A Memo On Hearsay

MEMORANDUM

ISSUES

I. Whether the e-mails written by Summer and Ryan are admissible, and if so, for what purpose(s)?

II. Whether the dating privilege applies to Summer.

III. Whether the seizure of the packet of white powder was proper.

SHORT ANSWERS

I. The e-mails written by Summer and Ryan are admissible because they express the feelings and mental states of both Summer and Ryan, and those feelings are material to this case. In addition, the e-mails can be authenticated and are therefore admissible as evidence.

II. The dating privilege does not apply to Summer because under both the "factor approach" and the "definitional approach" Summer and Ryan do not have a "dating relationship."

III. The seizure of the white packet was proper because the "plain view" doctrine applies in this case. The police officer acted reasonably when he pulled Ryan over for a broken tail light, and since he inadvertently came across the packet of white powder, the seizure was proper.

DISCUSSION

I. THE E-MAILS ARE ADMISSABLE IN ORDER TO HELP ESTABLISH WHETHER SUMMER AND RYAN WERE DATING.

The Federal Rules of Evidence provides: "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). Although hearsay is inadmissible at trial, an exception to the hearsay rule applies when the declaration is material to the issues under trial and is that of "intention, feelings, or other mental state of a certain person at a particular time, including bodily feelings. . . ." Adkins v. Brett, 184 Cal. 252, 255 (1920). In Adkins, the court held that prior statements made by a wife to her husband, although hearsay, were admissible because the statements expressed the wife's feelings towards her husband, and those feelings were material to the case. Id.

Furthermore, the government cannot offer e-mail into evidence without proper authentication; proper authentication is a condition precedent to a document's admissibility as evidence. U.S. v. Siddiqui, 235 F.3d 1318, 1321 (11th Cir. 2000). "A document may be authenticated by Ð''[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.'" Id. (quoting Fed. R. Evid. 901(b)(4)). In Siddiqui, the court held that e-mails between two parties were authenticated by the e-mail address and the signature included in the e-mails. 235 F.3d at 1321.

In the present case, whether Ryan and Summer are dating is material to the trial because Summer wants to invoke the dating privilege (see infra). Although the e-mails between Ryan and Summer are hearsay, they are admissible because they can help determine if Ryan and Summer have a "dating relationship." These e-mails fall under the hearsay exception because they include information about the mental state and feelings of Ryan and Summer. For instance, in one of the e-mails, Summer tells Ryan that she looks forward to their exchanges and that they have become special in their own way. In another e-mail, Ryan tells Summer that he feels a strong connection to her and that he's never felt like that with anyone before.

In addition, the e-mails are admissible because they can be authenticated. The e-mail address Ryan uses to contact Summer is the same address which Summer uses to write her friend, Jen. Furthermore, both Summer and Ryan's e-mail addresses are at the "dating.com" domain name, which supports the fact that they are authentic. In addition, the contexts of the e-mails indicate that the authors would be people who were familiar with the details of Summer and Ryan's encounters.

II. THE DATING PRIVILEGE DOES NOT APPLY TO SUMMER.

The Federal Rules of Evidence provide: "An accused in a criminal proceeding has a privilege to prevent the person he is dating from testifying against him." Fed. R. Evid. 505(a). This privilege may be asserted "by the accused or by the person he is dating on his behalf." Fed. R. Evid. 505(b). Although there is no case on point defining the term "dating" in the context of the dating privilege, courts across the country have attempted to define the words "dating relationship" in the context of state domestic violence acts. Andrews v. Rutherford, 363 N.J. Super. 252, 258 (2003).

In Washington, a "dating relationship" refers

to serious courtship. It is a social relationship between two individuals who have or have had a reciprocally amorous and increasingly exclusive interest in one another, and shared expectation of the growth of that mutual interest, that has endured for such a length of time and stimulated such frequent interactions that the relationship cannot be deemed to have been casual.

Oriola v. Thaler, 2005 Wash. App. LEXIS 821, 828 (2005). In North Carolina, a dating relationship is defined as one "wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship." Andrews, 363 N.J. Super. at 258 (quoting N.C. Gen. Stat. Ð'§ 50B-1 (2003)). However, the Superior Court of New Jersey has held that determining if a relationship is in fact a dating relationship is fact sensitive and "warrants a Ð''factor approach' rather than a Ð''definitional approach', similar to the approach used in Vermont, and Massachusetts." Andrews, 363 N.J. Super. at 258. The Andrews court found that six factors should be considered in determining whether a dating relationship actually exists. Id. These factors include: interpersonal bonding between the parties, length of dating activities, nature of interactions, each party's expectations with respect to the relationship, affirmation of the relationship, and other reasons unique to the case that support or undermine a finding that a "dating relationship" exists. Id. at 259.

In the case at bar, using both the "definitional approach" and the "factor approach" by analogy, there is no dating relationship between Summer and Ryan. Under the "definitional approach," a dating relationship needs to be reciprocally amorous and requires exclusive interest in one another. In the present case,