“Hearsay is not by its inherent nature unworthy
of any reliance in a judicial proceeding….Hearsay
exhibits a wide range of reliability, including mere
third hand rumors to sworn affidavits of credible
observers and ranging virtually from the highest
to the lowest levels of trustworthiness….The effort
to adjust the rules of admissibility to [these] varia-
tions…has been a major motivating factor in the
movement to liberalize evidence law.”140
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JOE HILL ONE HUNDRED YEARS LATER: THE CASE FOR RELIABLE HEARSAY NEVER DIED
Acknowledging this, our system must be willing and ca-
pable of undergoing a more nuanced analysis. As was said
more than forty years ago “the law of hearsay has persisted
in its essentially unsatisfactory state.”141
The question we
must ask is whether we are willing to remain static for
another forty years.
B. Oh, the Lessons We Can Learn: Our
Modern Hearsay Exceptions
Morrison’s statements to family, friends, and the press
constituted hearsay that was nonetheless admissible under
their own circumstantial guarantees of trustworthiness.
There should be no question that Morrison’s statements
should be admissible in a court today under the residual
hearsay exception found in Rule 807.142
Unfortunately, in
Utah courts, admissibility of hearsay evidence is usually
decided by reference to the letter of the Rules of Evidence
rather than a nuanced inquiry into the reliability of the
particular piece of evidence at issue. The Utah Court of
Appeals has instructed that “[e]vidence not shown to be
reliable cannot, as a matter of law, assist the trier of fact
to understand the evidence or to determine evidence of a
fact in issue and, therefore, is inadmissible.”143
However,
this statement tends to exemplify an ex post facto justifi-
cation to the strict adherence to hearsay rules rather than
the reasoning that would lead to such results.
The hearsay rule, as used in Utah courts is far too compli-
cated. Many of the exceptions found in Rules 801 through
806 are riddled with exceptions to those exceptions.144
In addition, many of the Rule 803 exceptions are based
upon scientific theories from the early twentieth century.
It is beyond the scope of this article to discuss the myriad
suspect rationales underlying many hearsay exceptions, but
two may illustrate the point. First, recent questioning of
the present sense impression exception, enshrined in Rule
803(1),145
is one example. The exception is founded on the
assumption that statements about contemporaneous events
are unlikely to be the product of “premeditated prevarica-
tion.”146
“The rationale…is that spontaneous utterances,
especially in emotional circumstances, are unlikely to be
fabricated, because fabrication requires an opportunity
for conscious reflection.”147
However, “[a]s with much of
the folk psychology of evidence, it is difficult to take this
rationale entirely seriously, since people are entirely capable
of spontaneous lies in emotional circumstances.”148
In fact,
“[p]eople can form lies quickly. Old and new studies agree
that less than one second is required to fabricate a lie.”149
Another example is the birthright of the Anglo-
American hearsay structure—the dying declaration
codified in 804(b)(2).150
A dying declaration is a venerable exception to the
hearsay rule. It is also an irrational one….[D]ying
declarations, on the whole, are not exceptionally
trustworthy. If the declarant is an atheist, or agnos-
tic, or otherwise unpersuaded about a relationship
between honesty in this world and reward or pun-
ishment in the next, the declarant’s dying declara-
tion should be no more trustworthy than any other
out-of-court assertion that the declarant might
make. True enough, if a man believes that hellfire
and brimstone will follow should he die with a lie
on his lips, his dying declaration will likely represent
what he believes to be the truth. But this is far from
a guarantee thereof. A dying man, in extremis, may
be less lucid than normal. Or his dying declaration
may be based on suspicion, not personal knowl-
edge. Like Sherlock Holmes, he may be paranoid,
and quick, without proof, to attribute his ill fortune
to an old enemy. “This is Moriarty’s doing.”151
Thus, admittance of hearsay evidence falling within the
letter of age-old exceptions leads to reliance on suspect
evidence based upon suspect assumptions about human
behavior. It is inversely true that characterizing evidence,
with otherwise trustworthy characteristics, as inadmissible
hearsay based purely on the letter of the Rules of Evidence
will bar information valuable to the fact-finder.
Included within the venerable Rules of Evidence is an
inspired Rule of reason.152
Rule 807 stands juxtaposed
as a monument of permissive language in stark contrast
to the bright-line rules of those sections preceding it—a
moment of clarity, if you will.153
Inclusion of Rule 807
is no accident of drafting.154
“[T]he advisory committee
felt it ‘presumptuous to assume that all possible desirable
exceptions to the hearsay rule have been catalogued and to
pass the hearsay rule to oncoming generations as a closed
system.’”155
In fact, the Rule codifies the historic rationale
behind the hearsay ban and the corollary standards of
reliability necessary for admissibility.156
Thus, the courts’
common law power to create case-by-case exceptions to
the general ban has been preserved.
The standards of reliability embodied in Rule 807 should
be the hallmark of evidentiary admissibility. Instead, court-
roomsarefilledwiththeroterecitationofarchaicbright-line
rules. Shifting the primary focus of evidentiary determina-
tions to reliability would bring more predictability into the
trial courts and would, in fact, ease the trial judge’s burden
leading her to more objectively correct decisions.
Courts already allow otherwise inadmissible hearsay
through the back door of Rule 703.157
We claim to ex-
clude hearsay on the grounds of “unreliability”, but our
9. SPRING 2015 39
trial courts routinely allow experts to testify to hearsay
evidence under Rule 703 with no further guarantees of
reliability beyond the expert’s own reliance upon that
information.158
Reconciling the inconsistencies in the
rules—the admission of unreliable hearsay and the barring
of reliable hearsay—can only be done through disingenu-
ous rationales at best.
C. Anachronism: How Morrison’s
Testimony Should Be Handled Today
It is true that it is impossible to know if Hill was actu-
ally—factually— innocent of the crimes he was convicted
of. None of us were there. Even if we were there, it prob-
ably wouldn’t help much because we suffer from the same
human shortcomings as those who were there —namely
not being able to see very well at night and not being able
to discern facial features through bandanas.
However, what is necessary for an acquittal is a finding
of not guilty.159
Not guilty is quite distinct from factually
innocent.160
Also, in a criminal proceeding, the prosecu-
tion carries the heavy burden of proving its case for guilt
beyond a reasonable doubt.161
Although many scholars
of Hill’s case would bemoan the poor management of his
defense case and be correct for doing so162
, Straup was cor-
rect when articulating this standard and what was required
to rebut the state’s circumstantial case.163
Some have pointed to the exclusion of Morrison’s pre-
mortem statements as an error made by Judge Ritchie.164
However, merely enumerating this as an error without
further discussion shows a lack of understanding of
evidentiary decisions made at the trial level. As we have
discussed, the resolution of that particular evidentiary
question was, by no means, clear-cut at the time. Admit-
tance of Morrison’s statements would have been sufficient
to rebut the prosecution’s case and produce reasonable
doubt in the mind of a juror. In turn, that reasonable
doubt of the identity of the perpetrator would have been
sufficient to bar a jury returning a guilty verdict for Hill.
In short: the idea that Morrison feared deadly retribution,
from people he arguably knew the identities of prior to
Hill entering town, had the potential to acquit Hill.
The problem is that evidence of Morrison’s statements
would have, at first glance, appeared to Judge Ritchie as
hearsay subject to no established or obvious exceptions
recognized in Utah. From a definitional perspective, Mor-
rison’s statements were paradigmatic hearsay: “‘Hearsay’
means a statement that: (1) the declarant does not make
while testifying at the current trial or hearing; and (2) a
party offers in evidence to prove the truth of the matter
asserted in the statement.”165
As stated before, at trial Hill’s attorneys “questioned
[Downing] in an effort to show that Morrison had a repu-
tation as a gunman and that he had said…that someone
was trying to kill him and he knew who it was.”166
This article suggests, that Morrison’s hearsay statements
should have been proffered to show primarily that Mor-
rison feared vengeance and retribution, and not robbery.
However, Morrison’s statements fall squarely within the
definition of hearsay. Morrison (the declarant), quite
obviously as a decedent, did not make his statements at
the trial for his own murder. The available witness would
have been Downing.167
Many other people who Morrison
confided in may have been available, though. Thus, Down-
ing, somebody other than the declarant, Morrison, would
have stated what the contents of Morrison’s statements
were—making it classic hearsay.
