EvidenceProf Blog

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

Friday, July 5, 2013

Born in East L.A.?: Are Field 826s Testimonial? Are They Hearsay?

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

But what if a public record contains hearsay statements from civilians? Let's take a look at the recent opinion of the Ninth Circuit in United States v. Morales, 2013 WL 3306395 (9th Cir. 2013).

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July 5, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 3, 2013

Is a Police Sketch More Like a Writing or More Like a Photograph?

Under § 24-10-1002 of the Georgia Code, Annotated, Georgia's Best Evidence Rule, provides that

To prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required.

§ 24-10-1002, however, is part of the new Georgia Rules of Evidence, which replaced Georgia's prior Evidence Code. Under § 24–5–4(a) of that Code, the Best Evidence Rule merely covered writings and did not cover recordings or photographs. So, where did that leave police sketches? Let's take a look at the recent opinion of the Supreme Court of Georgia in Boothe v. State, 2013 WL 3287139 (Ga. 2013), which was decided under Georgia's prior Evidence Code.

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July 3, 2013 | Permalink | Comments (1) | TrackBack (0)

Sunday, June 30, 2013

Text Messages and the Hearsay Rule in the Aaron Hernandez Case

Thanks to Colin for the opportunity to guest post about text messages and the Aaron Hernandez murder prosecution.  I am particularly interested in the (reported) text messages from the victim in the case, Odin Lloyd.

Specifically, the NY Times provides this description of some of the evidence against Hernandez (former star player for the NFL’s New England Patriots):

In his final moments alive, Lloyd texted his sister to alert her.  When she asked whom he was with, he answered, “NFL,” and added, “Just so you know.”

The ominous text features prominently in the evidence alleged against Hernandez in various news stories about the case.  As I have written elsewhere, this kind of evidence (text messages and social media posts) is becoming increasingly prevalent as police, attorneys and other investigators start to develop the same degree of tech-savvy as the people they investigate.  Consequently, its admissibility is an important question for courts, policymakers and evidence scholars.

Obviously the reported text message from Lloyd to his sister is hearsay.  It is an out of court statement offered for the truth of what it asserts:  that Lloyd was with Hernandez (“NFL”) moments before Lloyd’s death.

Is it nevertheless admissible?

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June 30, 2013 | Permalink | Comments (4) | TrackBack (0)

Complete the Statement: 6th Circuit Finds Rule of Completeness Doesn't Allow for Admission of Otherwise Inadmissible Evidence

Federal Rule of Evidence 106 provides that

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

One recurring question that has divided the courts regarding Rule 106, the so-called "rule of completeness," is whether it allows for the introduction of otherwise inadmissible evidence. Let's take a look at the recent opinion, United States v. Parenteau, 2013 WL 3214934 (6th Cir. 2013), to see what the Sixth Circuit had to say about the issue.

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June 30, 2013 | Permalink | Comments (0) | TrackBack (0)