Nelson Miller on an African Grey Parrot as a Witness in a Murder Trial
By Steve Thorpe
In 2015, Martin Duram of Sand Lake, Mich., was found dead from gunshot wounds in his home and his wife, Glenna Duram, 48, is in jail and accused of his murder. In a strange twist, the couple’s African Grey Parrot Bud may be used as evidence in the case after he kept repeating what could be a confrontation that led to the slaying. WMU-Cooley Law School Associate Dean and Professor Nelson Miller recently offered analysis about the bird serving as a witness, or even as evidence. 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.
Thorpe: Please give us a brief description of the case.
Miller: In People v Duram, Newaygo County Prosecutor Robert Sprinstead earlier this month charged Glenna Duram of Sand Lake, Michigan, with the murder of her husband Martin “Marty” Duram. Police found both Mr. and Mrs. Duram in the home, Mr. Duram dead by five gunshot wounds, and Mrs. Duram seriously injured with a single gunshot wound to the head, indeed so seriously that police initially took her for dead at the scene. Published reports indicate that Mrs. Duram left suicide notes to family members. The decedent Marty Duram’s ex-wife Christina Keller took possession of a 21-year-old African grey parrot “Bud” that she and Marty still co-owned. Two weeks later Bud, evidently a witness to the alleged murder, began repeating “Don’t f****** shoot!” in a manner that led Ms. Keller to believe that those were the last words of her ex-husband Marty. After some delay for investigation during which Marty’s parents complained publicly of no charge, the prosecutor filed the murder charge against Mrs. Duram, whom reports indicate claims no memory of the incident.
Thorpe: What do you find most interesting about the notion of a parrot witness?
Miller: Although nothing is funny about homicides and attempted suicides, people do find parrots peculiarly funny when they repeat the odd things that we say. For instance, published reports indicate that this parrot Bud is notoriously profane. (He also bit a reporter who interviewed his owner Ms. Keller, although biting would not be unusual.) Those reports also indicate some strife within the Duram marriage. The question that some have raised whether a parrot could testify that Marty’s last words were “Don’t shoot!” does present an entertaining if absurd proposition. Imagine trying to administer the oath: “Will you please raise your right wing and repeat after me?” [Parrot interjects:] “Don’t shoot! Don’t shoot!” [Defense counsel interjects:] Objection, Your Honor! The witness is already testifying!”
Thorpe: Some extravagant claims are made about the intelligence of parrots, but you find the assertions shaky, right?
Miller: Animal experts evidently say that African grey parrots have the intelligence of a dog or porpoise, up to that of a five-year-old child. Trial judges have allowed five-year-old children to testify, particularly in abuse cases. Children that young may not be able to understand and give the required oath to tell the truth, but as long as the child understands right from wrong, a trial judge may have the discretion to allow the testimony. Yet a parrot does not have human intelligence. It does not understand the meaning of the words that it mimics. If a parrot calls you a fool, then don’t take it personally. So no lawyer would ever offer a parrot’s testimony, and if one did, then no trial judge would ever let the testimony in. Just to state the obvious, research confirms no reported decision of a parrot ever testifying, although that doesn’t rule out one having done so in a court held in a bar in the Virgin Islands late on a Saturday night.
Thorpe: You imagine the prosecutor questioning the parrot and its responses. Share that with us.
Miller: Difficult, huh? Imagine trying to lay the foundation: “First, Bud, can you please tell us whether you were present at the scene? [Bud’s response:] Don’t shoot! Don’t shoot!” Then imagine defense counsel’s objection: “Your Honor, the parrot is now testifying without foundation! [Parrot interjects:] Don’t shoot! Don’t shoot! [Judge instructs the parrot to remain silent, whereupon parrot responds:] Don’t shoot! Don’t shoot!” Anyone who owns a talking parrot knows that a parrot in the courtroom, whether as witness or physical evidence, could quickly turn the trial into a circus. One doesn’t really control what a parrot says, and when the parrot is profane and excited, you don’t want a parrot in the courtroom.
Thorpe: You cite the difficulties posed by the Constitution’s confrontation clause in using a parrot as a witness. Explain.
Miller: Exactly. Think of it: the defendant would have no real opportunity to confront and cross-examine a parrot witness. Cross-examination might go as follows: Defense counsel inquires, “So, parrot Bud, where was your cage located at the moment of the shooting? [Response:] Don’t @*$&@ shoot! [Defense counsel interjects:] Your Honor, please direct the witness to answer the question. [Parrot interjects:] Don’t @*$&@ shoot! Don’t @*$&@ shoot! [Trial judge interjects:] Bud, you must answer the question, and I’m holding you in contempt for one more profane outburst. [Parrot responds:] Don’t @*$&@ shoot! Don’t @*$&@ shoot! [Trial judge interjects:] Bailiff, apprehend and remove the witness! [Parrot interjects:] Don’t @*$&@ shoot! Don’t @*$&@ shoot!”
The more interesting, although less entertaining, issues are whether a videotape of the parrot saying the decedent’s putative last words would be admissible as prosecution evidence. The parrot’s current owner, the ex-wife, could authenticate the videotape that she in fact made of the parrot repeating his now-famous words. (The BBC and London Telegraph have picked up the story, making Bud the bird heard ‘round the world.) An animal expert might possibly testify that the parrot could in fact have picked up the words from its now-dead owner’s last words at the moment of the crime. Experts appear, though, to hold the opposite, that parrots need to hear things more than once, that is, need repetition and coaxing. Then the prosecutor would have to defeat the challenge that someone in fact coached the parrot into the statement. If the parrot evidence overcame all of those problems, then relevance is the next issue. “Don’t shoot” would make more likely that the decedent saw it coming, but anticipation of the shooting isn’t necessarily an element, at least not of murder (although it would be of a civil assault). Interestingly, though, the decedent’s putative words “Don’t shoot” might tend to contradict a self-defense claim, which Ms. Duram has not made.
The point, though, is this: any prosecutor, who after all must prove the case beyond a reasonable doubt, who reaches for parrot evidence when they have abundant physical and circumstantial evidence is very likely undermining the case. When an investigator consults a medium or diviner for leads in a case, it creates doubt about the credibility of the entire case. Assistant Prosecutor Chris Darden’s idea of having O.J. try on the glove didn’t work so well, when Johnnie Cochran made it the glove not fitting his closing argument to acquit. Rule one in the prosecutor’s playbook is “Don’t do it, if you don’t know how it’s going to turn out.” Don’t call the parrot as a witness, and don’t offer the parrot as evidence. Doing so would undermine the whole case. The defense lawyer is hoping that the prosecutor does so.
Thorpe: What’s the link to the full blog post?
Miller: https://cooleylawschoolblog.com/2016/06/24/legal-analysis-when-can-a-parrot-be-considered-a-reliable-court-witness/
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