The second prong of the hearsay definition is also ful-
filled. The statement must be offered for the truth of the
matter asserted in order for the bar on hearsay to apply.168
Today we would proffer Downing’s testimonial evidence to
prove precisely what Morrison’s statements asserted; that
somebody else—in particular, somebody with vengeful
motives— was a more likely perpetrator than Hill. The
assertion is one and the same with the issue to be proven
at trial. Thus, Downing’s testimony would fulfill both
prongs of the hearsay definition.
Although one year after Hill’s execution the Utah courts
broke slightly from strict application of the hearsay rule,169
theresidualhearsayexceptionasweknowittodaywasstillin
itsinfancy.170
Today,althoughweawell-establishedstatutory
residual exception and a strong body of case law to rely on,
the legal landscape is still hostile to residual exceptions.171
Eminent legal minds have proposed a movement to-
wards case-by-case inquiries into the circumstantial guar-
antees of the trustworthiness of evidence. Of particular
note, Judge Posner172
has formulated his objections to the
current state of evidence law:
I don’t want to leave the impression that in ques-
tioning the present sense and excited utterance ex-
ceptions to the hearsay rule I want to reduce the
amount of hearsay evidence admissible in federal
trials. What I would like to see is Rule 807…swal-
low much of Rules 801 through 806 and thus
many of the exclusions from evidence, exceptions
to the exclusions, and notes of the Advisory Com-
mittee. The “hearsay rule” is too complex, as well
as being archaic. Trials would go better with a sim-
pler rule, the core of which would be the proposi-
tion (essentially a simplification of Rule 807) that
hearsay evidence should be admissible when it is
10. LABOR LAW JOURNAL SPRING 201540
JOE HILL ONE HUNDRED YEARS LATER: THE CASE FOR RELIABLE HEARSAY NEVER DIED
reliable, when the jury can understand its strengths
and limitations, and when it will materially en-
hance the likelihood of a correct outcome.173
Posner at once points out the contrast between the cur-
rent unwieldy regime of rules and the nature of what the
inquiry should be. Looking to historic treatises we can see
that many of the rules are vestiges of tradition rather than
logic: “It appears…that a number of the so-called ‘excep-
tions’ to the hearsay prohibition came in under the head
of written entries or declarations; they came in, or rather,
so to speak, stayed in, simply because they had always been
received, and no rule against hearsay had ever been formulated
or interpreted as applying to them.”174
These traditions, paired
with early twentieth century pseudo-Freudian psychoanaly-
sis,175
have created a strange body of rules indeed.
A more creative and zealous argument by Hill’s defense
counsel regarding the policies underlying the hearsay
exceptions may have yielded a different result. This il-
lustrates the importance of zealous advocacy under the
residual hearsay exception in present-day courts. This
approach is particularly salient when life, liberty, or both
are in jeopardy during a criminal proceeding. However,
this strategy should permeate and inform the entire legal
community—criminal and civil.
We have the residual hearsay exception today. The next
step, is using that exception. Downing’s testimony regard-
ing Morrison’s statements does not fall into otherwise
recognized and codified exceptions.176
It is true that there is no applicable “fear of assassination”
exception in the evidence code.177
Morrison’s belief in
regards to future assailants motives was not a dying declara-
tion.178
Morrison’s statement, made to Downing months
before his murder,179
would clearly fail the imminence
requirement of Rule 804’s Statement Under the Belief of
Imminent Death exception.180
Justice Cardozo succinctly
stated the standard when he said “[t]o make out a dying
declaration the declarant must have spoken without hope
of recovery and in the shadow of impending death.”181
Indeed, Morrison was not yet afflicted by the harm he
feared would kill him. The type of imminence required
for the exception—unrecoverable harm in the shadow of
impending death—was not the type of horrible anticipa-
tion Morrison suffered. Morrison simply knew the score.
When the residual hearsay exception is invoked by
courts today, they tend to compare the circumstances
of the hearsay evidence at issue with those of the closest
codified exceptions.182
There is a semantic debate as to
whether courts should admit such “near misses”,183
but
for the purposes of this article, the positivist reality is that
courts routinely do so.184
The residual hearsay exception contains five require-
ments.185
Provision (a)(2) of Rule 807 is a restatement
of the general evidentiary rule that evidence must be rel-
evant.186
Provision (a)(4) effectively restates Rule 102.187
Admission of Morrison’s statements would have served
the interests of justice as Rule 3.8 of the Utah Rules of
Professional Conduct states that the prosecutor’s duty is
to seek justice and not just win.188
This should hardly be
a contested point.
These two general evidentiary rules must be met for any
evidence proffered hearsay or not, thus we are left with
three additional substantive requirements for evidence to
be admitted under the residual hearsay exception.
The first requirement of Rule 807 is that the proffered
statement have “equivalent circumstantial guarantees of
trustworthiness.”189
The Utah Court of Appeals has given
guidance on factors establishing circumstantial guarantees
of trustworthiness:
[A] court should examine, among other factors: (1)
the probable motivation of the declarant in making
the statement; (2) the circumstances under which
it was made; and (3) the knowledge and qualifica-
tions of the declarant….[W]e have identified sev-
eral additional factors that may be considered…:
(1) the character of the declarant for truthfulness
and honesty and the availability of evidence on the
issue; (2) whether the [statement] was given volun-
tarily, under oath, subject to cross examination and
a penalty for perjury; (3) the extent to which the
[declarant’s statement] reflects his personal knowl-
edge; (4) whether the [declarant] ever recanted his
[statement]; and (5) whether the declarant’s state-
ment was insufficiently corroborated.190
These are of course factors and, as such, “neither exhaus-
tive nor necessary prerequisites for admissibility” under the
residual hearsay exception.191
Therefore the determination
is more akin to a totality-of-the-circumstantial guarantees
of trustworthiness inquiry, reviewable of course for abuse
of discretion.
The first factor is the probable motivation of the declar-
ant. No logical evidence exists showing that Morrison was
inventing his fears. The fears were real. If anything, Mor-
rison was giving a guide to who should be interrogated
in the likely event of his death. It could be argued that,
unlike the rationale underlying the statements against
interest exception, Morrison stood to gain by identify-
ing his potential killers,192
by sharing these fears in the
circumstance he was foreseeing. That post-mortem justice
would somehow, abstractly, be to his benefit. However,
11. SPRING 2015 41
in the event of Hardy’s disclosure, Morrison foresaw that
he would have and, as history proves, actually did lose in
the most ultimate sense.
Second, the circumstances under which the statements
were made indicate that Morrison was consistent. Mor-
rison spoke to his police captain, his neighbor, a respected
news reporter and his wife. Multiple individuals, on
multiple occasions were told the same story about the
September holdup man, previously arrested by Morrison,
living in the neighborhood and biding his time before
finally killing Morrison.
Third, Morrison had better personal knowledge about
the identity and motivations of the killer than anybody
else. Although Merlin Morrison tragically died on January
10th, 1914, John Morrison was the only one who observed
and was an active combatant in all three hold-ups. He had
his personal recollection of his police career, all of the men
he arrested, and those who held grudges. If anybody knew
where the threats originated, it was Morrison.
In terms of the other factors the Utah Court of Appeals
instructs us to analyze today, most point towards the
trustworthiness of Morrison’s declaration. First, Morrison
was a highly involved and politically active citizen of Salt
Lake City. He lived a life of conservative moderation,
working hard, saving, and providing for his family. There
is little to indicate that his reputation was anything other
than somebody who provided truth and veracity. Second,
although the statements were not under oath, subject to
cross-examination, and a penalty for perjury, nothing
indicates they were involuntary. In fact, he seemed to
be speaking quite widely and freely about the situation.
Third, the statements reflect Morrison’s observations of
the individuals visiting his store every day and his per-
sonal knowledge of the individuals he arrested while on
the police force. Finally, far from recanting his statement,
Morrison seemed to corroborate his own statement with
many people subsequent to whichever account was first.
Although Hill’s attorneys only called Downing, they could
have called Morrison’s wife, police chief Hemple, and pos-
sibly Morrison’s neighbor to corroborate the statement.
