Blog author Nelson Miller is the Associate Dean and Professor at WMU-Cooley’s Grand Rapids campus. He practiced civil litigation for 16 years before joining the WMU-Cooley faculty. He has argued cases before the Michigan Supreme Court, Michigan Court of Appeals, and United States Court of Appeals for the Sixth Circuit, and filed amicus and party briefs in the United States Supreme Court. He has has many published books, casebooks, book chapters, book reviews, and articles on legal education, law practice, torts, civil procedure, professional responsibility, damages, international law, constitutional law, university law, bioethics, and law history and philosophy. He also teaches law classes on the Kalamazoo, Michigan campus of Western Michigan University.
Every couple years, we hear in the media about using a parrot as a witness in court. The most recent story features Bud the parrot who may have been a witness to his owner’s murder. According to the report, the parrot subsequently repeated, “Don’t f—— shoot!” The media asks whether Bud can be the prosecutor’s witness to his owner’s murder.
The short answer is no.
The long answer is “nothing is impossible.”
Another media story on a parrot witness reported an animal expert saying that the African grey parrot has a high intelligence for an animal, as high as a chimpanzee or porpoise, with the language skills of a two year old child and the cognition of a five year old. The last two assertions, though, are really meaningless. No parrot has the perspective of a human of any age, so the intelligence comparison doesn’t help.
Assuming just for the sake of argument that a parrot really did have age-five human intelligence, then on cognitive age alone, the parrot might just be able to testify. Statutes typically require witnesses to be able to swear or affirm to an oath, which means that the witness must be of an age and mental competence to recognize right from wrong. While five-year-old children may not recognize the purpose of an oath, courts have allowed them to testify (particularly to the one horrible question of their sexual abuse by an adult) when they appear to recognize right from wrong.
But again, lacking human perspective, parrots don’t give human meaning to the words that they mimic. A parrot who says “You’re a fool!” doesn’t really hold that opinion of you or anyone else, just as the parrot wouldn’t know the meaning of “Don’t shoot!” when ostensibly testifying that someone allegedly said it in a harrowing homicide.
So the better question than the parrot testifying is whether the parrot, including what the parrot repeated, could be evidence–not testimonial evidence but physical evidence like an audio recording. Again, the answer is probably not, although in a closer call.
An animal expert in one of the several reported parrot stories said that parrots usually require repetition to begin to mimic what they heard. The parrot evidence’s proponent thus would not have the foundation to assert that the parrot heard something once (like the “Don’t f—– shoot” of the recent homicide) and was repeating it reliably. A court might bar the evidence on that basis unless an animal expert could testify that the parrot could have learned and repeated a statement made just once or perhaps a few times quickly at the moment of the homicide.
But still, let’s play out the possibility that a parrot expert so testified that the parrot was probably reliably repeating what the parrot had heard on that single occasion. If a prosecutor had any chance of qualifying a parrot as a witness, then no prosecutor in his or her right mind would ever call a parrot as a witness.
Why? In practical terms, prosecutors have no chance of proving beyond a reasonable doubt any charge relying on the testimony of a parrot. Calling a parrot as a witness, or even using the parrot as audio evidence, would be like crime investigators who foolishly admit having consulted an astrologer, diviner, or medium for evidence of the crime. The defense lawyer would have the jurors laughing the parrot prosecutor right out of the courthouse. The prosecutor who calls a parrot as a witness would make an easy mark in the next election for a new prosecutor.
Also, the Constitution’s confrontation clause requires that the accused have the right to confront and cross-examine the witnesses against the accused. What chance does the defense lawyer have of cross-examining a parrot when the answer to every question would be the same? Talk about an unimpeachable witness!
Finally, the prosecutor would never get the parrot witness’s testimony into evidence in the first place. A witness’s proponent must first establish that the witness has a foundation for the witness’s testimony. In testimony based on eyewitness accounts, that foundation requirement means that the witness would first have to testify that they were at the scene to observe and testify to the crime.
Imagine the prosecutor’s foundation question: “So, parrot, were you present when the decedent was shot?” Parrot answers, “Don’t shoot!” Defense counsel interjects, “Objection! The parrot is now testifying without foundation!” Parrot interjects, “Don’t shoot!” Trial judges orders the parrot witness to be silent until the judge has ruled. Parrot interjects, “Don’t shoot!”
Nonetheless, and with tongue firmly in cheek, one can say that two different kinds of parrots have testified. The first are human witnesses named Parrott such as in one case Officer Kim Parrot, in another case marina owner Kirk Parrott, and in yet another case obstetrician Dr. Liboum Parrot. The other kind of testifying parrot is the witness whom the other side accuses of simply repeating someone else’s untruths.
So you’ll find a grain of truth in just about anything–even that to which the parrot testifies.
Steve Gruber Show http://stevegruber.podbean.com/e/tuesday-june-28-2016-hour-3-complete/
WJR Radio Detroit: Nelson Miller’s June 28 podcast starts at 38:20: http://www.wjr.com/the-big-story-with-marie-osborne/