EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, October 28, 2009

The Love Letter: Colorado Judge To Determine Admissibility Of Love Note From Ex-Boyfriend In Second Degree Murder Trial

A man allegedly shoots and kills his girlfriend and is charged with second-degree murder. In order to establish the man's motive for the shooting, the prosecution seeks to introduce a love note allegedly written to the girlfriend by an ex-boyfriend. Should the court admit the note, or should it exclude it as inadmissible hearsay? That's the question that a judge in Colorado is about to answer.

Justin Moore is the man alleged to have shot his girlfriend, and Adam Clark is the man who allegedly wrote the love note. The prosecution has indicated its intent to have Clark testify regarding the note, and "Judge Dave Williams said Tuesday there is precedent from case law very similar to the situation involved in Moore's second-degree murder trial that he thinks makes the note admissible." I'm not sure what precedent Judge Williams is referencing, but I think that he generally could be correct.

Colorado Rule of Evidence 801(c) defines hearsay as "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." It seems like the prosecution could legitimately claim that it is not using the note to prove the truth of the matter asserted in it -- that Moore still pined after his ex-girlfriend. Instead, the prosecution can claim that it is using the note to show its likely effect upon Moore. In other words, regardless of whether Clark was honest and/or accurate when he wrote the note, Moore, upon reading the note, would have every reason to believe the note's contents, causing strain upon his relationship and a possible motive for murder.

Of course, this all depends upon proof that Moore actually read the note, and the prosecution has not indicated whether Moore was aware of the note and its contents when his girlfriend was fatally shot. This thus seems to create a conditional relevance issue under Colorado Rule of Evidence 104(b), meaning that the prosecution would have to establish that a reasonable jury could find the conditional fact, that Moore had knowledge of the note's contents, by a preponderance of the evidence before the note could be admitted. Of course, the prosecution hasn't been entirely clear about the purpose for which it is offering the note, and defense counsel has not yet stated why he thinks that the note should be deemed inadmissible, so it is possible that the admissibility decision could hinge on other factors.



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