Next, Rule 807 requires the proffered statement be
“more probative on the point for which it is offered than
any other evidence that the proponent can obtain through
reasonable efforts.”193
Downing’s testimony among other
similar testimony was not only the most probative, it was
the only evidence available to show Morrison’s fears. We
see no historical evidence of a diary or any other record-
ing that Morrison kept of such fears. While the defense
theoretically could have produced records of Morrison’s
arrests, this would only have proven that he had a rogues
gallery of potential enemies. The evidence would stop
short of showing that the situation was grave enough to
produce legitimate fear of particular harm in Morrison.
The final requirement of Rule 807194
would be met by
Hill’s attorneys providing adequate notice.
In addition to each of these factors pointing in favor
of admissibility, the “near miss” rule states “that failing to
qualify under an enumerated exception does not disqualify
admission under the residual exception.”195
This is by
virtue of Rule 807’s language “that it applies even if ‘the
statement is not specifically covered by’ any of the specific
exceptions.”196
The fact that it fails the dying declarations
exception’s immediacy standard197
is not determinative.
As a final note, this evidence was proffered by the defense
as exculpatory. “[T]he Sixth Amendment[] guarantee[s]
that, ‘[i]n all criminal prosecutions, the accused shall enjoy
the right…to be confronted with the witnesses against
him.’”198
Therefore, there would be no confrontation
clause issue caused by the inability to cross-examine Morri-
son.199
We would all agree that Morrison would have much
preferred to have been available to be cross-examined.
IV. Readers as Jurors: Reliable
Evidence in History
While it may be tempting to attempt to discern the precise
sequence of facts, circumstances, and events when giving
an account of an historical topic, any historian must con-
cede that this is an exercise in futility. Much the same as
the facts presented at a criminal trial, the record is going
to necessarily be incomplete, with conflicting evidence
and testimony, without possibility to reconcile it all into
one linear account. Therefore, it makes little sense that we
should deny readers of history—what could casually be
referred to as a historian’s jury—any evidence that has its
own circumstantial guarantees of trustworthiness. While
a historian very well may have particular training in the
discipline, the weight and veracity of claims should be
weighed in the minds of knowledgeable historians. By
submitting such evidence to a jury of academic peers, we
approach a closer understanding of “truth.”
An analysis similar to the law’s Rule 807 can be used effec-
tively in the discipline of history to evaluate the conflicting
claims of truth in the Hill case. During the Vietnam era,
including the civil rights movement, professional historians
werefacedwiththeuseofideologyintheirinterpretationsof
the past.200
Some denied that there was a place for ideology
in objective history.201
Others believed that the primary use
of history was propagandizing their ideological beliefs.202
These fractures lead to epistemological disputes over how a
historian could reliably accept evidence of the past.
12. LABOR LAW JOURNAL SPRING 201542
JOE HILL ONE HUNDRED YEARS LATER: THE CASE FOR RELIABLE HEARSAY NEVER DIED
This conflict is found in the Joe Hill historiography.
Many of the writers are communist or socialist.203
They
select and emphasize evidence supporting the notion of
class struggle by the workers. Wallace Stegner’s204
Joe Hill
book seems to fall within the “national consensus” school
of thought that avoided class distinctions.205
Stegner con-
cluded that Hill was guilty.206
This view was vehemently
opposed.207
Prior to publishing his book, Stegner asserted
this belief in an article in The New Republic.208
The New
Republic was subsequently picketed by the remnants of
the I.W.W.209
Within the Joe Hill historiography in particular, we
find contradictory conclusions reached by ideological
historians regarding two pieces of historical hearsay. So-
cialist authors have found Dr. Vernon Jensen reporting
that Dr. Frank McHugh told him that Joe Hill confessed
to the crime, unbelievable. On the other hand, the report
of Hilda Erickson, exonerating Hill, conformed to their
ideological predilections. Those who think Joe Hill was
guilty pointed to the inverse testimony as true.
There are better tools than ideology to evaluate these
conflicting truth claims in the Joe Hill case. In fact, the
reliability factors are the same as in Rule 807 set out above.
However, additionally, because these statements are hear-
say within hearsay, and a public controversy, not only the
original declarant’s statements should be considered but
also the reliability of the reporter.210
The reporter’s motiva-
tion, the circumstances of the statement, the knowledge
and qualifications of both the person telling the story and
the person repeating the story, their reputations for truth
and veracity, the voluntary nature of the statements, and
any later recantation should all be taken into consider-
ation. The historian’s counterpart to the legal standard of
materiality should be satisfied by examination of how well
the stories comport with the known and reported facts.
A. Dr. Frank McHugh’s Statements Have
Indicia of Reliability
Notwithstanding the labor vitriol, Frank McHugh was a
medical doctor who served the Salt Lake City community
with great devotion. A native of Louisville, Kentucky
and a graduate of the University of Louisville Medical
School, Dr. McHugh was in Salt Lake City by the time
of his 1910 marriage.211
The McHugh family was mildly
political. Mrs. McHugh was the Socialist Candidate for
Superintendent of Public Instruction in the 1912 Elec-
tion.212
After the Joe Hill trial, Dr. McHugh did not follow
Socialist pacifism but joined the Army in World War One.
213
The McHugh’s chief interests were Salt Lake society.
Mrs. McHugh was constantly in the weekly social articles
of the newspapers. She further strayed from her socialist
connections. During World WarTwo, Mrs. McHugh was
director of rationing in Salt Lake City.214
At the time of
his death, McHugh was a Mason. In Utah, Masons were
not Mormons but McHugh spoke at Mormon gatherings
reported in the press.215
He was also a “Kawanis” and a
charter member of the “Speech Reader’s club.”216
Professionally, Dr. McHugh was President of the Utah
State Medical Association, The Salt Lake County Medi-
cal Society, the Utah Oto-Ophthalmological society, the
Salt Lake Visiting Nurse Ass’n and the Executives Assn.217
In sum, Dr. McHugh was an upstanding citizen with a
spotless civic record. There is no indication that he had a
reputation for dissembling.
The second factor is the circumstances of the statement.
We know that at the least, Dr. McHugh told the story of
Joe Hill’s confession of guilt to a Utah Supreme Court
Justice and Vernon Jensen, the foremost professor of in-
dustrial relations in the post-World WarTwo era.218
Jensen
did not hide the McHugh story, but published it twice.219
McHugh’s detractors claim that Joe Hill’s confession
of guilt could not be true because McHugh testified at
trial and did not mention the confession. There is much
speculation by those who have not tried cases as to why Dr.
McHugh did not testify as to Hill’s alleged confession.220
It is true that a witness cannot testify to questions not
put to him, but there is a better and stronger explanation
based upon effective trial advocacy.
Elmer Leatherwood, the district attorney would have
been preparing a rebuttal case—as any diligent prosecutor
would have—in the event that Joe Hill took the witness
stand and testified as to his innocence. McHugh was
willing to turn Joe Hill over to the authorities.221
With
his spotless civic record, there is no discernable reason
McHugh would not have testified to the confession if
called upon rebuttal. McHugh’s testimony of Hill’s confes-
sion meets an evidentiary standard of reliability.
B. Hilda Erickson’s Statements Have
Indicia of Reliability
The testimony of Hilda Erickson also meets the threshold of
reliability.InHilda’scase,thehearsaycamefromJoeHill.Joe
Hill told her that his friend Otto Applequist had shot him in
a rage over Hilda’s affections.222
Reliability is established by
the strength of provable connections with Joe Hill and her
reactions to those connections. Reliability is also established
bythefactualconnectionsdrawnbycontemporaryobservers
that Hilda was the woman Joe Hill sought to protect.
Hilda E. Erickson was born in Missouri in 1894. She
was the daughter of “Bettie” Eselius Erickson Olson. As
13. SPRING 2015 43
such she was the sister of accused Joe Hill accomplice,
Robert (“Bob”) Erickson. She was also the niece of Ed-
ward, Carl, Charles and John Eselius, Joe Hill’s I.W.W.
friends with whom Hill was staying and was captured.
