Evidence Out-of-Bounds: Why Lloyd text messages in the Hernandez murder case were ruled inadmissible

Evidence Out-of-Bounds: Why Lloyd text messages in the Hernandez murder case were ruled inadmissible

So what was this ruling all about in the Aaron Hernandez (Odin Lloyd) murder case that had everyone talking last week? Did Judge Susan Garsh blindside the prosecution by ruling the deceased victim's text messages to his sister before he was murdered inadmissible ( i.e., can't be used against Hernandez)? Was her ruling a surprise and/or was it another example of the defense outmaneuvering, and out-lawyering, the prosecution? The answer to all those questions is a simple, "not really." Essentially, what Judge Garsh did is follow basic "Evidence 101." Okay, that's slang and I admit there is no such-named class, but her ruling is consistent with something every 2L learns in "Introduction to...." or "Basic Evidence." Since I seem to be temporarily on hold with my regular TV gig as a legal analyst for FOX25 (new ownership, don't 'cha know), let me try to explain it to you here.

One of the principle rules of evidence is that something called hearsay evidence is not allowed (barred from being introduced) at trial, or in other adversarial proceedings. What is hearsay? Generally, hearsay is an out of court statement by a declarant (speaker), who is not available at the time of trial, which is being offered for the truth of the matter asserted, or restating the last clause in more plain English: offered to establish that what was said is true. How did this relate to evidence against former New England Patriot Aaron Hernandez in the Odin Lloyd murder trial? Well, amongst other things, in what has evolved into an extremely circumstantial case for the prosecution, (which doesn't necessarily mean it's weak; Judge Garsh will eventually instruct jurors that despite two kinds of evidence, direct or circumstantial, a jury may find a defendant guilty as a result of either kind of evidence, or a combination of both, as long as proven by the prosecution beyond a reasonable doubt), the prosecution hoped to introduce a series of texts purportedly from the victim, Odin Lloyd, to his sister in the hour or so before his murder, in which he says "I'm with 'NFL.'" Prosecutors ("the Commonwealth") planned on Mr. Lloyd's sister testifying she and her brother referred to Hernandez as "NFL" and wanted to use his text message to prove that the former Patriots tight end/wide receiver was one of the last people Lloyd was with before he was killed. In a prosecution apparently devoid of any eye-witness (now that co-defendant Carlos Ortiz has apparently recanted prior statements to law enforcement and refuses to testify for the prosecution) as to how Lloyd's bullet-riddled body wound up in an Industrial Park not far from Hernandez' North Attleborough (MA) home, that's pretty damning evidence, and an important link in the solid chain of circumstantial evidence the Commonwealth is hoping to forge at trial. Let's break it down in terms of the hearsay exclusion.

Is it an out of court statement? No question ("statements" don't have to be verbal). A text message sent some 18 months prior to the (prospective January 9) trial, is the very definition of an out of court statement. Is the declarant unavailable? Sadly, and tragically, he is. The text was purportedly sent by the victim, Odin Lloyd, and not to be callous but, one can't get more unavailable than being dead. Is the text being offered for the truth of the matter asserted? You bet it is. The Commonwealth clearly intended to use it to prove Lloyd was with Hernandez right before he was killed. That's about as demonstrative of "truth of the matter asserted as it can get;" and if you got each answer right without my prompting, "congratulations," you have a general understanding of hearsay.

So if the text is so patently inadmissible, why did the Commonwealth even suggest they intended to use it nonetheless (and/or oppose the Hernandez Defense Team's appropriate motion to keep it out)? Well, the reality is hearsay isn't quite as simple as I have described it—but you probably knew that—and no Evidence Professor is going to give an exam question as easy as what I've just outlined. This is because in addition to inadmissible hearsay, we have two further categories: Exceptions to the rule prohibiting introduction of hearsay evidence and out-of-court statements that are not considered hearsay to begin with, the former because, even though offered for the truth, their nature is deemed "inherently reliable," the latter because they aren't being offered for the truth. In this instance, the prosecution seemed to be coming at the issue with a combination of both.

First, they argued the text(s) fell under the exception allowing introduction of out of court statements of impending death, other times called "dying declarations." Citing this exception, the prosecution tried to claim Lloyd sent his sister the text informing her he was with Hernandez because he knew he was going to be killed/murdered. Because someone facing imminent death was perceived at Common Law as not likely to be motivated to lie about it (perhaps a bit archaic of a notion), statements of this nature are usually allowed. However, here, the prosecution presented no evidence tending to establish Lloyd knew he was going to die, so Judge Garsh, characterizing the Commonwealth's proffer as purely "speculative," properly excluded it on those grounds.

Next, the prosecution attempted to argue the text wasn't hearsay because it reflected Lloyd's state of mind and/or present sense impression and was , thus, not being offered for the truth of what was asserted (that he was with Hernandez) but instead, of what he was thinking. According to the prosecution, what he was thinking was he was afraid or nervous, and that's why he texted his sister; in case something were to happen to him. Once again, Judge Garsh rejected this theory again saying it was speculative and there was no proof he was afraid, and also because, on its face, it was no more than an assertion about who he was with. Third, the prosecution appeared to kinda', sorta', suggest it could also be an excited or spontaneous utterance that was similarly reliable as the declarant (Lloyd) had no time to fabricate, but that claim was tepid and effectively went nowhere.

So did Judge Garsh get it right? Given that the prosecution failed to make any credible showing that Lloyd thought/knew he was going to be murdered, and because it's been my experience as a long time criminal defense attorney that prosecutors are way too fond of using "state of mind" evidence to circumvent hearsay proscriptions (and that many judges are either far too lenient, or too lazy, to prevent them), I believe she did get it right, at least in terms of what I understand the evidence to be. Still, state of mind evidence is enough of an evolving paradigm that I can see the Commonwealth taking an interlocutory (immediate) appeal to a single justice of the SJC under Mass. Gen. Laws ch. 231 § 118 on those grounds to try to reverse Judge Garsh's ruling that Lloyd's texts are inadmissible. If they do, you can bet they consider her ruling a big blow to their case in chief. If they don't, it can be fairly construed they are still confident with the evidence they believe they can introduce against Hernandez.

Also, it's been awhile since I reviewed the Commonwealth's evidence in this case, but I thought I recalled prosecutors saying during Hernandez' initial bail hearing that the text about being "with 'NFL'" was coupled with the phrase "just so you know." If my recollection is correct about that, and it may not be, that changes the calculus and Judge Garsh's ruling could be reversed on grounds that Lloyd also "saying" something like that does, in fact, suggest he was apprehensive or concerned; state of mind evidence the SJC just might agree isn't offered for the truth. If my memory is incorrect about this, though, the Commonwealth will not only have to hope that what they still do have in terms of admissible evidence is strong enough to carry the day, but also that the lead prosecutors in the Hernandez case paid better attention in Evidence Class than they've shown so far.

About the author:

Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA) where he prosecuted murders, sex crimes and serious narcotics trafficking cases. He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston. A five time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale and has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law to defend clients accused of felonies in both state and federal courts in MA, NY and throughout New England and across the country. He routinely represents clients charged with murder at trial, and on appeal.