Victim's Text Messages Excluded from Aaron Hernandez Trial; More Support for a New Hearsay Exception?

The Boston Globe reports that a trial court on Friday excluded from evidence the victim’s text messages in the murder prosecution of former NFL star Aaron Hernandez.  From the Globe:

“The texts that Odin Lloyd sent minutes before he was fatally shot cannot be shown to the jury during the first-degree murder trial of former New England Patriot Aaron Hernandez, a judge ruled Friday, dealing a blow to prosecutors....

Minutes before he was shot in the early morning hours of June 17, 2013, Lloyd texted his sister: ‘U saw who I was with ... NFL ... Just so U know.’”

Additional coverage comes from Michael McCann (@McCannSportsLaw) at Sports Illustrated, who has been closely following the case and views this ruling, in concert with others, as a serious problem for prosecutors.

The prosecutors argued that moments before his death, Lloyd was telling his sister he was (or recently had been) with Hernandez ("NFL").

I analyzed the admissibility of the text message exchange between Lloyd and his sister in a blog post this summer, forecasting that the Massachusetts prosecutors would not be able to introduce it into evidence because it was hearsay not falling within any exception - which appears to be the judge's ruling.*

What does this ruling say about the existing hearsay rules in an age of electronic communication?

To my mind, this case highlights the advantages of a hearsay exception along the lines of a proposal I recently presented to the Advisory Committee on the Federal Rules of Evidence.  The argument boils down to this.  It is hard to figure out what happened in the past, especially when key participants will not be available to testify.  Increasingly ubiquitious text messages can help as they are are often candid, private communications made prior to litigation and shortly after the described events – and they can be presented to juries in their original form. 

To the extent, “a trial is not a sporting event but a search for truth,”** why would we handicap the jurors by excluding this evidence? 

Here is the text of my proposed exception.  Italicized text represents additions; non-italicized text (including the bolded titles) is unchanged from the existing federal rules:

Rule 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable As a Witness . . .

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: . . .

(5) Recorded Statement of Recent Perception. A recorded communication that describes or explains an event or condition recently perceived by the declarant, but not including:

(A) a statement made in contemplation of litigation, or to a person who is investigating, litigating, or settling a potential or existing claim; or (B) an anonymous statement.

For those looking for more information (I'm looking at you the Commonwealth of Massachusetts), the Fordham Law Review just published the materials from the Advisory Committee's recent electronic evidence symposium, which includes my contribution:

The Case for eHearsay     

Professor Dan Capra drafted an (excellent) memorandum analyzing the proposal for the Committee in his capacity as the Reporter to the Committee:

Memorandum: Hearsay Exception for Electronic Communications of Recent Perception

And although these materials were created to help the federal Committee consider the proposed exception, there is no reason a state like Massachusetts could not take this same guidance and adopt the proposal, or a modified version, for that state's evidence code. 

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* Although the slog for prosecutors was harder because there is no Present Sense Impression exception in Massachusetts, as comments to my earlier blog post pointed out, the text message may not qualify as a present sense impression.  And, in any event, the present sense impression is the wrong mechanism for funnelling reliable electronic communicatios to juries.

** Clevite Corp. v. Beckman Instruments, 257 F. Supp. 50, 52 (S.D. Cal. 1966)