She, therefore, had opportunity to converse with Hill and
given her statement, reason to do so.223
Alone among Joe Hill’s acquaintances, Hilda Erick-
son was present at the most important juncture of the
Hillstrom trial. In the third day of evidence, while the
State Chemist was on the witness stand, Joe Hill fired
his lawyers. In the reported opinion, Justice Straup said
that Hill was given the opportunity to consult with “his
friends.”224
However, the friends prominently included
Hilda. The Salt Lake Telegram records:
Forty-five minutes were required to untangle the
difficulty precipitated by Hillstrom when he or-
dered his attorneys to leave the courtroom. Hill-
strom returned to the courtroom after he had held
a fifteen minute conference with Hilda Olson
[sic].225
It is intimated that she is the mysterious
woman mentioned by Hillstrom after his arrest.226
The Tribune also recorded this incident:
A recess was taken at this juncture and Hillstrom,
his attorneys, and two friends of the defendant,
said to be I.W.W. members, went into conference
in the judge’s chambers. A moment later a woman
was ushered in. She was said to be Hilda Olsen
[sic] a sweetheart of Hillstrom’s. Her appearance
created a furor[] in view of the story told by Hill-
strom that he received his wound in a fight over
a woman and that he would not reveal her name.
Others said that this was not the one in question
but that this one had been called in in an attempt
to have Hillstrom come to an understanding with
his attorneys.227
After conviction, the newspapers record that Hilda was
the most consistent of Joe Hill’s Salt Lake supporters. For
example in August 1915, the authorities suspected a prison
breakout.228
They took extra precautions including putting
Hill in solitary confinement. “Repeated efforts to visit and
talk with Hillstrom have been made according to prison
officials by Hilda Erickson, a woman member of the In-
dustrial Workers of the Women. Hillstrom belongs to this
organization, the members of which have written hundreds
of letters to Governor Spry. The Erickson woman figured
conspicuously in the investigation of the movements of
Hillstrom prior to his arrest, January 13, 1914.”229
Shortly before his execution, Joe Hill was visited by the
I.W.W. leader, Elizabeth Gurley Flynn. This occasioned
the song “Rebel Girl.”230
Flynn gave Hill a postcard with
a picture of her and her son on a pony. In one of his last
letters, Hill wrote Flynn and told her that he had given
the postcard to Hilda. Indeed, the only piece of property,
Hill owned at his death was the postcard.231
A Utah funeral was held for Joe Hill.232
The pallbearers
were six young women, dressed in white with revolution-
ary red sashes.233
Prominently included was Hilda Erick-
son234
The authorities suspected familial complicity in the
Joe Hill story even after his execution.235
In December
1916, a bomb was found at Governor Spry’s home.236
The first and primary suspects were Hilda Erickson’s broth-
ers and her Eselius uncles.237
There are weaknesses in Hilda’s story. The truth claim
was personal to her as the Eselius brothers lived in Mur-
ray into the 1950’s without telling the story. The same is
true of her brother, Robert Erickson. More importantly,
it appears that the lawyers did not know of the story.238
Frank Scott said that he did not know who Hilda was
and the appellate lawyer, Judge Hilton consistently asked
the “community for new evidence.”239
Hilton never let
a labor client go to his death. It is hard to believe that if
Hilton knew the truth, he would not have prevailed upon
Joe Hill and Hilda to give the further evidence the com-
mutation board required. If Joe Hill testified, his lawyers
might have been able to support the testimony concerning
Applequist, Hilda, and Joe.
A true Hilda story also implies callousness by Union
officials or at least Elizabeth Gurley Flynn. Flynn knew of
Hilda and knew of her importance to Joe Hill. Yet, Flynn
offered a reward of $500 for new information as to the
Morrison killings.240
Finally, there are the motivations of Joe Hill and Hilda,
herself. They both knew that keeping the secret would lead
to his death. There is no evidence that Joe Hill suffered
anything other than situational depression. A week before
his death, he told the press that he was going to Mars to
organize the canal workers for the I.W.W.241
It is hard to
distinguish between a willful martyr in this situation and
a man who had merely come to terms with his end. Most
importantly, if Hill was in fact Hilda’s paramour, why
would Hilda let him go to a needless death?
Nevertheless, the Hilda Erickson hearsay testimony
meets the requirements of reasonableness and reliability.
Assuming competent counsel, all of the weaknesses of
the McHugh and Hilda stories would have been subject
to cross-examination. It is hard to guess what a 1914
jury would have thought of the conflicting stories. The
question, however, is what do we think of the stories one
14. LABOR LAW JOURNAL SPRING 201544
JOE HILL ONE HUNDRED YEARS LATER: THE CASE FOR RELIABLE HEARSAY NEVER DIED
hundred years later? McHugh’s character is unimpeach-
able. Hilda’s connection with Joe Hill and the case at
important junctions in time, together with the contem-
porary belief that she was the woman involved with Hill
make her story believable. Reliable hearsay can contradict
other reliable hearsay in the same manner that reliable
scientific testimony may be contradictory. Juries, formal
and informal, resolve these questions of fact.
V. Going to Mars: A Conclusion
“I expect to take a trip to the planet Mars, and if so,
will immediately commence to organize the Mars ca-
nal workers into the I.W.W.”242
Scholars can say—and have said—what they may of the
likely factual innocence or guilt of Joe Hill. In a court of
law, it doesn’t matter, though. In this article we dare to say
that reasonable doubt would surely have been introduced
into the minds of the jurors by the admission of Mor-
rison’s fears of vengeance. True as it may be that proof of
Joe Hill’s factual innocence would have been impossible
to marshal, that is not the American burden of proof to
avoid criminal conviction.
The day before his execution, Joe Hill instructed “[D]
on’t waste any time in mourning—organize.”243
Those of
us among the ranks of lawyers, judges, and law professors
don’t tend to participate in the slow-downs or general
strikes of the I.W.W., but what we do is push the law
forward in a court of law every day. A more nuanced and
in-depth consideration of proffered evidence otherwise
barred under the hearsay rule may not be a revolution
Joe Hill ever considered. However, it is where we can
make progress.
Our evidence code as it stands seems to be a ubiquitous
monolith of procedure. General uniformity from federal
down to state courts tells us it is unlikely that we will re-
ceive a fully rewritten evidence code—nor do we propose
such a monumental undertaking. However, the code as it
stands gives us one way in which to introduce justice into
our courts. Utah lawyers should take this as notice to revisit
the residual hearsay exception, and judges should revisit
the depth in which they analyze seemingly inadmissible
hearsay. In the end, our legal heritage is one of common
law hearsay precedent, and Congress has kept that intact
with Rule 607. Changing the status quo of evidentiary
review in Utah may seem daunting, but Hill wishes us luck:
My will is easy to decide,
For there is nothing to divide,
My kin don’t need to fuss and moan—
“Moss does not cling to a rolling stone.”
My body? Ah, if I could choose,
I would to ashes it reduce,
And let the merry breezes blow
My dust to where some flowers grow.
Perhaps some fading flower then
Would come to life and bloom again.
This is my last and final will.
Good luck to all of you,
JOE HILL.244
ENDNOTES
1
EARL ROBINSON, JOE HILL (Smithsonian Folkways
1957).
2
Hillstrom Will be Shot at Sunrise at State Prison,
THE SALT LAKE TRIBUNE, Nov. 19, 1915, at 1, avail-
ableathttp://udn.lib.utah.edu/cdm/ref/collection/
sltrib29/id/49538.
3
State v. Hillstrom, 150 P. 935, 937 (Utah 1915)
4
Compare I.W.W. SONGS TO FAN THE FLAMES OF
DISCONTENT, A REPRINT OF THE NINETEENTH EDITION
(1923) OF THE FAMOUS “LITTLE RED SONG BOOK” 9
(2007 Charles H. Kerr Publishing Co.)(hereinafter
LITTLE RED SONG BOOK) with, e.g.,The Fair Labor
Standards Act of 1938, Pub.L. 75–718, ch. 676, 52
Stat. 1060, June 25, 1938, 29 U.S.C. §§ 201–219
(establishing the federal minimum wage); Adam-
son Act, Sept. 3, 5, 1916, ch. 436, 39 Stat. 721, 45
U.S.C. §§ 65, 66 (repealed 1996) (mandating an
eight-hour workday, with additional pay for over-
time,for railroadworkers.Thiswasthefirstfederal
law regulating the hours of workers for private
companies enacted in 1916,theyear afterJoe Hill’s
execution.);Wilsonv.New,243U.S.332(1917)(up-
holdingthe constitutionalityoftheAdamsonAct).
But see Utah Const. art. XVI, § 6; Holden v. Hardy,
169U.S. 366, 397–398 (1898) (both showing that
theUtahConstitutioncontainedprogressive,labor-
friendly clauses before any IWW influence.)
