Admissability of THR comments?

[Frank Ettin]

...IANAL, but as I understand it, the hearsay rule only applys to evidence that can help you. The prosecution can introduce any of your out-of-court statements he wants. You can't introduce your posts as evidence -- that would be hearsay.

P.S. The hearsay rule in a nutshell is that evidence of out-of-court statements is not admissible if the person who made them can testify the same things in court. The reason the prosecution can use your out-of-court statements is that he can't call you as a witness due to the 5th amendment....

I am a lawyer, and that's not quite right.

Hearsay is an out of court statement offered to prove the matter asserted. That is the basic legal definition of hearsay. It is usually inadmissible, but there are many exceptions.

Let's say that Bill overheard John tell Fred (Fred is on trial) that Jim hit Martha and put her in the hospital. I could not put Bill on the witness to testify as to that if my goal in doing so was to prove that Jim hit Martha. John's out of court statement can't be used to prove the battery by Jim.

However, I could most likely introduce Bill's testimony for the more limited purpose of showing that Fred had reason to believe that Jim had hit and injured Martha. If I were prosecuting Fred, I might want to do this to show that Fred had a motive for breaking into Jim's house and killing him.

Might the defense ever want to introduce testimony like Bill's? Let's say the the circumstances and evidence are such that Fred is toast. The prosecution will have no trouble, without Bill's testimony, convincing the jury that Fred in fact broke into Jim's house and killed him. Now the best the defense can reasonably hope for is a conviction for manslaughter instead of murder. Therefore, the defense might introduce Bill's testimony to support the argument that Fred went after Jim in a blind irrational rage provoked by the belief that Jim assaulted and injured Martha. Doing so could negate the state on mind, malice, required for murder thus making Fred's crime manslaughter.

Thus the out of court statement can be used to show state of mind. And, as mentioned earlier, the most common exception to the hearsay rule is statements by a party. The primary reason an out of court statement by a party is admissible, notwithstanding the hearsay rule, is that the party is there in court and therefore available to rebut or clarify his out of court statement.

...As to admissability, that is another story. It must be relevant and material to prove a fact at issue....

Yes, it must be relevant and material, but I don't see this as being very helpful for planning. I can't sit here at my keyboard and say to myself, "It's okay to post this; it's not relevant or material." The thing is that you really have no way of knowing that at that time.

Suppose for example that you posted that in response to multiple attackers on your child, you would open up with your AR/AK and kill everyone in sight regardless of whether they were armed or a threat to your child....Now, you are involved in a similar shooting where that is what you did. Can your comment be used to show that you acted in accordance with your prior posted statement?...

Actually, depending on the exact circumstance, it might well be admissible. First, it's a statement by a party and therefore within an exception to the hearsay rule. Second, it may be admissible for the purposes of showing state of mind.

A lot depends on the exact statement and the exact circumstances of the event. The devil is in the details. But do you really want to count on such a statement not being put before the jury if you're on trial in connection with a claimed self defense shooting? Personally, I'd rather not have a statement like that attributable to me floating around in cyberspace.

 

[emb]

Fiddletown. I don't necessarily disagree with you. A lot depends on the circumstances and what someone is trying to prove. As you stated and I inferred, I don't want a statement like that attributable to me.

The point is that I don't analyze my posts by what would be relevant and material to any particular cause of action. I don't think any person of reasonable sense would. I do pay attention to whether my words, in and of themselves, could be actionable. You just never know who is reading them.

There are quite a few rules of evidence that apply to a person's statements, whether written or oral. The fact patterns are just too variable to devine a general rule. A slight change in the facts alters the outcome considerably.

Where I was going with my comments was twofold. First, using a statement to prove that that a person acted in accordance with that statement, my example, probably can't be used. Improper character evidence and undue prejudice come to mind.

However, statements here can be an admission of a party. But that has parameters as well. It is not just any old statement of a party or defendant. The rule is just not that broad.

Second, your words can also be defamatory and therefore actionable in and off themselves. Statements of a defamatory nature are not excluded by the hearsay rule. They simply are not hearsay. The statement is offered only to show that it was made. By its very nature, the truth of the statement is irrelevant.

In trial we usually have a good bit of time to determine evidentiary problems and solutions for a fairly specific set of facts. Depending on the circumstances, the statements may or may not be used as evidence. Hopefully, we are not trying to give legal advise upon a particular legal problem. The question as I understood it was very general.

The initial question was whether statements made in this forum can be used in a civil or criminal trial. The short answer is yes they can. But that depends entirely on the circumstances and what they are offered to prove. Simply becasue a statement was made by a party or defendant doesn't make it admissable. On the flip side, we all know of examples where email and forum statements were properly used as evidence.

Back to my final point and your comment. Don't put statments in writing here that you don't want attributable to you. That goes beyond my AK/AR example. It can also extend to the advice freely given to others on this forum, legal or otherwise.

Courteous and polite discourse should rarely cause anyone any problem.

 

[Frank Ettin]

Let's not make this more complicated than it needs to be.

The initial question was whether statements made in this forum can be used in a civil or criminal trial. The short answer is yes they can....

That is indeed the short answer. I can not, as I sit here at my keyboard, blithely assume that I can type anything I want because it's the Internet, and anything I say would be inadmissible later on in a legal proceeding. Although what I say may be hearsay, it is likely to come within an exception to the hearsay rule; and I'm not as anonymous as I may believe. The core point is that just because this is the Internet doesn't guarantee that my words will not someday be thrown in my face.

The foregoing is the threshold issue. Later on there's the question of whether particular statements are or are not admissible. The answer to that question will turn on whether a particular statement is actually evidence -- is relevant by being probative of a fact that is material in the litigation.

