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?
The prosecution needs a hearsay exception for the text, or a jury will never see it. The requirement of authentication, the hurdle the prosecution is encountering in the Bradley Manning prosecution, is likely not a major obstacle here assuming testimony from Lloyd’s sister and, if necessary, the phone service provider, which likely would constitute “evidence sufficient to support a finding that the [text] is what its proponent claims.” Rule of Ev. 901; see also here.
As for the hearsay question, a strong argument can be made that the text fits the present sense impression exception for “[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.” Fed. R. Evid. 803(1). Lloyd’s alleged statement, essentially, “I am currently with [Hernandez]” fits. See United States v. Murillo, 288 F.3d 1126, 1137 (9th Cir. 2002) (noting the defendant's concession that the statement “I'm with Diana...and Rico” was a present sense impression).
Unfortunately for prosecutors, Massachusetts is among the minority of States that has not adopted the present sense impression hearsay exception. So the text is not coming in through that exception in a Massachusetts court, where Hernandez appears headed. (The statement could be admitted in federal court in Massachusetts under the Federal Rules of Evidence.)
The prosecution could argue that the text is a dying declaration, but to my mind, a lot more is needed to make the requisite showing that, at the time it was written, “‘all hope of recovery has gone from the mind of the declarant, and he speaks under a sense of impending death.’” Com. v. Dunker, 298 N.E.2d 813, 815 (Mass. 1973); Mass. Ev. R. 804(b)(2) (“under the belief of imminent death”).
The text message, important enough given its role in a high profile murder prosecution, illustrates the dilemma posed by the new electronic communication norm for our existing hearsay framework. The ultimate question comes down to whether juries should see a message like this, and why (or why not). I think most people would find it odd that the text message might be excluded from the evidence in a trial. True, Hernandez would be unable to cross-examine Lloyd as to what he meant, something that might be useful given the ambiguity in the text (using “NFL” to mean, allegedly, Hernandez). At the same time, Lloyd is not available to explain in person, and depriving the jury of his text messages to his sister moments before his death seems bizarre to anyone not already acquainted with the byzantine hearsay rules.
That said, it is hard to fault Massachusetts for not adopting the present sense impression (PSI) exception. In fact, the exception, designed for a simpler age of oral communication, is a terrible fit for these kinds of statements (something I explain at length here, but see here). The dying declaration exception is no solution either, as it applies in only the narrowest of circumstances. There should be a way to introduce reliable texts and social media posts, over a hearsay objection, and it is no surprise that our current rules (written before these communications existed) do not provide it. In a forthcoming article, I propose bringing back a modified form of the Statement of Recent Perception hearsay exception, tailored to electronic communication, available here. The precise wording of such an exception (included in my proposal) is a complex question, and a topic for another post. But the key point is that the evidence world needs to start thinking about how to handle this type of evidence – as the Hernandez case shows. The evidence is here, and courts do not have the tools they need to analyze its admissibility in a way that meaningfully separates statements that should be admitted from those that should not.
Lastly, for those of you wondering about the role the Sixth Amendment, Confrontation Clause could play in this context, keep in mind that the Clause now only applies if a statement is “testimonial,” something that will generally not be the case in light of recent case law for most texts and social media posts, see here.
Associate Professor of Law, College of William and Mary ([email protected])
The hearsay for present sense impressions exists because it is assumed that this type of statement is not likely to be contrived, that it is likely spontaneous and therefore likely to be true.
A Facebook post or a Tweet – it is really a spontaneious statement “from the gut”, or is it a statement made with the intention that the readers should see a thing in a certain way, and respond to it in a certain way? Without delving into the psychology of every individual Facebook or Twitter declarant, one almost has to say that the latter element will be present, and probably predominant.
Particularly when a declarant posts to his/her own Facebook page or Twitter account -- isn’t this a statement made by a declarant who has constructed a certain image of him/herself, what we might call an “Internet personality” defined by his/her photo (sexy? athletic? party animal?) and who places him/herself in that personality with the intent of being read by a certain group of people, and of obtaining a certain response from them?
And does one really “blurt out” a Facebook or Twitter post? No, No, No, or rarely at very most. Rather, the post is written with time for contemplation and with effect in mind -- even if it supposedly describes contemporaneous events. In other words, it is the absolute essence of testimonial hearsay, and it should not have a hearsay exception created for it.
If a hearsay exception is created, any such declaration still will need to undergo scrutiny as to whether it is testimonial under Crawford. But I fear that the standard of scrutiny will become so weak that Crawford will almost cease to apply.
There are ways enough under the present rules to get evidence admitted when it is truly necessary, reliable, and compelling. Leave well enough (or bad enough) alone.
Posted by: JVD | Jul 10, 2013 7:33:34 PM
Your blog reports that "when [his sister] asked whom he was with, [Lloyd] answered, "NFL," and added, "Just so you know."" According to other news sources, the sister saw Lloyd get into Hernandez's car and "later, sensing trouble, [he] texted [her], saying "Did you see who I was with?" Then: "NFL. Just so you know."" The Atlantic Wire 6/27/13.
If the latter account is accurate, the statement may not be a present impression under federal law. Lloyd could be saying whom he had been with and not whom he was with. As Justice Cardozo has taught us, statements facing backward and not forward (or sideways) are typically inadmissible.
Posted by: Paul | Jul 29, 2013 2:27:24 PM
Later news accounts do suggest a possible forfeiture by wrongdoing argument as apparently there are other alleged crimes that LLoyd may have witnessed. (H/T Michael McCann) We will have to see how the evidence emerges on this point.
I agree completely that the present sense impression exception is a poor vehicle for allowing in Facebook posts and tweets (and even text messages). There is valuable electronic evidence out there, however, like the texts described in the post, and I don't see why we wouldn't want to think about new ways to let juries see that evidence rather than rely on haphazard fits with existing exceptions (this argument is fleshed out at length in the piece cited above).
If the text is, in fact, referring to a past (completed) event, then the present sense impression exception likely would not apply depending on how distant the past event (the exception requires the statement to come during the event described or "immediately after"). Presumably the police have access to the sister's phone and can recreate the exact exchange.
Posted by: jeff bellin | Jul 30, 2013 7:39:08 AM
however, some tricky prosecutors might try to get around it. For instance, Mass. permits exempts from the definition of hearsay prior statements of identification. See Mass Rule of Evidence 801. You'll note it requires cross examination of the declarant for admission. However, what if Mr. Hernandez's acts made that witness unavailable? Some may argue it would offend justice to permit a murderer to exclude a victim's identification statement by killing that victim. Moreover, is this a testimonial statement, or more towards the excited utterances/911 calls that are not deemed testimonial under Crawford?
Please remember that although the SJC promotes the use of the evidence rules by judges and lawyers, they are never dispositive, and nearly every judge in the commonwealth wants a case to hang their hat on.
Posted by: jim | Jul 1, 2013 11:39:22 AM