5
GIBBSM.SMITH,JOEHILL98(PeregrineSmithBooks
1984) (“Thedefense[wished]to produce evidence
that Joe Hill had no known motive for killing Mor-
rison but that there were other persons known to
Morrison who had considerable provocation to
seek revenge. They called Hardy K. Downing, an
ex-newspaper reporter, to testify concerning his
interview with Morrison after [a prior] September
1913 attack. District Attorney Leatherwood ob-
jected to his testimony, and the court sustained
the objection.”)
6
Id.
7
See id.; Hillstrom MakesAttack on State, SALT LAKE
TRIBUNE, June 24, 1914, at 14, available at http://
udn.lib.utah.edu/cdm/compoundobject/collection/
sltrib29/id/59811/rec/46.
8
See infra Part III.A.
9
UTAH R. EVID. 807; FED. R. EVIDENCE 807.
10
Cf G. & C. Merriam Co. v. Syndicate Pub. Co., 207
F. 515, 518 (2dCir. 1913) (creating a hearsay excep-
tion, where no express authority prescribed one,
twoyears priorto Hill’s execution. “I…mustdecide
thequestion upon principle. Ithinkto reject such a
statement is to refuse evidence about the truth of
whichnoreasonablepersonshouldhaveanydoubt
whatever, because it fulfills both the requisites of
an exception of the hearsay rule, necessity and
circumstantialguarantyoftrustworthiness.”); Baird
v. Denver & R. G. R. Co., 162 P. 79, 83 (Utah 1916)
(recognizing that admitting hearsay evidence fall-
ing outside of any exception is nonetheless harm-
less error when competent evidence established
the samefacts and no contradictory evidence was
introduced.) Seealso, JOHN H. WIGMORE, WIGMORE
ONEVIDENCE§8c(3ded.1940)(“WhattheHearsay
Rule implies— and with profound verity—is that
15. SPRING 2015 45
all testimonial assertions ought to be tested
by cross-examination, as the best attainable
measure; and it should not be burdened with the
pedantic implication that they must be rejected
as worthless if the test is unavailable.”)
11
Seegenerally, LOUGEE, supranote * (discussing in
detailthemanyerrorsofHill’sattorneys.Kenneth
Lougee presented an overview of the Hill case to
the Labor and Employment section of the Utah
Bar on the 95th anniversary of Hill’s execution.
Lougee then expanded that speech into a book.
In the book, Lougee argues that a primary cause
of Hill’s conviction and execution was the inepti-
tude of his trial lawyers and the arrogance of his
appellate lawyer).
12
This article does not imply that insufficient
information was introduced to support an infer-
ence of guilt. See, Stephan J. Markham & Paul G.
Cassell,Note,ProtectingtheInnocent:AResponse
to the Bedau-Radelet Study, 41 STAN. L. REV. 121,
137–38 (1988); Dale A. Nance, Adverse Infer-
ences: Restructuring Judicial Roles for Responding
to Evidence Tampering by Parties to Litigation,
B.U. L. REV. 1089, 1146 (2010). See also, State
v. Bishop, 753 P.2d 439, 451 (Utah 1988), over-
ruled on other grounds by Ross v. State, 293 P.3d
345 (Utah 2012); State v. Matteri, 225 P.2d 325,
331–32 (Utah 1950).
13
SeegenerallyUTAH R. EVID. 807; FED. R. EVIDENCE
807; infra Part III.C.
14
State v. Hillstrom, 150 P. 935, 942 (Utah 1915)
(“The state, as in all other criminal cases, was
required to prove the defendant’s guilt beyond
a reasonable doubt. But the defendant, without
some prooftendingto rebutthem, may not avoid
the natural and reasonable inferences deducible
from provenfacts by merely…remaining silent.”)
15
It is beyond the scope of this article to give a
full discussion of the lives Joe Hill and John G.
Morrison, and discuss the myriad mistakes in
the Joe Hill trial. Rather, the historical account in
this article is to inform and provide background
to those yet unfamiliar to the Joe Hill case. For a
more full discussion of the Joe Hill case see, e.g.,
SMITHsupranote5,20–22(PeregrineSmithBooks
1984); LOUGEE, supra note *.
16
SMITH supra note 5, at 20–22, at 43 (internal
citations omitted).
17
See SMITH supra note 5, at 20–22; see also Joyce
Kornbluh, IntroductiontoGIBBS M.SMITH,JOE HILL
1–4 (Peregrine Smith Books 1984) (founded in
1905,the I.W.W. soughtto combine craft, skilled,
andunskilledlaborunionsinto“OneBigUnion.”);
id. at 4 (“Any wage earner could be a member of
the new organization, regardless of occupation,
race, creed, or sex. It made no difference to the
I.W.W. if he were black or white, American or
foreign born.”)
18
See generally, LITTLE RED SONG BOOK supra note
4.
19
See SMITH supra note 5, at 17–19.
20
Id. at 18.
21
Id. at 16 (“Hill wrote the music for his lyrics in
only a few instances, usually setting his words
to popular tunes of the time (1900-1915) or to
familiar gospel and revival hymns.”); Id. at 23
(“Songs became a distinguishing element of
I.W.W.-supported strikes. Strike songs infused
heterogeneous groups of workers with a sense
of unity and solidarity.”); Id. at 20 (“The first Joe
Hill song to be published in the I.W.W. songbook
was ‘The Preacher andtheSlave,’which appeared
inthethird edition in 1911.A parodyoftheSalva-
tion Army hymn ‘In the Sweet Bye and Bye,’ the
song is an attackonthe street corner mission and
SalvationArmy preacherswhowere prevalenton
skid road in Hill’s time. He satirizes the preachers
who told ‘working stiffs’ to accept their lot in life
sothey couldqualifyfor ‘pie inthe skywhenthey
die.’” (internal citations omitted)).
22
HOWARD ZINN, A PEOPLE’S HISTORY OF THE UNITED
STATES,1492–PRESENT334(2005HarperPerennial
Modern Classics).
23
See SMITH supra note 5, at 43–62 (detailing
the conflicting accounts of Hill’s life and travels
through the United States).
24
Id. at 57.
25
Id. 43 (citations omitted).
26
JoelEmanuelintheSweden,IndexedBirthRecords,
1860–1941, ANCESTRY.COM (last visited Jan. 14,
2015)(on file with author). But see, id. at 47 (an
alleged cousin of Hill “said Hill was born in Gävle
in 1882”.)
27
Joel E. Hägglund in the Swedish Emigration Re-
cords,1783–1951,ANCESTRY.COM (lastvisitedJan.
14, 2015)(on file with author); Paul E. Hägglund
in the Swedish Emigration Records, 1783–1951,
ANCESTRY.COM (last visited Jan. 14, 2015)(on file
with author)(both emigration records showing
Joe and his brother, Paul arriving in New York on
the same day).
28
SMITH supra note 5, at 48.
29
Id. at 48, 49–50.
30
Person Details for Joseph Hillstrom in Household
of Charles H. Johnson, “United States Census,
1910”,FAMILYSEARCH,www.familysearch.org/pal:/
MM9.1.1/M2PW-H5W (Sept. 21, 2014).
31
SMITH supra note 5, at 52; seealso, LOUGEE supra
note * 1–2 (Joe Hill “consistently use[d] hisUnion
localnumberinhissongs.InCaseyJonestheUnion
Scab we find ‘Angels Union 23.’”)
32
Id.at 50–56 (placing Hill in an uprising in Mexico,
in the Hawaiian Islands, and in Yale, British Co-
lumbia.).
33
Id. at 24–26.
34
Emma Lazarus, The New Colossus (1883),
poeminscribedatthebaseoftheStatueofLiberty
comparingtheColossusofRhodesandtheStatue
of Liberty, available at http://www.libertystate-
park.com/emma.htm. (“’Keep, ancient lands,
yourstoriedpomp!’criesshewithsilentlips.‘Give
me your tired, your poor, your huddled masses
yearning to breathe free, the wretched refuse of
your teeming shore, send these, the homeless,
tempest-tost to me, I lift my lamp beside the
golden door!’”).
35
SMITH supra note 5, at 57
36
LOUGEE supra note * at 21
37
Id.
