TEXT MESSAGE CAN BE ADMISSIBLE UNDER SPONTANEOUS UTTERANCE EXCEPTION TO THE HEARSAY RULE

In Commonwealth v. Mulgrave, the Supreme Judicial Cout of Massachusets (SJC) ruled that a cellular telephone text message sent by the defendant’s wife shortly before her death was admissible under the spontaneous utterance exception to the hearsay rule. The case arose from the stabbing of his wife by the defendant in the context of their deteriorating marriage. “The defendant conceded guilt as to murder in the second degree but argued that depression rendered him incapable of the elevated mental state required for murder in the first degree.” In the text message in question, the victim stated to her son, “‘He is threatening to kill me I am scared he said if I pick up the phone he will kill me.’ Six minutes after that, … she telephoned 911 and frantically reported that her husband was stabbing her.” “Only a few minutes after that, she was found barely breathing and lying in a pool of blood.” In its decision, the SJC noted that the “Massachusetts appellate courts had not previously approved admission of text messages or any other writing under the spontaneous utterance exception to the hearsay rule,” but that “we have acknowledged that a written statement may be considered a spontaneous utterance if it satisfies … heightened indicia of reliability. Such indicia of  reliability were present: “the tone and manner of the declarant, as evidenced by the writing itself, supports a determination that the victim’s statement was spontaneous, and thus reliable…. The message was one sentence without any punctuation. It related only to the circumstances of the threat to the victim’s safety and her reaction (fear) to that threat.” Moreover, the text message was admissible because, as required, it “satisfied the confrontation clause of the Sixth Amendment,” which “‘bars the admission of testimonial out-of-court statements by a witness who does not appear at trial unless the witness is unavailable to testify and the defendant had an earlier opportunity for cross-examination.’ The Court “disagreed with the defendant’s characterization of the” text message as a “testimonial” statement, i.e., one that a reasonable person in the victim’s position would anticipate being used against the accused in the prosecution of the crime. “Rather, the statement is more properly characterized as one made in the context of an ongoing emergency for which the victim sought assistance.”

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