Can a Parrot Testify?

Last Thursday in the remote county of Newaygo on the western side of Michigan, Glenna Duram was charged with the murder of her husband Martin Duram. Local police found the couple shot in their house. Martin had been shot and killed and Glenna was shot in the head but still alive. Also inside the home was the couple’s African grey parrot named “Bud.”

This is where it gets interesting. The case has been getting a lot of publicity (see here, here, and here) because the parrot, who is now being taken care of by the surviving family members, appears to be replaying an argument between Glenna and Martin that ends with “don’t f—ing shoot!”

Police records show that the couple had financial problems stemming from gambling and that Glenna had written several suicide notes. (As confirmed by handwriting analysis.) Add all these things up, and it seems like the couple got in an argument, Glenna shot her husband, and then attempted to kill herself. The prosecutor has told the local news station that he “hasn’t ruled out” using the parrot as a witness. Which begs the question, can he?

The answer is, of course, probably not. At least, the bird cannot testify as a witness in the traditional sense. Michigan Rule of Evidence 603 requires that “before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.”

This is a pretty standard rule that is repeated in the Federal Rules and in other state’s rules. See, e.g., Virginia Rule 2:603 available here. The rule itself assumes a level of consciousness that, I feel comfortable saying, we haven’t necessarily shown that a talking bird–even one as smart as an African grey parrot–would have. That is, it assumes that the witness can understand the importance of telling the truth in a court of law.

So is it possible to get that evidence before a jury? Maybe, and the expert testimony rules might be the key. Michigan Rule of Evidence 702, like it’s federal counterpart, allows experts to testify if the court determines that their scientific or specialized knowledge will assist the trier of fact to determine a fact in issue. The next rule, Rule 703 states that the “facts or data in the particular case upon which an expert bases an opinion or inference shall be in evidence.”

So what’s needed is an orinthologist (bird expert) that can testify to the habit or ability of African grey parrots to repeat and mimic conversations that they hear. If it’s the case that African grey parrots do tend to repeat conversations they hear–and I don’t know if that’s true since I’m not a bird expert, despite the fact that I have studied bird law–then the prosecutor can begin to make the case that the bird’s “testimony” should be admitted.

In essence, if the prosecutor can use an expert witness to show that the bird is replaying an incident, it observed then the bird can be proffered under the rules as a sort of “living tape recorder.”

Interestingly enough, this isn’t the first time that this has come up. In 1993, a California judge ruled that the spontaneous statements made by a different African grey parrot were not admissible. The difference, I believe, is that in the California case, the attorney simply tried to elicit the statements from the bird without setting up the proper foundation. Hopefully, the prosecutor in the Michigan case won’t make the same mistake.

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