38
SMITH supra note 5, at 62
39
Id. at 63 (“Joe Hill left San Pedro, California, late
in the summer of 1913…and continued as far as
Salt Lake City, Utah. In Salt Lake City his journey
was delayed for two years, but he eventually ar-
rivedinChicagoinNovember1915—theoccasion
being his funeral.”)
40
Person Details for John G. Morrison, “Utah, Salt
Lake County Death Records, 1849-1949), FAMI-
LYSEARCH, https://familysearch.org/pal:/MM9.1.1/
NQHD-5RW (Sept. 21, 2014).
41
State v. Hillstrom, 150 P. 935, 937 (Utah 1915)
42
SeeMorrisonFuneralAttractsHundreds,SALT LAKE
TRIBUNE,Jan.15,1914,at2,availableathttp://udn.
lib.utah.edu/cdm/compoundobject/collection/
sltrib29/id/4117/rec/248.
43
See Gordon & Mary Paulson Harrington, Utah
History Encyclopedia,Congregationalism inUtah,
UTAH EDUCATION NETWORK, available at http://
www.uen.org/utah_history_encyclopedia/c/
CONGREGATIONALISM_IN_UTAH.html (“In
March1866[Reverend]McLeodtraveledeastto…
testif[y] before the committees on territories in
Washington, D.C., and lectured in eastern cit[i]es
onthe alleged Mormon problem….McLeod reap-
peared in 1872, renewing his attackson Mormon-
ism and supportingtheGentile-organized Liberal
party….In October he began a sermon series on
thescandalsoftheMountainMeadowsMassacre,
polygamy, and other topics.”)
44
L.RexSears,PunishingtheSaintsforTheir“Peculiar
Institution”:CongressontheConstitutionalDilem-
mas, 2001 UTAH L. REV. 581, 648 (2001) (“Reed
Smoot…was chosen to represent Utah in the
United States Senate in 1902. ‘On the same day
and at the same hour’ that Smoot’s credentials
were presented to the Senate, ‘there was also
presentedandplacedonfileaprotestfromcertain
citizens of Utah, praying for an investigation into
the right of Reed Smoot to the seat,” because of
his high office in the [Mormon] Church. Smoot
was sworn in, but in January of 1904 the Senate
launched an investigation…that would last for
three years, and produce over 3,000 pages of
testimony and reports delving into the Church
heirarchy’s involvement in politics, polygamy,
and polygamous cohabitation.”)
45
Winning Ticket is Named by the American Party,
SALT LAKE TRIBUNE, Sept. 29, 1909, at 1, available
athttp://udn.lib.utah.edu/cdm/compoundobject/
collection/sltrib25/id/79891/rec/271.
46
Id. at 2.
47
Id.
48
David Cramer, Achieving Fairness inUnited State
Senate Succession Laws: A Uniform Proposal, 35
SETON HALL LEGIS. J. 443, 448–49 (2011) (“[T]he
common practice—dubbed the ‘spoils system’—
was for the winning public official to give nearly
all of the government jobs to loyal members of
his party.”)
49
See Murder Saturday Culmination of Series of
Bold Crimes, THE DESERET NEWS, Jan. 12, 1914,
at 2, available at The J. Willard Marriott Library,
University of Utah.
50
See SMITH supra note 5, at 71.
51
Sheets is Free onTechnicality, SALT LAKE HERALD 1
(Apr. 13, 1907).
52
Id.
53
See SMITH supra note 5, at 71.
16. LABOR LAW JOURNAL SPRING 201546
JOE HILL ONE HUNDRED YEARS LATER: THE CASE FOR RELIABLE HEARSAY NEVER DIED
54
Murder Saturday Culmination of Series of Bold
Crimes,THE DESERET NEWS,Jan. 12, 1914, at 2,The
J. Willard Marriott Library, University of Utah.
55
Id.
56
Id.
57
See SMITH supra note 5, at 71.
58
Morrison EstateValuedat $18,000,THE SALT LAKE
TRIBUNE, Jan. 23, 1915, available at http://udn.
lib.utah.edu/cdm/compoundobject/collection/
sltrib29/id/33652/rec/256.
59
SeePerCapitaIncomeintheUnitedStates:1880–
1910, STANFORD UNIVERSITY, http://web.stanford.
edu/group/spatialhistory/cgi-bin/railroaded/
gallery/interactive-visualizations/capita-income-
united-states-1880-1910(showingpercapitaper
state peryear);butsee, Kornbluhsupranote 17, at
8 (“In 1908, although a minimum of $800 a year
was necessary to support a family, half the adult
fathers earned under $600 and a quarter earned
under $400 a year.”)
60
See Real EstateTransfers, THE SALT LAKE TRIBUNE,
Aug. 30, 1911, at 5, available at http://udn.lib.
utah.edu/cdm/compoundobject/collection/
sltrib26/id/145543/rec/240; Morrison Estate
Valuedat$18,000,THESALT LAKETRIBUNE, Jan. 23,
1915, available at http://udn.lib.utah.edu/cdm/
compoundobject/collection/sltrib29/id/33652/
rec/256.
61
Real EstateTransfers,THE SALT LAKETRIBUNE, Aug.
30, 1911, at 5, available at http://udn.lib.utah.
edu/cdm/compoundobject/collection/sltrib26/
id/145543/rec/240.
62
HillstromtobeShotTodayatSunrise,THESALTLAKE
TRIBUNE,Nov.19,1915,at1(telegramfromJoeHill
to William D. Haywood), availableat http://udn.
lib.utah.edu/cdm/compoundobject/collection/
sltrib29/id/49538/rec/227.
63
State v. Hillstrom, 150 P. 935, 937 (Utah 1915)
64
Id. (internal quotations omitted).
65
Id.
66
WoundedManHeldasSlayer:MurrayPoliceArrest
Man Who Tells Odd Tale, SALT LAKE TRIBUNE, Jan.
14, 1914, at 1, available at http://udn.lib.utah.
edu/cdm/compoundobject/collection/sltrib29/
id/2131/rec/247.
67
Id.
68
Officers Winding Evidence About Hillstrom,
Wounded Suspect in MurderCase, SALT LAKETELE-
GRAM, Jan. 14, 1914, at 1, available at http://udn.
lib.utah.edu/cdm/compoundobject/collection/
tgm14/id/28092/rec/12.
SMITH supra note * at 70.
69
Hillstrom, at 938–39.
70
StoryoftheChaseAfterMurderer, SALT LAKETELE-
GRAM, Jan. 12, 1914, at 2, available at http://udn.
lib.utah.edu/cdm/compoundobject/collection/
tgm14/id/27613/rec/10.
71
SMITH supra note * at 70.
72
See Id. at 78. Although the streets in downtown
Salt Lake City have changed over the century,
Google Maps indicates that the distance from
the Morrison Store to the doctor’s office was ap-
proximately 3 miles. Gibbs M. Smith states that
it was 4.9 miles. Id. Based on the fact that the
trail of blood never connected from the vacant
lot to Dr. McHugh’s doorstep, it is probably not
an important calculation.
73
Id. at 73, 78.
74
State v. Hillstrom, 150 P. 935, 939 (Utah 1915).
75
Story Doubted, SALT LAKE TRIBUNE, Jan. 14, 1914,
at 2, available at http://udn.lib.utah.edu/cdm/
compoundobject/collection/sltrib29/id/2131/
rec/247.
76
See id. See HIllstrom, at 942 (implying that his
wound was unique to the crime, and any reason-
able person would have immediately sought
medical attention, thus coming to the attention
of authorities.)
77
Id. at 939.
78
Id.at941(Thechiefalibidefensepresentedtothe
trial court was that at about 11:30 PM a witness
saw two men about a mile west of the grocery
store. The taller man was lying on the ground
and groaned. The groaning man then boarded a
streetcar. The streetcar conductor thought the
man drunk. The man rode the car into the city.
The testimony was that the groaning man was
not Joe Hill. Utah Supreme Court Justice Straup
observed, in a comment that sounds vaguely
like the answer to an LSAT question, “[s]ufferers
may moan and groan from gunshot wounds. But
all who moan and groan are not shot.” Thus, the
proffered evidence proved little, if anything.).
79
Id. at 937.
80
Id. at 939.
81
Id.
82
Id. at 939–942.
83
Id.
84
Id. at 942.
85
Id. at 941.
86
Id. at 941–942.
87
Id. at 942 (emphasis added).
