Articles Posted in Evidence

Mr. Prosecutor keeps looking through the rule, knowing something in there should save Mr. Manziel from getting a separate trial. “Here it is,” he says to himself. Rule 803(24), Statement Against Interest: “[a] statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” We find people’s statements that subject themselves to ridicule or liability believable, hence the exception. “Statement against interest, your honor,” says Mr. Prosecutor. “The statement to the reporter subjects the reporter to criminal liability.”

“Let me see your corroborating circumstances,” replies the judge. The prosecutor starts placing into evidence (outside the jury’s presence) the eBay account of the Autograph Broker, the video the witness claims to have (if it exists), and other evidence. “Admissible as to the Autograph Broker, but you already have that,” the judge rules.

“But judge,” snaps the prosecutor, “the rule doesn’t require corroborating circumstances for admission against Mr. Manziel,”

The prosecutor, frustrated that an extra trial might interfere with his upcoming vacation plans, digs through the rules to somehow admit this evidence without allowing Mr. Manziel to force a separate trial. The judge, having similar vacation plans and not wanting to spend county resources empaneling another jury, looks at him. “Any other exception, Mr. Prosecutor?”

The prosecutor says “crap” to himself, which brings back “KRAP” from his bar review, which stood for something. He hurriedly looks to see if the statement and the purported video he desires to play can come in. The witness previously told him he had a video of Johnny Manziel signing autographs, and he fingers through the rule to the 803(6), the business records exception which reads: “[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. ‘Business’ as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.” Well, that might work for the video, as autograph brokers keep videos to prove the authenticity of the autograph, but that doesn’t help him with the statements of the broker to the reporter.

Rules 801 and 803 provide what is non-hearsay and what are exceptions to hearsay. The prosecutor says, “[a]dmission by a party opponent or coconspirator, your honor.” The autograph broker’s lawyer glances down at Rule 801(e)(2) which says, “[a] statement is not hearsay if…The statement is offered against a party and is: (A) the party’s own statement in either an individual or representative capacity; … or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.”

The judge, having not looked at the coconspirator rule for a while, rereads it and says, “Sustained as to Mr. Manziel. Although the statement might be one of a coconspirator to the crime of committing NCAA violations, the statement was not made in furtherance of any conspiracy. However, it is admissible as to Mr. Autograph Broker because they are his own words and offered against him.” Mr. Manziel wipes his forehead and looks at his lawyer. But, since your one’s own statements to any witness are admissible against you at a trial against you under 801, Mr. Autograph Broker is behind the 8-ball and his lawyer knows it.

“Your honor, at this time I move for severance of this trial,” says Johnny Manziel’s lawyer. Since these statements incriminating Mr. Manziel are admissible only against his codefendant, Mr. Manziel is able to sever (get a separate trial) under the Bruton rule. Otherwise, Mr. Manziel’s right to cross examine his accusers (those making the statement) would be violated by not being able to cross examine the declarant of the admissible hearsay statement, Mr. Autograph Broker. Mr. Autograph Broker can assert his right to remain silent, thus violating Mr. Manziel’s right to confrontation.

First, the right of confrontation would require the ESPN reporter to be on the stand to testify as to his knowledge. So, imagine in a criminal court Johnny Manziel and the autograph broker were being tried for violating NCAA rules or inducing said violations? There they sit with their lawyers at the defense table. The prosecutor asks the ESPN reporter, sitting on the witness stand, “Mr. Rovell, please tell the ladies and gentlemen of the jury what this autograph broker told you he did with Johnny Manziel.”

“Objection” says Manziel’s defense lawyer. “Hearsay.”

The objection is sustained as to him. What Mr. Rovell heard the autograph broker say is a statement made out of court and offered for the truth of the matter asserted (by the statement). The prosecutor would have two options: 1) move on, or 2) try to find a hearsay “exception” to get the statement into evidence. If he is a cunning prosecutor with lots of experience backdooring evidence, he says to the judge, “I offer the evidence only for its effect on the listener and the reason this witness took further steps in his investigation.” The defense attorney, knowing the evidence is being backdoored in to prejudice the jury and not really to help them understand the effect on the listener, can hopefully get the judge to shut it down. Under Texas law, however, hearsay can be admissible for the “limited purpose” of showing not the truth of the matter asserted, but that the witness was told the information and took further action in response. However, the judge does not appreciate the move and blocks it. What can the prosecutor do now?

