Tuesday, January 17, 2012
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):
Gordon Higgs: Objection, your honor!
Judge Sobel: No, Mr. Higgs. You may answer.
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.