88
Id. (“The principal question presented is that of
sufficiency of the evidence.”).
89
See State v. Colwell, 2000 UT 8, ¶ 42.
90
Lougee supra note *, at 127; State v. Hillstrom,
150P.935,940(Utah1915)(“[C]redibility…w[as]
for the jury, not for us.”); id. at 942 (“[C]ounsel…
in effect have asked us to…place ourselves in
the jury box, weigh the evidence, determine the
credibilityofwitnesses,considertheiropportunity
and means of observation, and the reliability and
worthiness of their testimony, [and ask us] to
ignorethelawandusurpafunctionnotpossessed
by us.”).
91
State v. Hamilton, 2003 UT 22, ¶ 18 (internal
quotations omitted).
92
State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993)
(citations omitted).
93
State v. McNeil, 2013 UT App 134, ¶14.
94
Id. (Emphasis added).
95
Editorial Comment on Hillstrom Case, SALT LAKE
TRIBUNE, Nov. 19, 1915, at 1, available at http://
udn.lib.utah.edu/cdm/compoundobject/collec-
tion/sltrib29/id/85225/rec/228.
96
SeeSMITH supranote 5, at 71–73 (describingthat
revenge was the likely motive focused on by the
police investigation immediately after Morrison’s
murder.)
97
Holdups Kill Father and Son for Revenge, Twice
VictorinBattlewithBandits,GrocerShottoDeath
inThirdEncounter,THE SALT LAKETRIBUNE,January
11, 1914, at 1, available at http://udn.lib.utah.
edu/cdm/compoundobject/collection/sltrib29/
id/19311/rec/244.
98
Boy Recalls Tragedy, THE SALT LAKE TRIBUNE,
January 12, 1914, at 3, available at http://udn.
lib.utah.edu/cdm/compoundobject/collection/
sltrib29/id/23550/rec/245;butseeFormerSheriff
Helping,THE SALT LAKETRIBUNE, January 12, 1914,
at 3, available at http://udn.lib.utah.edu/cdm/
compoundobject/collection/sltrib29/id/23550/
rec/245 (“Mrs. Morrison said that she knew of
no one of whom her husband had spoken as an
enemy who might be dangerous. She recalled
the [previous] holdups in which her husband had
been, but said her husband had never considered
himself seriously endangered for his part in pro-
tecting himself.”).
99
Murder Saturday Culmination of Series of Bold
Crimes,THE DESERET NEWS,Jan. 12, 1914, at 2,The
J. Willard Marriott Library, University of Utah.
100
DisputeOverAmericanFlagisCauseofDowntown
Riot; Four are Shot: IWW Held as Gunman, THE
SALT LAKE HERALD, Aug. 13, 1913, at 1, availableat
http://udn.lib.utah.edu/cdm/compoundobject/
collection/slh12/id/55867/rec/225.
101
Id.
102
Twice Before had Defeated Holdups, THE SALT
LAKE TRIBUNE, January 11, 1914, at 9, available at
http://udn.lib.utah.edu/cdm/compoundobject/
collection/sltrib29/id/19311/rec/244.
103
Id.
104
Id.
105
Id.
106
Id.
107
Id.
108
SMITH supra note 5, at 72.
109
Id.
110
Id. at 73.
111
Id. at 73.
112
Id. (“Morrison hadoftendescribedthe banditsto
his wife and instructed her to have police ques-
tion a neighbor (who was never named publicly)
if anything happened to him.”)
113
Id. at 71.
114
DescriptionTallies,THESALTLAKEEVENINGTRIBUNE,
Jan. 11, 1914, at 9, availableathttp://udn.lib.utah.
edu/cdm/compoundobject/collection/sltrib29/
id/19311/rec/244.
115
Morrison Knew Enemy Wanted to Murder Him,
THE SALT LAKE EVENING TELEGRAM, Jan. 12, 1914,
at 1–2, available at http://udn.lib.utah.edu/cdm/
compoundobject/collection/tgm14/id/27613/
rec/10.
116
Id. at 2.
117
SMITH supra note 5, at 63.
118
Id.
119
Id.
120
Id.
121
Id.
122
Id.
123
See Id.
124
Id.
125
See Infra Part II.A.
126
SMITH supra note 5, at 94.
127
Cf. Id. (“reason[ing]…that the testimony was
based on a conversation with a man who was
17. SPRING 2015 47
no longer living.”)
128
See Infra Part III.C.
129
State v. Hillstrom, 150 P. 935, 943 (Utah 1915)
(Hill, with his signature wit, referring, to his de-
fense counsel as prosecutors.).
130
See e.g., Baird v. Denver & R. G. R. Co., 162 P. 79,
83 (Utah 1916).
131
JOHN H.WIGMORE,WIGMOREON EVIDENCE § 1420
(3d ed. 1940)
132
Id.
133
Joseph W. Rand, The Residual Exceptions to the
Federal Hearsay Rule: The Futile and Misguided
Attempt to Restrain Judicial Discretion, 80 GEO.
L.J. 873, 874 (1992).
134
Id. at 874–75 (quoting Edward J. Imwinkelried,
The Scope of the Residual Hearsay Exceptions in
theFederalRulesofEvidence, 15SAN DIEGO L. REV.
239, 243 (1978).
135
See generally, 207 F. 515 (2d Cir. 1913).
136
Id. at 517.
137
Id.
138
Id. at 518.
139
5 WIGMORE, EVIDENCE §1364, at 28 (Chadbourn
rev. 1974).
140
2 MCCORMICK ON EVIDENCE §244, at 177–78
(Broun Ed. 2013).
141
Laurence Tribe, Triangulating Hearsay, 87 Harv.
L. Rev. 957, 957 (1974).
142
UTAH R. EVID. 807; FED. R. EVIDENCE 807.
143
State v. Thompson, 2014 UT App 14, ¶ 35 (in-
ternal citations omitted) (internal quotations
omitted).
144
See e.g., BINDER supra note 146 at §1:10, at 25;
§8:1, at 259; §9:1, at 278; §10:3, at 314; §33:7, at
775(detailingafewofthemanytechnicalcaveats
to the enumerated hearsay exceptions).
145
UTAH R. EVID. 803(1); FED. R. EVIDENCE 803(1).
146
DAVID F. BINDER, HEARSAY HANDBOOK, 4TH §8:3,
at 268–69.
147
Lust v. Sealy, Inc. 383 F.3d 580, 588 (7th Cir.
2004).
148
Id.
149
Douglas D. McFarland, PresentSenseImpressions
Cannot Live in the Past, 28 Fla. St. U. L. rev. 907,
916 (2001).
150
UTAH R. EVID. 804(b)(2); FED. R. EVIDENCE 804(b)
(2).
151
BINDER supra note 146 at §34:4, at 790.
152
UTAH R. EVID. 807; FED. R. EVIDENCE 807.
153
Compare Id., with UTAH R. EVID. 802–806.
154
Supra MCCORMICK note 140, at §324, at 559.
155
Id.
156
G. &C. MerriamCo. v. Syndicate Pub. Co., 207 F.
515, 518 (2d Cir. 1913).
157
SupraMCCORMICKnote140,at§324.3,at578–79.
158
See id.
159
See, e.g., In re Winship, 397 U.S. 358, 363–64
(1970).
160
William S. Laufer, The Rhetoric of Innocence,
70 Wash. L. Rev. 329, 340–41 (1995) (“[T]he
presumption of innocence is not considered a
proxy for assuming the factual innocence of the
accused. On the contrary, as one treatise noted:
‘Whenwespeakofthepresumptionofinnocence,
we are not talking about a process of inference
following the establishing of a basic fact. Rather,
we are talking about a fundamental principle of
our criminal procedure which imposes a burden
on the prosecution of establishing the accused
guilt beyond a reasonabledoubt.’”); seealso id. at
334–35 (“Even though the requirement that an
accused demonstrate factual innocence became
inapposite following the abolition of ordeal and
other ancient modes of trials, rhetoric of the
importance of factual innocence remains in law
today…Courts, legal commentators, and the lay
public often mischaracterize dispositions of ‘not
guilty’ as findings of factual innocence.”)
161
In reWinship, 397 U.S. at 363–64.
162
See generally supra LOUGEE note *.
163
See supra Part II.C.
