25 May 2005

Is a Blog Post Allowed as Evidence?

Orin's question actually led to a friendly argument between me and a prosecutor. The question:
Is a computer printout of [a] blog post, identifying "my sister's former boyfriend" as being present in a house shortly before the author was killed, admissible at trial?
The prosecutor asserted that it wouldn't be allowed in because it didn't fit under the hearsay exceptions because it wasn't a dying declaration, excited utterance, and didn't indicate any relevant state of mind.

I allowed that he was right on the first two and probably the third but that the exception which would allow it under Virginia's common law evidence rules would be the res gestae exception. This is a common law exception which allows statements which occur with significant relation to a crime to be admitted into evidence if they are tied to the crime. It's generally been done away with in States which have adopted a version of the federal rules and there has been a trend in common law States to relegate it to just another way of saying "excited utterance." The difficulty with this in Virginia is that res gestae is also the manner in which felony murder is proven: if the homicide is related to the underlying felony then it is within the res gestae and therefore a felony murder. This seems to dictate a wider understanding and Virginia' Supreme Court has set forth this test for the res gestae hearsay exception:
(1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event;

(2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair;

(3) it must be a statement of fact, and not the mere expression of an opinion;

(4) it must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design;

(5) while the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation, and

(6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made. Chappell v. White, 182 Va. 625, 633-34, 29 5. E. 2d 858, 861-62 (1944).
I think the blog entry falls fairly comfortably within those parameters; or, I should say that I would expect most judges to find that it did if the prosecutor presented the evidence under this exception.

Understand, if I were the defense attorney I wouldn't roll over on this one. There is an argument that this is not a comment on the murder at all because it is precedent to the murder. As well, the Virginia Court of Appeals has published at least one decision wherein it claims that res gestae is just excited utterance: Royal v. Commonwealth 12 Va. App. 928 (1991). Authenticity was an issue raised in comments to Orin's post and is probably the strongest argument against introduction into evidence: prove it was written by the decedent, that nobody else had the login code or the browser he used didn't automatically enter the login name and password, that it wasn't written under duress, etc. There is also the fact that no one was named in the post which could give rise to the argument that it doesn't even provide proof that the defendant was even the person being written about (although this could be countered by reference to the fishing rods).

Of course, this is all really just a mental exercise since the accused made a confession.

1 comment:

Anonymous said...

don't you have to be able to autheticate the speaker of the hearsay? i mean, when i testify that the victim said "Jake was here" right as she died, i can identify the victim as being the person who said it. when the hearsay comes over the telephone you have to go through the little song-and-dance that proves you would recognize the person's voice and you had enough reason to believe you really were speaking to that person.

anyone can type and you'd be hard-pressed to prove who did the typing. people with home computers often leave themselves logged in to livejournal, for instance, and later you find their roommate/spouse/whomever apologizing for having posted under the wrong account.