The rule against hearsay is one of the fundamental rules of the American justice system. It is very similar, although not completely identical, to the rule requiring confrontation of witnesses in a criminal case, i.e., the right to confront one’s accusers. Our nation’s founders were very disturbed at English prosecutions, such as that of Sir Walter Raleigh, based primarily upon letters from third parties as key evidence. Common sense also dictates that a person telling you what they heard another person say, as if they had observed the events personally, is not in any way as reliable as a first-person recollection of events. Texas Rule of Evidence 801(d) states: “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 802 says “Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority…”

So why did I put Johnny Manziel in the title other than a selfish desire for internet search-ability? Because the Johnny Manziel case as we know it is pure hearsay on many levels. A junior reporter (Darren Rovell) at ESPN claims he talked with an autograph broker who said Johnny Manziel autographed numerous items for him in a single setting. The same reporter says he saw a video of Johnny Manziel signing numerous items (though we haven’t seen the video). So why can’t the reporter’s article simply be admitted in court as proof that Johnny Manziel signed numerous items in violation of an NCAA rule? Or, what if the case were brought in a Texas criminal court, due to the fact that certain NCAA violations (recruiting violations) actually can be criminal activity in Texas?

The Texas Rules of Evidence are modeled after the Federal Rules, and Rule 404 is the main rule governing character evidence. 404(a) outlaws evidence of character simply to prove “conformity therewith on a particular occasion,” I.e. you can’t use character evidence to say simply “he did it before, so he must have done it now.” You can’t generally use a person’s history of theft to prove that he committed a theft on a particular occasion, or evidence that he lied before to prove that he lied on a particular occasion. However, under 404(a) a defendant is allowed to offer evidence of his “pertinent character trait.” I.e., Zimmerman could offer into evidence that he is a peaceful person. At that time, he has opened the door to character evidence that he is aggressive or violent and has so acted on prior occasions. 404(a)(2) also specifically allows evidence of the character of the victim in a self-defense case.

Florida’s rule of evidence 90.404(b) similarly allows “(1) evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait; or (2) Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor.” It is the simple fact of most assault cases, including sexual assault cases, that character evidence is extremely important. Most assault cases are of the “he-said/she-said” variety, in which evidence of aggression/violence regarding one party is gold for the other. The “Rape shield,” Federal and Texas Rule 412, which most states have adopted, has severely limited sexual character evidence in rape cases, but in homicide or run-of-the-mill assault cases, the door is still wide open for evidence bordering “trial by ambush.” The back-and-forth character nature of the Trayvon Martin case goes on in courthouses all over America on a weekly or monthly basis.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

Character evidence is very important in a criminal case. We want the jury to like our client, and to dislike the person accusing us of an alleged crime or the witness to an alleged crime. However, the rules of evidence generally frown on “trial by ambush,” so there are limits to what one can present. In Trayvon Martin’s case, the Zimmerman team wants the deceased’s Facebook, Twitter and school records to show that Martin was the likely aggressor. If so, it becomes more reasonable for Zimmerman to use force, including deadly force, in self-defense.

On Facebook, aggressive or threatening posts, evidence of gang membership, or any relevant evidence supporting the defense’s first-aggressor theory, could potentially be admissible into evidence. The school records are probably much more likely to contain admissible evidence of aggression such as prior fights and aggressive bad acts. However, to be admissible they have to be relevant.

From Zimmerman’s medical records, the prosecutors are primarily looking to rebut the extent of his injuries according to the news reports. However, prosecutors may also fish through other medical records they can get their hands on to help paint Zimmerman as aggressive or hostile or loose-cannon, rebutting his evidence that Martin was the first-aggressor.

Trayvon Martin’s parents are wildly screaming that the privacy rights of their 17 year old “kid” are being invaded by George Zimmerman’s lawyers acquiring Trayvon’s Facebook, Twitter and school records. First of all, what you post on Facebook or Twitter in public has little privacy value. So, be careful what you say on public message boards. Next, school records are private records, but are a gold mine source for criminal defense lawyers and prosecutors researching criminal defendants and criminal witnesses. Defense lawyers in Texas can easily subpoena school records and turn them over to the Court. So can prosecutors, who usually look through a defendant’s school records for evidence of “bad acts” to use against them in punishment hearings.

The only records which normally have an added level of privacy protection in Texas law are CPS (Department of Family and Protective Services Records) records detailing child abuse or neglect investigations, and health records which generally require a HIPPA-compliant subpoena (although our Court of Criminal Appeals has held a general subpoena not to be fatal), and court documents which placed under “seal” by a court (i.e. excluded from public portion of a file) such as family social studies in divorce cases.

As most divorced persons can tell you, once you get into court, what you thought is your “right of privacy” is very limited. In criminal law, this is because both sides have the power of subpoena, i.e., the power to get an order of the court requiring a person with testimony or evidence to come to court to produce such testimony or evidence. If you have a car accident and are taken to the hospital, the courts can force your hospital records to be brought to court for use in favor of or against you if they are admissible under the rules of evidence. So why are Trayvon’s Facebook, Twitter, and school records so important in this case? Why are George’s medical records so important to the prosecution? Read Part two for the answer.