Friday, November 22, 2013
Yesterday, I posted an entry about the intersection between Federal Rule of Evidence 902(7), which allows for self-authentication of inscription, sign, tag, or labels, and the rule against hearsay. In the entry, I discussed two cases in which courts found that self-authenticated inscriptions did not implicate the rule against hearsay when they were merely admitted as trace evidence, to prove the origin of an item (a gun manufactured in Spain and a hard drive made in Malaysia). But what if the evidence is offered for some other purpose? Let's take a look at the opinion of the Superior Court of Pennsylvania in Commonwealth v. Harvey, 666 A.2d 1108 (Pa.Super. 1995).In Harvey,
Beginning in September 1990, John T. Harvey, then 46 years old, provided beer to numerous teenagers at his residence. Further, he required them to stay overnight at his home if they consumed any alcohol. Several minors testified that Harvey also provided them with marijuana. This activity continued until January 1992. In addition, one minor testified that, on two occasions Harvey asked him to sleep in his bed, and that Harvey sexually assaulted him on both occasions. Following a jury trial, Harvey was convicted of nine counts of selling or furnishing liquor or malt or brewed beverages to a minor, sixteen counts of corruption of minors, two counts of indecent assault, two counts of possession of a controlled substance (marijuana), and two counts of possession with intent to deliver a controlled substance (marijuana).
After he was convicted, Harvey appealed, claiming, inter alia, that the trial court erred by allowing the minors to testify that they consumed Busch brand beer at his house. Specifically, he "assert[ed] that the 'Busch' label on the cans constituted inadmissible hearsay." In response, the court noted that
Harvey cite[d] no authority, nor are we aware of any, which stands for the proposition that product names found on containers constitute inadmissible hearsay. However, courts in several other jurisdictions have concluded that product labels admitted to establish the ingredients of the product constitute hearsay. Nonetheless, even where testimony as to the contents of a container based upon the label was found to constitute hearsay, courts have held that product labels fell within an exception to the hearsay rule.
The court then gave two examples:
In the first, Interest of T.D., 450 N.E.2d 455 (1983), "the Appellate Court of Illinois was asked to consider whether the notation on the label of a glue container that listed the contents of the container constituted hearsay when offered to prove the truth of the matter asserted, i.e., that the glue contained a hazardous substance."
The court rejected the State's contention that the label was admissible as an exception to the hearsay rule as a business record or a public document. Nevertheless, the court recognized that both federal and state statutes required that the tube of glue bear a label stating that it contained Toluol, a hazardous substance....Therefore, the court held that “the trustworthiness of the label [was] beyond suspicion and though technically it [did] not meet the requirements for a business record, it should be an exception from the rule against hearsay."
In the second, Moore v. Director of Revenue, 811 S.W.2d 848 (Mo.Ct.App.1991), "the Missouri Court of Appeals determined that statements on the packaging of a needle and vacutainer representing that they were sterile, and statements on an antiseptic label stating that the antiseptic contained 10% iodine solution, constituted hearsay, but were admissible as an exception to the hearsay rule." But, as in the Illinois, this was a special exception rather than a standard exception like the business records exception.
Having laid this groundwork, the court in Harvey then set it aside, concluding that
The above-cited cases are distinguishable from the present case. Had the Commonwealth relied upon the Busch label to establish the alcohol content of the beverage, such testimony would have fallen squarely within the dictates of In the Interest of T.D...and Moore. However, here, the minors' testimony wasnot offered to establish the contents of the container. Instead, the Commonwealth only asked the minors what brand of beer they consumed.
This is all very interesting, but it begs the question of what hearsay exception would have applied if the Commonwealth were trying to establish the alcohol content. Presumably, the label could have qualified as a business record, but that ostensibly would have required someone from Busch to testify. Anything else?