In re Jovan A, 2014 IL App (1st) 103835, poses the question of whether the content of a craiglist.org advertisement (the “craiglist Ad” or “Ad”) is admissible under the hearsay exception for showing what steps police took in the course of investigating a crime. The First District answered “no”; it’s not admissible.
The State charged the defendant with stealing a bike off the back of a parked car in Chicago’s Bucktown neighborhood. The bike belonged to the car owner’s friend. Later that same night, the car owner visited the craigslist.org site and saw a bike for sale that looked just like her friend’s stolen bike. The Ad also directed the viewer to call a phone number if interested in buying the bike. The car owner printed the Ad, cross-referenced it to find an address associated with the phone number and gave it to her detective friend, who then started an investigation.
The detective eventually located a person he believed to be defendant (based on car registration data), called the number on the Ad, and the defendant’s cell phone rang. Defendant was arrested and charged with theft of property over $300. 720 ILCS 5/16-1(a)(1) (criminal theft statute). At trial, the detective, the car owner (off whose car the bike was stolen) and two other witnesses testified against the defendant. The detective and car owner both testified as to the contents of the craiglist Ad over defendant’s hearsay objection. After a bench trial, the defendant was sentenced to 18 months probation for stealing the bike. Defendant appealed.
Held: Trial court reversed. The craiglist Ad is inadmissible hearsay.
The craigslist Ad was the key piece of evidence relied on by the trial court when it found defendant guilty of stealing the triathlon bike. The First District reversed the trial court because the Ad was hearsay evidence and didn’t satisfy any exceptions.
Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted. IRE 801-807. Hearsay is generally disallowed because it is “no better than rumor or gossip” and can’t be tested by cross-examination. U.S. v. Boyce, No. 13-1087 (7th Cir. 2014).
Hearsay includes both oral and written statements (and sometimes non-verbal conduct) and encompasses matters directly asserted as well as matters implied by the declarant (the person making the out-of-court statement).
Hearsay is inadmissible unless it falls within an exception to the rule. In the criminal context, a hearsay exception exists where a law enforcement member testifies concerning out-of-court information he read, heard, or saw during the course of an investigation to explain why he arrested a defendant or took other action.
This testimony is not hearsay because it is offered to show the steps the officer took in his criminal investigation; not for the truth of the matter asserted. Id. Under the course-of-investigation exception to the hearsay rule, an officer’s testimony is limited to what is necessary to explain his actions. Beyond that, he can’t testify to the content of any statements he received in the course of the investigation. Jovan, ¶¶ 23-28.
The challenged hearsay statements allowed in at trial were (1) the car owner’s and (2) detective’s description of the craiglist Ad’s written text and (3) their separate recitation of the Ad’s phone number and how that number led to defendant’s apprehension. The trial court admitted this testimony not for its truth, but to show the course of the bike theft investigation and the steps taken to arrest the defendant.
The First District held that the trial court improperly allowed the testimony concerning the Ad’s content in evidence. Ruling that the in-the-course-of-investigation exception didn’t apply, the Court pointed out that the car owner was not a member of law enforcement but was instead a lay person. As a result, her trial testimony about what the Ad said exceeded the limits of the exception.
The Court also found the detective’s testimony exceeded the scope of the course of investigation hearsay rule. He testified that he relied on the Ad to locate the subject bike and used the Ad’s phone number to connect that number to the defendant. The detective should have stopped there (since that testimony satisfied the exception).
But he went further: he also testified that his friend (the car owner) told him that the bike was being sold on craiglist, that he called the number on the Ad and that defendant’s cell phone rang when he called. The detective violated the hearsay rule by relying on the out-of-court statements – namely, the car owner’s description of the Ad and the phone number and picture featured on the Ad. The Court found that the Ad’s specifics were improper hearsay and should have been excluded by the trial court.
Jovan is interesting for its discussion of an atypical hearsay exception (at least in the civil litigation context). The course-of-investigation hearsay exception is broad but not without limits. Curiously, the State didn’t use the actual craiglist Ad at trial.
I was left wondering why it didn’t try to get the Ad into evidence under IRE 902’s self-authenticating rules for newspapers and periodicals. I would think craiglist is enough of a ‘Net household name – and similar enough to a generally circulated “newspaper” – that a print-out from the site would be sufficiently trustworthy to be utilized at trial. Jovan is also unique in the sense that the First District acknowledges that there was enough circumstantial evidence – aside from the craiglist Ad – to convict the defendant.
Even so, since the trial court relied so heavily on out-of-court evidence (the Ad), the conviction was reversed.