Text(ual) Analysis: 4th Circuit Finds That Text Message Sent to Defendant Wasn't Hearsay

According to Federal Rule of Evidence 801(c),

“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.

So, assume that two defendants are charged with conspiracy to kidnap and use of a firearm during and in relation to a crime of violence. Assume that, the day before the crime charged, a contact sent one of the defendants a text message that said, "This bitch is at crystal house cuz her father died today so I have no idea when she is gonna be going home Ahk. we got to try something man[.]" Would this statement constitute hearsay? According to the recent opinion of the Fourth Circuit in United States v. Edelen, 2014 WL 961565 (4th Cir. 2014), the answer is "no."

The facts in Edelen were as stated above, with Jeffrey Edelen being the defendant who received the text message and a contact identified as "Puffy" being the sender. The "crystal" referenced in the message was ostensibly a woman named Crystal, who was a friend of the victim, LaKendra McNair.

According to the Fourth Circuit,

The district court concluded the text message [was not] hearsay because "it's not being offered for the truth. [It][d]oesn't matter whether [the text message is] true or not. It only matters that somebody in the house had access to the information. Circumstantial evidence of communication."...The Government likewise contends the statement "was offered to show the fact and timing of communication between co-conspirators, and its effect on [Appellant] Edelen's knowledge and state of mind."... Appellants, on the other hand, paint these justifications as mere pretext, arguing that the true purpose behind the Government's introduction of the text message was to prove the truth of the matter asserted therein, i.e., "that [Appellants] had access to information that was truthful regarding Ms. McNair's whereabouts and personal details about her life." 

The Fourth Circuit began its analysis by noting that

the text message, like most statements, had the potential to serve either hearsay or non-hearsay purposes. In this vein, the district court offered to instruct the jury that it could not consider the text message for the truth of its contents....Appellants refused this offer, and in so doing, explicitly waived an opportunity to limit the text message to its permissible purposes....As observed by the Seventh Circuit, "the defendants cannot have it both ways-[they] cannot refuse a limiting instruction and then claim on appeal that the evidence was unfairly prejudicial."... In our view, Appellants' strategic decision to refuse the district court's offer severely undermines their claim that they are entitled to relief because the jury impermissibly, and prejudicially, considered the text message for its truth.

Having disposed of this argument, the court was then easily able to conclude that

Appellants' theory, in any event, suffers from a readily apparent flaw—the "matter asserted" in the text message was not, as Appellants contend, that they "had access to information that was truthful regarding Ms. McNair's whereabouts and personal details about her life."...To the contrary, the only factual assertion contained in the text message was “bitch is at crystal house cuz her father died today." ...Irrespective of the truth or falsity of this description of Ms. McNair's physical location on January 12, 2011, or the reason for her presence there, the text message (1) forms a link between Appellant Edelen and "Puffy" by the simple fact that it "was made,"...and (2) serves to support an inference that Appellant Edelen had access to, and likely received, certain information about Ms. McNair prior to the commission of the offense, which is plainly probative of his underlying knowledge and intent in targeting her home.

-CM