Accusatory Texts Are Inadmissible Hearsay in Oregon Court

Oregon Supreme Court determines that text messages sent by victim with the assistance of the police are non-admissible hearsay

State v. Schiller-Munneman, 2016 BL 210679, Ore., No. SC-S063526, 6/30/16.

   The Oregon Supreme Court found that text messages sent by a victim of sexual assault without a response by the defendant are inadmissible evidence under Oregon’s hearsay laws. After being assaulted, the victim, with the assistance of the local police, sent text messages to the defendant asking him several questions about the assault with the intention of having him confess or admit culpability. Instead, there was no response.

   The prosecution in the case wanted to draw attention to the lack of response by the defendant to support their case against him. The court, however, found that such evidence was impermissible under Oregon law because the sent messages were not questions, but statements within the context of the situation. Additionally, the court refused to admit the texts under the “adoptive admission” exception under the hearsay rule, which would allow a no-response to be adopted as the defendant’s manifestation of his agreement to the truth of the statement. The court declined to accept this argument as well, stating the rule cannot apply because several contradictory inferences can be reasonably made from the silence.

   In addition, the court refused to answer whether the Fifth Amendment blocks prosecutors from commenting on an accused’s pre-arrest and pre-Miranda right to remain silent.

https://www.bloomberglaw.com/public/desktop/document/State_v_SchillerMunneman_No_SC_S063526_2016_BL_210679_Or_June_30_?1467833090

Showing Sexual Messages on Phone Counts as Sending a Message Under Statute

Man convicted of criminal sexual communication with a child by showing explicit images through handing phone over to a child to directly show the explicit pictures

State v. Tufts, 2016 BL 175227, N.M., No. S-1-SC-35255, 6/2/16.

    The New Mexico Supreme Court found that a man “sent” sexually explicit images to a child by directly showing pictures on his phone to the child. Initially, the trial court convicted the man for sexual communication with a child, but was later reversed by the appellate court over its interpretation of “to send.” On appeal, however, the New Mexico Supreme Court looked at the intent of the statute, finding that it was created to protect children from obscene images produced, stored, or distributed on an electronic device. They noted, that while a third-party carrier may be involved, communication can “occur by delivering the electronic communication device containing the obscene images of the defendant directly to the child.” Moreover, the court concluded “Whether a digital camera, a video recorder, or a cell phone is handed directly to a child or an image is electronically transmitted to one of those devices, the effect of the conduct and the resulting harm to the child—access to obscene electronically generated images via an electronic communication device—is the same.”

http://www.bloomberglaw.com/public/document/State_v_Tufts_No_S1SC35255_2016_BL_175227_NM_June_02_2016_Court_O

Losing Ambiguous Text Messages Does Not Violate Due Process

A defendant's due process rights were not violated when the government failed to preserve text messages he had sent regarding the assault.

 

United States v. Harry, 2016 BL 58901, 10th Cir., No. 14-2160, 2/29/16

     During an investigation, incoming text messages were recovered from the defendant's phone, but the prosecution was unable to obtain any outgoing text messages. The defendant argued that the outgoing messages were exculpatory, and the prosecution's failure to preserve them violated his due process rights.

     The court ruled that the failure to preserve evidence violates due process only if the evidence was exculpatory and its exculpatory value was apparent before its loss. If the evidence was not obviously exculpatory but "potentially useful" the failure does not violate due process, absent bad faith. Here, the exculpatory value was not apparent, and there was no evidence of bad faith.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Harry_No_142160_2016_BL_58901_10th_Cir_Feb_29_201?1457718203

Texting-While-Driving, Almost Unenforceable in Indiana

Seeing a motorist doing something on their phone does not, by itself, give reasonable suspicion to stop them for violating the texting-while-driving ban.

 

United States v. Paniagua-Garcia, 2016 BL 46039, 7th Cir., No. 15-2540, 2/18/16

     The defendant was pulled over because the officer said that he "appeared" to be texting on his phone's key pad. The court ruled that because it was just as likely that he was doing something that was not prohibited, the officer did not have reasonable suspicion. The Indiana law bans texting, but allows all other uses.

     The state's argument essentially claimed that the mere possibility that someone is engaging in a criminal act creates a reasonable suspicion. The court determined that this is too broad, and that "[w]hat [the government] calls reasonable suspicion, we call suspicion."

     There was no evidence of erratic driving or anything else to bolster the police officer's suspicion. The court said that if the government stance was correct, the police could stop any driver they saw drinking from a coffee cup on the suspicion that the coffee was spiked with booze because it is illegal to drink alcohol while driving.


http://www.bloomberglaw.com/public/desktop/document/United_States_v_PaniaguaGarcia_No_152540_2016_BL_46039_7th_Cir_Fe?1456852336