Archives for February 2014

Craigslist Ad = Improper Hearsay Evidence at Bike Theft Trial

bikeIn 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.

Reasoning:

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.

Afterword:

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.

Settlement Agreement Construed Like Any Other Contract

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This one naturally resonated with me as I’ve experienced how time-consuming and expensive it is to monitor and enforce a settlement agreement that, in theory, ended the case.

In Sprint Nextel v. AU Electronics, Inc., 2014 WL 2580, the parties executed a written settlement agreement ending litigation involving defendants’ illegal sale of Sprint cell phones.  The agreement required the defendants to make several installment payments in exchange for Sprint dismissing the suit and not enforcing the agreement’s consent judgment term.

A month after the settlement agreement was signed, government agents raided defendants’ corporate offices (as part of a crackdown on cell phone trafficking), took its equipment and slapped a $1,000,000 lien on the corporate bank account.  Convinced that Sprint was behind the raid, the defendants repudiated the settlement agreement and Sprint moved to enforce it.  The Illinois Northern District granted Sprint’s motion.

The Court enforced the settlement agreement under basic contract interpretation rules.

A district court has inherent power to enforce a settlement agreement in a case before it;

–  A settlement agreement is a contract and state contract law governs the construction and enforcement of a settlement agreement;

– The terms of a settlement are based on the parties’ intent derived from the objective language of the agreement terms;

– A settlement agreement is effective when arrived at unless the parties specify that it’s subject to contingencies.

– A binding contract must contain an offer, acceptance and consideration and a meeting of the minds on all material term;

– Consideration means “bargained-for exchange” – where the promisor receives a benefit in exchange for his promise;

A “meeting of the minds” is based on the parties’ objective manifestations of intent;

–  A “material term” is one so essential to the contract that it wouldn’t have been made without itSprint, *4-5.

Here, all contract elements were present: the settlement agreement clearly delineated the parties obligations, it recited consideration and was signed by the defendants.  Consideration existed too:  Sprint agreed to dismiss the suit and forbear from executing on the judgment as long as defendants made the payments.  Sprint also established defendants’ breach (the repudiation of the settlement) and damages – defendants’ refusal to comply with the settlement meant that Sprint would now have to spend more time and money litigating the case and would not receive the installment payments.

The defendants’ tried to defeat the settlement agreement under rescission and commercial frustration theories.  The Court rejected both arguments.  Defendants’ rescission attempt was based on Sprint’s supposed breached of the agreement’s confidentiality/non-disclosure provisions.  The Court nixed this argument because the non-disclosure provision wasn’t a material term of the settlement agreement.

Under Illinois law, only a material breach will merit rescinding a contract.  Sprint, *9.  Here the material terms were simple: (a) Sprint dismisses the suit; and (b) defendants make payments.  The non-disclosure term was viewed as collateral to the agreement’s main purpose.

The Court also rejected defendants’ commercial frustration defense.  A sparingly used doctrine, a commercial frustration defense requires a showing that (1) the frustrating event was not reasonably foreseeable, and (2) the value of counter-performance has been totally or nearly totally lost or destroyed by the frustrating event.

The Court labeled the commercial frustration test as “rigorous” and “demanding.”  The Court held that the government’s raid on the corporate defendant’s office was reasonably foreseeable given that defendants were involved in a criminal enterprise and under investigation by state and Federal authorities.  Also, the defendants’ performance of the settlement terms wasn’t completely foreclosed.  The individual defendants’ bank accounts were not frozen by the government.  This made it possible for defendants to perform under the settlement agreement by paying the installments to Sprint.

Afterword: Monitoring compliance with and enforcing settlement agreements often leads to protracted, “satellite” litigation.  It can be tedious and demoralizing to realize that you are spending more energy (and money) babysitting and litigating the settlement than you did in the underlying case!  The Sprint case, in back-to-basics fashion, shows that settlement agreements are enforced like any other contract.

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7th Circuit Takes Archaic Hearsay Exceptions to Judicial Woodshed

Decrying them as flawed “folk psychology” with dubious philosophical underpinnings, the Seventh Circuit recently took two venerable hearsay exceptions to task in the course of affirming a felon’s conviction on a Federal weapons charge.

In U.S. v. Boyce (here), the Court affirmed the trial court’s admission of a 911 call recording and transcript into evidence over defendant’s hearsay objections under the present sense impression and excited utterance exceptions.

Defendant’s girlfriend called 911 and said that the defendant was beating her and “going crazy for no reason”.  During the call, she also related how she had just run to a neighbor’s house and that the defendant had a gun. 

When the caller refused to testify against the defendant at trial, the prosecution published the call’s recording and transcript to the jury over defendant’s objection.  Defendant appealed.

The Seventh Circuit affirmed the conviction on the basis that the 911 call satisfied both the present sense impression and excited utterance hearsay exceptions, codified in FRE 803(1) and (2) respectively. 

Yet it still spent much of the opinion questioning the continued validity of the two “spontaneity” hearsay exceptions.   

Present Sense Impression

FRE 803(1) – the present sense impression – provides that an out-of-court statement describing or explaining an event while it’s happening or immediately after the declarant perceives it, is not hearsay. 

The exception is premised on the notion that the “substantial contemporaneity” of event and statement nullifies a likelihood of conscious fabrication (e.g. the speaker doesn’t have enough time to lie).

The present sense impression elements are (1) a statement that describes an event or condition with no calculated narration; (2) the speaker personally perceives the event or condition described, and (3) the statement must be made while the speaker is perceiving the event or condition, or immediately thereafter. 

The Court found it difficult to take the rationale underlying the present sense impression exception “entirely seriously” since “people are entirely capable of spontaneous lies.”  The Court bolstered its skepticism by citing to a psychological study that shows it takes less than a second for someone to fashion an impromptu lie.

Excited Utterance

The excited utterance hearsay exception is broader than the present sense impression and applies where (1) a startling event occurs, (2) the declarant makes the statement under the fresh stress of a startling event, and (3) the declarant’s statement relates to the starting event.  

It’s bottomed on the notion that a startling event will prevent a speaker from deliberation or “self-interested reflection” and likely produce an utterance free from calculation or fabrication.

 But the modern trend in psychology, according to the Court, was to recognize that while a stressor may minimize a speaker’s opportunity for reflective self-interest, it’s just as likely (if not more) that the startling event will distort the speaker’s observation and judgment.

Judge Posner’s concurrence goes even further.  He labels the hearsay rule archaic and too complex and also castigates the two “spontaneity exceptions” (present sense impression and excited utterance) as lacking sound science and psychology. 

He views the exceptions as outmoded relics of a prior era that no longer hold water in 21st century culture – especially in light of ongoing developments in cognitive psychology.  Judge Posner believes the 911 call should have come into evidence under FRE 807’s “residual” hearsay exception – a rule he would like to see swallow up FRE 801-806. 

The residual hearsay rule would allow into evidence out-of-court statements that have a sufficient degree of trustworthiness and reliability and that are dispositive of a case’s outcome.

Take-away: Boyce is interesting for its discussion and critique of the data and belief systems underlying the present sense impression and excited utterance hearsay exceptions.  Clearly, time-honored (but not tested) rationales for the rules are suspect. 

The reason: most lies are spontaneous and actually outnumber planned lies (this according to studies cited by the Court).  It will be interesting to see if and when the present sense impression and excited utterance exceptions are either updated or excised completely from Federal and state court trials.