Thus posts in which you wish X a happy birthday are unlikely to be evidence of much of anything. However, if you're on trial in a matter involving your use of lethal force in claimed self defense, posts from which one could reasonably infer information about your understanding of the rules governing the use of lethal force or your attitude toward the use of lethal force could very well make it into evidence.

 

[emb]

Fiddletown. I agree. Well stated!

 

[SHvar]

An example I seealot of here.
Examples of "If I were in that situation I would.... without hesitation"..
People ask alot about situations, and possibilities, and what others would do. Recently there was a discussion and a few responded with comments about how they would shoot to protect property, and continued to say that in their state its justified because you can defend YOURSELF with deadly force,
nowhere does it say your property while in a public place.
This is an example of how admitting that you would break the law and use deadly force can be used against you, whether in a law suit or criminal court.
There are always people responding about how they would shoot first and ask questions later with someone breaking in their house, with someone approaching them in public, someone of middle eastern background walking up to them etc etc etc (yes, this one isnt hard to find)
If I spent a few hours reading the last posts here I could find hundreds of comments that could be used as evidence if the poster involved were to commit a crime that has a situation similar to what happened in some way shape or form.
This is why I say, you are not anonymous in any way, and dont expect the website admins to refuse to give up any information to a court order, this would put them in the situation making themselves supporters of criminal activities, and on this site it is constantly mentioned that we dont post about illegal activities, this is the high road.

 

[Frank Ettin]

Just in case anyone has trouble sleeping tonight, this link will take him to the Federal Rules of Evidence provisions on hearsay: http://expertpages.com/federal/a8.htm.

This is in effect the "hearsay rule" in federal court. Notice the many exceptions to the general inadmissibility of hearsay.

 

[Loyalist Dave]

The problem is that if there is suspicion that a post was authored by a particular individual, and that individual is subsequently questioned directly and under oath as to whether or not it is theirs, denial involves perjury.

[No person] ..., shall be compelled in any criminal case to be a witness against himself..., not answering at all is a 5th amendment right.

Again, let me remind those in this discussion, while posts may lead an investigator to a suspect, the posts alone will NOT give you enough probable cause to charge anyone. The question was whether your posts may be held against you...., providing they can remove reasonable doubt that you are the only person who posted the items..., they might be part of a much larger case, but alone..., no.

Mr X is a controversial figure who is found hanged in his home, and later it is determined he was murdered. Blogger Q who lives in the same town remarked in an online post three days prior to the murder, I wish I could find the home of Mr. X. ...., He should be hanged. This would be enough to further investigate Blogger Q, to question Blogger Q, but NOT to arrest and or charge Blogger Q. Blogger Q would be within his rights to refuse to talk to me if I was the investigator. I would need waaay more than an open forum post to get a search warrant for his computer. I'd have to show first why I reasonably believed Blogger Q posted the remark, then I'd have to show proximity, opportunity, and ability. Otherwise, my mere suspicions would not be enough for such a warrant, and nowhere near an arrest warrant's probable cause.

LD

 

[Blackbeard]

fiddle - leave it to a lawyer to complicate things! j/k thanks for the clarification. I know there's a list of exceptions to the hearsay rule as long as your arm.

 

[Kleanbore]

while posts may lead an investigator to a suspect, the posts alone will NOT give you enough probable cause to charge anyone.

If the investigation has to do with whether or not a homicide was justified, I don't think the investigator needs to be led to the suspect. The identity of the suspect will not be in question.

What will be in question include the facts about the shooting and about what led to it.

I think there are two areas in which internet posts may prove germane. One is the potential for a post showing state of mind. The other is the possibility that a post written after the incident may contradict what the actor told the police or what the defendant has testified in court, damaging his credibility.

As a lay person, I fail to see why either might not affect the charging decision, the decision of whether or not to return an indictment, or the outcome in trial court.

 

[sohcgt2]

Its absolutely admissable in civil court where the rules are more relaxed.

 

[Guns and more]

If you were being tried for a crime, I'm sure any postings you made on the internet would be used against you.

Think about school shootings, and how the perps had posted letters on the internet stating their intentions.
It would be used to convince a jury (or judge) of your state of mind.
The prosecutor will find everything, if he wants to.

 

[SHvar]

If you were on trial for a crime, and they had evidence, physical, etc. The authorities would add your internet postings ,and whats on your computer to the evidence (its like you dug your own grave beforehand).
The prosecution would show that you had intention to do so, that you planned it out, that you knew what to do, you knew to lie in your defence, and that it would fall under more serious charges, not a crime of passion, nor a spur of the moment decision.
The posts would not be as important as the physical evidence, but it would show you had intention, and that you thought it out beforehand.
Its makes a difference in murder cases of murder 1 to murder 2 or manslaughter. But other crimes and charges could not be pleaded down with intention to commit.
You would be in that sense, hanging yourself with your own words.

 

[Loyalist Dave]

Think about school shootings, and how the perps had posted letters on the internet stating their intentions

AGAIN..., the postings came from personal computers in the dead or arrested perps homes, where it was reasonable to conclude they were the only ones using the machines.

LD

 

[JohnKSa]

AGAIN..., the postings came from personal computers in the dead or arrested perps homes, where it was reasonable to conclude they were the only ones using the machines.

The focus of this thread primarily about being involved in a self-defense shooting and having some ill-advised post come back to haunt you. NOT having posts lead authorities to a suspect who wasn't known to the investigators until they found his posts.

In other words, the person making the posts is ALREADY the focus of an investigation to determine if a shooting (or homicide) is justified or not. In that context, arresting the person and getting/searching the person's computer is not going to be any problem at all.