OMG - SJC rules text message now admissible under excited utterance exception to hearsay rule

On July 13, 2015, in Commonwealth v. Mulgrave (SJC-11569), the MA SJC ruled that text messages may be admissible under an exception to otherwise inadmissible hearsay, as excited utterance(s). The related facts are as follows: in March of 2012, the defendant was convicted of murder in the first degree on a theory of extreme atrocity, after being found guilty of stabbing his wife 12 times in their apartment. Shortly before the fatal attack, the victim sent a text message to her son reading, "He (defendant) is threatening to kill me I am scared he said if I pick up the phone he will kill me." Six minutes following this text, the victim called 911 and reported the defendant was stabbing her. After arriving at the scene two minutes later, a police sergeant saw the defendant exiting the apartment, covered in blood. The defendant allegedly said, "I just killed my wife" and was arrested.

On appeal, the defendant argued the judge erred in admitting the text message under the excited utterance exception to the hearsay rule in accordance with Mass. G. Evid. § 803(2) (2015). The SJC disagreed and affirmed the trial court's verdict, concluding the trial judge was not mistaken in allowing the text message in evidence.

Allowing the introduction of otherwise inadmissible hearsay under the excited utterance exception generally requires, (1) “there is an occurrence or event ‘sufficiently startling to render inoperative the normal reflective thought processes of the observer'”; and (2) the statement was “a spontaneous reaction to the occurrence or event and not the result of reflective thought.” Commonwealth v. Irene, 462 Mass. 600, 606-607, cert. denied, 133 S. Ct. 487 (2012), quoting Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). In Mulgrave, the SJC determined even though Massachusetts Appellate Courts have not yet approved the admission of any writing (including text messages) under the excited utterance exception to hearsay, the exception does not specifically exclude forms of writing. Indeed, the SJC expressly ruled that a writing can, in fact, satisfy the exception if there is a "heightened indicia of reliability."

So, what does Mulgrave signify? Essentially, the SJC opined there is no separate test for a writing to qualify as a excited utterance versus an oral statement. However, because pieces of writing require reflection, it must nonetheless be evident the writing is spontaneous. Here, the SJC found the underlying circumstances in which the text message was sent rendered it spontaneous and not a product of reflective thought. They went on to say that text messages are an instant form of communication similar to verbal communications. As such, a person who is familiar with texting might find texting as natural as making an oral statement; thus the sending of a text message should not negate the conclusion that it was a spontaneous reaction.

Is this decision sound? A brief review of the rule on hearsay helps the analysis. Essentially, the purpose of the rule against hearsay is to prevent statements made outside the courtroom from being admitted for their truth. This is because out of court statements are usually not made under oath, the jury is not able to see the demeanor and expressions of the person who made them, and the opposing party can not cross-examine the person who made the statements (i.e., the declarant) to ascertain the truth of the matter being asserted. For these reasons, most hearsay statements are not admitted because they are neither trustworthy nor reliable.

The logic behind allowing excited utterances into evidence despite the proscription against hearsay is that the declarant's statement, purportedly made shortly after, and in reaction to, a shocking event, is more likely to be truthful and accurate because the declarant has not had time to go through a reflective thought process. Under such circumstances, it is assumed to be an immediate reflexive reaction to the shocking event; a statement made without time to either think or reflect on what one is saying.

There is no doubt that the declarant in Mulgrave, i.e., the victim, was experiencing a truly shocking event – being attacked with a knife. Still, sending a text message seems more time consuming, deliberate, and requires more of a thought process, than does a verbal statement. Although at first glance admitting the related 911 call into evidence under the excited utterance exception appears similar to admitting the text message under the same exception, in reality it can be different. Writing requires both at least one more step, and more of a deliberate thought process. In a 911 call, the declarant is speaking and saying anything that comes to mind. However, when text messaging, more conclusive steps such as key punching, typing, and possible editing are needed to complete the communication, which in turn, could negate any spontaneity. Moreover, the declarant needs to access her device of choice, go through contacts, contemplate what she is going to write, type her thoughts, approve them, and then send. This process may require the declarant to actually think about what is being said before, and/or while, typing, thus involving a more reflective process - specifically, contemplating not only what is going to be typed, but how it's going to be phrased, because in order to write a sentence, a person usually has to organize their thoughts into a clear, comprehensible communication. Still, the SJC apparently sees things differently; I'm hard-pressed to disagree on facts like Mulgrave. (It's hard from any analysis to see why a text reading "help, help he's killing me" wouldn't qualify.)

That said, Mulgrave is on one level instructive in terms of appellate courts applying age-old (indeed common law) rules on evidence to modern technology and advances in how we communicate. On another level, it will be interesting to see where the line gets drawn here: is email so much less spontaneous and more deliberate that the exception won't apply and what about the "present sense" exception(s) to hearsay? Will real-time emails be the next "wall" to be breached, and will prosecutors eventually have limitless methods to bypass age-old proscriptions barring out-of-court statements by virtue of new technology. I'm not saying this is right or wrong. I am saying as with Betamax, 8 track, and rotary phones, it's possible the rules against hearsay could one day also become a relic of the past.

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