Text Messages

[tranquility]

It's not just the "weight" that is the problem. If you couldn't prove the other party sent it, how is it not hearsay? (Were they not offered for the truth?)

 

[Mass_Shyster]

It's not just the "weight" that is the problem. If you couldn't prove the other party sent it, how is it not hearsay? (Were they not offered for the truth?)

Along those lines, if you couldn't prove who sent it, how is it relevant?

 

[You Are Guilty]

Really guys? Surprised that a judge might be wrong on such an obvious issue? Strange stuff happens all the time. (Care to see my hearing transcript where a non-admitted, but law school graduate, was permitted to question witnesses?)

That's why they invented appeals.

 

[tranquility]

Relevence is the first question of evidence admission, and there we have a balancing test. Hearsay is or is not. The tests for each would be different.

 

[Ohiogal]

It's not just the "weight" that is the problem. If you couldn't prove the other party sent it, how is it not hearsay? (Were they not offered for the truth?)

It comes in as a hearsay exception -- statements of a party opponent.

 

[tranquility]

As I wrote:

If you couldn't prove the other party sent it, how is it not hearsay?

 

[Mass_Shyster]

As I wrote:

If you couldn't prove the other party sent it, how is it not hearsay?

If you couldn't prove the other party said it, how is it not hearsay?

Firstly, a statement by an opponent-party is non-hearsay by definition, not a hearsay exception. (Unless you're in Massachusetts - where it it still considered an exception). Ohio mimics the Federal Rules, so in Ohio, a statement by the other party offered against him is non-hearsay.

So let's say the statement in question is "I shot the clerk" (from My Cousin Vinny). What is the difference between the testimony

I heard Mr. Gambini say "I shot the clerk"

and

I got a text from Mr Gambini saying "I shot the clerk"

?

In both cases, you're relying on the witness for the fact that he heard/saw the statement, and that the declarant said/sent the statement.

In both cases, it could have been someone else who said/sent the statement, so why would one be any less reliable than the other?

In both instances, the declarant can deny saying/sending the statement.

Disclaimer: I am using this exercise as a method of reviewing for my evidence exam on Saturday - so this IS homework.

 

[tranquility]

Establish foundation for each. See the difference?

I heard Mr. Gambini say "I shot the clerk"

I got a text from Mr Gambini saying "I shot the clerk"

 

[Proseguru]

A request to admit may have been in order.

 

[Mass_Shyster]

Establish foundation for each. See the difference?

Yes, and no...

A lay person can testify to the identification of a voice, but cannot testify to the source of the text message. Maybe that's the source of my confusion, because I really don't agree that he should.

Rich Little did a great imitation of Richard Nixon, so if I received a phone call from Rich Little, claiming to be Richard Nixon, I could testify that I received a call from Richard Nixon and he said "I shot the clerk". On the other hand, using some technological slight of hand, Rich Little could send me a text message, that certainly appears to have been send by Richard Nixon's cell phone, that says "I shot the clerk", but I cannot testify to that.

Maybe it's more of an "I understand it, but don't agree with it".

Like I said, I'm churning through this in an effort to do well on an exam, and appreciate your indulgence.

 

[tranquility]

Some foundation.(Generally. Laying the foundation is a bit more subjective than objective.)

I heard Mr. Gambini say "I shot the clerk"

1. Do you know Mr. Gambini? (Then work through how.)
2. Having been married to Mr. Gambini for 50 years, would you recognize him if you saw him? (Is he in the court? Can you point him out? etc.)
3. On [date] at [time][place] were you with Mr. Gambini?
4. Did he say something?
5. What was it?

Everything to qualify the testimony regarding Mr. Gambini is within the knowledge of the witness and requires no opinion.

Texting is different. Now, how are you going to develop a foundation without knowing it was Mr. Gambini who was texting? How can you even prove the number that came up on the phone was from him? You will need other evidence. You will need business records (phone logs) and someone to explain their meaning. There is an additional step hidden because we take it for granted in the first instance. Step 2 can reasonably be accomplished with testimony with the witness when directly perceived. Not so with texting. The witness alone cannot provide enough foundation. (Although we could imagine circumstances where they could, it is not the case here.)