164
PHILIP S. FONER, THE CASE OF JOE HILL 38 (New
World Paperbacks 1975) (“The court refused to
allow…Hardy Downing, a newspaper reporter,
to testify that Morrison had told him that the
purpose of a previous holdup in his store ‘was
not to rob him but kill him.’”).
165
UTAH R. EVID. 801(c).
166
AnswerNotPermittedTHESALT LAKETRIBUNE,June
24, 1914, at 14, available at http://udn.lib.utah.
edu/cdm/compoundobject/collection/sltrib29/
id/59811/show/59803/rec/553.
167
Id.
168
UTAH R. EVID. 801(c).
169
Baird v. Denver & R. G. R. Co., 162 P. 79, 83
(Utah 1916) (recognizing that admitting hearsay
evidencefallingoutsideof any exception is none-
theless harmless errorwhen competent evidence
established the same facts and no contradictory
evidence was introduced.).
170
See BINDER supra note 146 at §47:1, at 1148–49
(one of the first iterations of what we now
consider the federal residual hearsay exception
appeared in Dallas County v. Commercial Union
Assur. Co., 286 F.2d 388 (5th Cir. 1961) where
the court approved introductionof a 58-year-old
newspaper accountof afire inthe courthouse. Id.
at 397. The court determined that the evidence
was exceptionally trustworthy because it was
unlikely that a newspaper would falsely report a
fire that occurred in public.) Fed. R. Evid. 807, as
we know it today, appeared in the 1997 amend-
ments. BINDER supra note 170 at §47:1, at 1149.
171
The “haphazard[]…appli[cation]” might have
something to do with how daunting the task
of assessing circumstantial guarantees of trust-
worthiness may seem to jurists. See Jeffrey Cole,
Residual Exceptions to the Hearsay Rule, 16 No. 1
LITIG. 26, 28–29 (1989).
172
Judge, U.S. Court of Appeals for the Seventh
Circuit;SeniorLecturer,UniversityofChicagoLaw
School.
173
United States v. Boyce, 742 F.3d 792, 802 (7th
Cir. 2014) (Posner, J. concurring).
174
JAMES BRADLEYTHAYER, A PRELIMINARYTREATISE ON
EVIDENCE AT THE COMMON LAW 520–21 (1898).
175
Cf DAVID E. STANNARD, SHRINKING HISTORY: ON
FREUD AND THE FAILURE OF PSYCHOHISTORY 14
(Oxford Univ. Press 1980) (“[Psycho-history]
reduces conscious ethical decision-making by
such diverse historical figures as Luther, Hitler,
Jefferson, Stalin, Ghandi and others to a crudely
mechanistic determinism rooted in ideas con-
cerning the psychopathology of everyday life.”)
176
SeegenerallyUTAHR.EVID.803–804;FED.R.EVID.
803–804.
177
Contra UTAH R. EVID. 803–804; FED. R. EVID.
803–804.
178
Contra UTAH R. EVID. 804(b)(2); FED. R. EVID.
804(b)(2).
179
AnswerNotPermitted,THESALTLAKETRIBUNE,June
24, 1914, at 14, available at http://udn.lib.utah.
edu/cdm/compoundobject/collection/sltrib29/
id/59811/show/59803/rec/553.
180
See Shepard v. United States, 290 U.S. 96, 99
(1933).
181
Id.
182
See U.S. v. Fernandez, 892 F.2d 976, 981 (11th
Cir. 1989) (in assessing grand jury testimony, the
courtcomparedthetestimonytotheotherexcep-
tions for unavailable witnesses in the evidence
code.)
183
Supra MCCORMICK note 140, at §324, at 568–69.
184
Id. (“The almost unanimous opinion of courts
is that failing to qualify under an enumerated
exceptiondoesnotdisqualifyadmissionunderthe
residual exception.”); but see id. at n. 43 (‘When
the precise failure of the statement to meet an
exceptioncorrespondswithanaffirmativeindica-
tionthatCongressdeterminedtrustworthinessto
be lacking, the failure of the statement to meet
the exception should…result in exclusion. Such
determinations are usually hard to make.”)
185
(a) In General. Under the following circum-
stances, a hearsay statement is not excluded y
the rule against hearsay even if the statement is
not specifically covered by a hearsay exception
in Rule 803 or 804:
(1) the statement has equivalent circumstantial
guarantees of rustworthiness;
(2) it is offered as evidence of a material fact;
(3)it is more probativeonthe pointfor which it is
offered than any other evidence that the propo-
nent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of
these rules and the interests of justice.
(b) Notice. The statement is admissible only if,
before trial or hearing, the proponent gives an
adverse party reasonable notice of the intent to
offer the statement and its particulars,…so
that the party has a fair opportunity to meet it.
UTAH R. EVID. 807; FED. R. EVIDENCE 807 (the
Utah rule is identical in language to the federal
rule).
186
CompareUTAH R. EVID. 807; FED. R. EVIDENCE 807,
withUTAH R. EVID. 401, 402; FED. R. EVIDENCE 401,
402.
187
CompareUTAH R. EVID. 807; FED. R. EVIDENCE 807,
with UTAH R. EVID. 102; FED. R. EVIDENCE 102.
188
Model Rules of Prof’l Conduct R. 3.8 cmt. 1
(2013).
189
UTAH R. EVID. 807(a)(1); FED. R. EVIDENCE 807(a)
(1).
190
State v. Webster, 2001 UT App 238, ¶ 27 (citing
United States v. Hall 165 F.3d 1095, 1110–11(7th
Cir. 1999)).
191
Id.
192
See generally UTAH R. EVID. 804(b)(3)(A); FED.
![SPRING 2015 31© 2015 BY KENNETH LOUGEE AND ADAM THOMAS PRITCHARD
KENNETH LOUGEE is an attorney at
Siegfried & Jensen. He received a M.A.
in History from the University of Utah
(1988), a J.D. from the University of Or-
egon (1981), and a B.A. in History, cum
laude from Brigham Young University
(1977). He is the author of Pie in the Sky;
How Joe Hill’s Lawyers Lost His case, Got
Him Shot, and were disbarred (2011).
ADAM THOMAS PRITCHARD is a J.D.
Candidate, University of Utah, S.J. Quin-
ney College of Law (2015) and received
a B.A. in History from the University of
Utah (2011).
Joe Hill One Hundred Years Later: The
Case for Reliable Hearsay Never Died
By Kenneth Lougee and AdamThomas Pritchard
With the 100-year anniversary of the execution of the labor song writer Joe
Hill in November 2015, the Labor Law Journal is pleased to feature the fol-
lowing article arguing that reliable hearsay provided powerful exculpatory
evidence for Hill that could have and should have been admitted under the
residual hearsay exception.
I dreamed I saw Joe Hill Last night
Alive as you and me
Says I, “But Joe, you’re [one hundred] years dead”
“I never died,” says he1
I. Introduction
On November 19, 1915, Joseph Hillstrom (“Joe Hill” or “Hill”) was executed
by firing squad in Salt Lake City, Utah.2
Hill was arrested, tried, and convicted
for the murder of a local grocer, John G. Morrison.3
As we approach the one hundred year anniversary of Hill’s death, we can say
that much has changed. Many of the labor reforms that Hill strove for have come
to fruition.4
However, some things—particularly in the application of evidentiary
rules—have not changed. Morrison’s own declarations, made shortly before his
murder, regarding who he feared was plotting to kill him, were ruled inadmissible
by trial judge, Morris Ritchie.5
Importantly from a hearsay analysis point-of-view,
the statements were going to be introduced through the testimony of a news-
paper reporter, Hardy K. Downing (Downing).6
Hill’s defense attorneys wished
to introduce the hearsay evidence of Morrison’s statements for the purpose of
impeaching Morrison’s character and painting him as a trigger-happy gunman.7
Through strict application of the rule against hearsay, otherwise reliable evidence
was barred from being weighed in the minds of the jury. The residual hearsay
exception was admittedly in its early life.8
However, Hill’s attorneys and Judge
Ritchie had the residual hearsay exception—now found in the Utah Rules of
Evidence 8079
—available to them10
and they did not use it. One hundred years
later, little has changed in Utah courts.](https://image.slidesharecdn.com/a479d2fd-67b1-4cf7-bf8f-80cc5fa5006f-150403110031-conversion-gate01/85/Labor-Law-Journal-Joe-Hill-Excerpt-1-320.jpg)
