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Univ. of South Carolina School of Law

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Tuesday, January 17, 2012

Hearsay For Dummies: "The Good Wife" Episode "Bitcoin For Dummies" Badly Botches Hearsay Issue

I like "The Good Wife." I've written about it on this blog several times (see here, here, and here). I think that the show generally gets the law right more than most other legal shows. That certainly wasn't the case, though, with the show's most recent episode, "Bitcoin for Dummies," which contained the most egregious (non)application of the rule against hearsay that I've ever seen in a legal movie or TV show.

As the title suggests, the episode dealt with Bitcoin, described on its site as

an experimental new digital currency that enables instant payments to anyone, anywhere in the world. Bitcoin uses peer-to-peer technology to operate with no central authority: managing transactions and issuing money are carried out collectively by the network. Bitcoin is also the name of the open source software which enables the use of this currency.

In the episode, as in real life, the creator of Bitcoin -- Mr. Bitcoin -- is unknown, which creates a problem for returning guest star Bob Balaban and the Treasury Department, which wants to prosecute the creator for making an alternate currency. Jason Biggs (the guy who #@$!%# the pie), guest stars as an attorney who ostensibly represents the creator (and won't reveal his identity due to attorney-client confidentiality) and whom the Treasury Department charges in connection with Bitcoin either because it believes that he really created it or to smoke out the actual creator.

Lockhart/Garden's theory is the latter, and its investigator, Kalinda, gets a couple of Treasury Department flunkies to call their boss to the hotel of a cryptography convention to uncover the alleged actual creator. Kalinda then surreptitiously records Balaban's character, Gordon Higgs, as he says that he's looking for the real creator of Bitcoin, with the implication being that the Treasury Department doesn't really think that Biggs' character created it. This then leads to the following exchange the next day in court (at 39:48 of the episode):

Alicia Florrick: And he stated that he was looking for the real inventor of Bitcoin?

Gordon Higgs: Objection, your honor!

Judge Sobel: No, Mr. Higgs. You may answer.

Kalinda: Mr. Higgs stated that he believed I was on the right track to finding Mr. Bitcoin.

Alicia Florrick: And what was that right trrack?

Kalinda: Bao Shuwei, and econophysicist from Nankai University.

Gordon Higgs: Objection, this is all hearsay, your honor.

Kalinda: No, no, uh, I recorded it..by accident, I just got a new phone, and I didn't know how to turn it off.

Really? Federal Rule of Evidence 801(a)-(c) sets forth three definitions:

(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made the statement.

(c) 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.

Under these definitions, Higgs' statement was clearly hearsay, and it is irrelevant that Kalinda recorded it. Indeed, Federal Rule of Evidence 803(5) provides an exception to the rule against hearsay for "recorded recollections" such as audio recordings, making clear that such recordings are indeed hearsay. Higgs' statement would not qualify under this exception for a variety of reasons, but it could have qualified for admission under Federal Rule of Evidence 803(5), which provides an exception to the rule against hearsay for

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

In other words, the statement could have been admissible to prove Higgs' (and the Treasury Department's) belief that Biggs' character was innocent but not to prove that he was in fact innocent. And this is because Higgs' recorded statement was clearly hearsay, despite what the show led viewers to believe.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/01/i-like-the-good-wifeive-written-about-it-on-this-blog-several-times-seehere-here-andhere-i-think-that-the-show-generall.html

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Comments

Love the post & I too like the Good Wife. I think the entire Bitcoin episode was set in a series of preliminary hearings and not at trial. Thus, the response to the govt's HS objection should have related to whether the rules applied, not accidental recording.

Posted by: Wes Porter | Jan 18, 2012 7:15:14 AM

Hi Professor,

Could you please, if not answer, at least throw in the ring some issues that need to be closely looked at, in respect to the (il-)legality of bitcoins in the US?

What are the major obstacles for the legality of dealing (possesing, creating, etc.) with bitcoins if it came to trail?

Are there any precedents yet?

Thanks for your opinion,
a bitcoin enthusiast

Posted by: Bitcoin_Enthusiast | Jan 19, 2012 3:59:16 PM

Seems silly. I mean if I was married and murdered my wife or something with say a knife and pretended someone broke in and did it... just an example, whatever... and someone recorded me saying I did kill her and liked doing it and I did use that knife, while I was standing over the body (before the police came). That would be thrown out? I hardly think so... I think that the press and the prosecution would have a field day with it.

I mean I can see people trying to trick someone into giving up information (Wrong in my opinion), but (police do it all the time) perhaps not being in a police station makes it not ok?(well, unless you are the police then everwhere is ok apparently) anyways. My point is that just like there are experts in fields such as hand writing analysis, there are also experts in voice analysis. They would be able to see if the evidence had been altered in some way to make it sound like the person on tape was saying something they didn't.

If someone can put a letter into evidence with a handwriting expert to back it up I see no reason that a recording of someone could not be put into evidence either.

Also, What's the deal with judges not allowing defendants to even say what laws they are using in order to defend themselves (medical marijuana cases) If that state has legalized it, then if that court hearing is in said state, those laws are indeed in effect and valid right? If not then it would seem that the constitution is invalid and people do not, in fact , have the right to change/remove/ or add laws.... unless the government wants it.

/end rant
Just using examples I've seen or read about...etc.
sorry for going off topic at the end. annoys me when you can't even show which laws, which are completely legal and supported by the people, you are using for your defense.

Posted by: Eldie | Jan 24, 2012 5:33:41 PM

No comment professor?

Posted by: BPExCo | Jan 24, 2012 5:56:05 PM

The question of whether bitcoin is legal is something that is beyond my area of expertise. I will see what I can track down about it for a future post.

Posted by: Colin Miller | Jan 25, 2012 7:52:13 AM

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