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Blog Post Solves Murder:
The details are here, and a media account is here. Hat tip: Instapundit.

  Extra credit question for law students and litigators: Is a computer printout of the blog post admissible at trial? Comments enabled for your answers.
Patrick McKenzie (mail):
It would seem to me that the blog post is hearsay (it is a written statement offered as evidence, made by a declarant who is not present at trial), and that it doesn't fall under the dying declaration exception because the poster wasn't aware of their impending demise, as is manifestly demonstrated with the preoccupation with the report rather than, say, trying to exit the area or summon police. (Federal Rules of Evidence 804b #2, "Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.")

How's that for someone whose legal education consists of Law &Order reruns and Google?
5.25.2005 2:44am
Patrick McKenzie (mail):
On the other hand, it could be admitted under rule 807, which provides for Residual Exceptions -- "A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant." The statement certainly covers a material fact (the defendant was present with the victim shortly before his death), that evidence may not be otherwise available, and the interests of justice are probably best secured by not letting the killer walk. But again, I am not a lawyer.

Patrick McKenzie
5.25.2005 2:49am
Crime & Federalism (mail) (www):
Two issues. First, hearsay. Second, authentication. I'll refer VC readers to this document, which answers the authentication question:
http://www.usdoj.gov/criminal/cybercrime/usamarch2001_4.htm

Re: Hearsay. It's would likely fall under the then existing state of mind exception (I want him to leave, I don't feel comfortable with him here, etc.) or present sense impression (He's here, he's a loser, etc.). Crawford v. Washington wouldn't apply since it's non-testimonial, i.e., it was drafted with an investigation in mind.
5.25.2005 2:58am
Cal Lanier (mail) (www):
Not a lawyer, but authentication would be pretty straightforward. He posted it at home; records generated by the blog software, the operating system, and the ISP (and the phone company, if he's on dialup) would all validate and confirm the transactions of one another, so it'd be hard to argue inaccuracy or error.

On hearsay: if he wrote it in his diary, would it be admissable? That's the most obvious analogy.
5.25.2005 3:34am
Joe in Australia:
I'd go along with the "state of mind" exemption to hearsay. That has been used very broadly; in one case I know of a statement along the lines of "I'm going to catch the bus to the shopping centre" was used to prove that the victim had the state-of-mind-of-bus-catchingness and hence that she *did* catch the bus.

Mind you, a lot of people think that's stretching the loophole further than it can bear.
5.25.2005 8:36am
Spoons (mail):
Present sense impression and possibly the residual exception are the ways to go.

State of mind would be a red-herring, although unfortunately a lot of judges would go for it. That exception is not applicable, however, because the evidence wouldn't be offered to show the victim's state of mind. His state of mind isn't relevant to any element in the case.
5.25.2005 9:05am
RStutes (mail):
I disagree that the authentication would be easy. I'm the defense lawyer, and I hypothesize that mystery killer - after killing the victim, sits down at the victim's computer and drafts the entry to misdirect suspicion.

I am even doubtful on hearsay - present sense impression may be the best shot, but in fact it's an out of court statement offered for the truth of the matter asserted: that the guy is present.

I think that they better have some other physical evidence to tie him to the scene to get a conviction.
5.25.2005 9:24am
John Jenkins (mail):
I don't know the New York legislature has altered the federal rules, but I think this could be a present sense impression. It could also be a case where the defendant procured the witness's absence from trial and so the witness's hearsay statement is admissible (You must show the judge that it's more likely than not that the defendant committed the crime; then it can come in that way).

It's definitely *not* going to get in as a state of mind. I think that RStutes argument is a weight argument. You can make it to the jury, but the statement is probably admissible on the theory that judges will tend to let things in rather than not because they are so rarely reversed for such reasons- If there is enough other evidence, it's just harmless error.
5.25.2005 9:47am
TC (mail):
On the 2 issues:

Authentication: I think that John Jenkins is right, there is sufficient evidence to admit, and the questions raised above go to weight, not admissibility.

Hearsay: It is hearsay (out of court statement offered for its truth), but under the federal rules (I do not know NY rules) it would come in as a present sense impression under 803(1), as it describes an event while declarant (victim) was perceiving it. The commenter above is correct, it is not a dying declaration, as there is no belief of impending death. Spoons above is right on the state of mind exception not being applicable.
5.25.2005 10:56am
Kris:
The question was: Is a computer printout of the blog post admissible at trial? The answer is: Absolutely, and here's how it plays. Prosecution tries to have the officer who first read the post read it to the jury. Defense objects to it as hearsay. Objection overruled. Prosecution is not offering the blog post for "the truth of the matter asserted." Prosecution don't need to, because Killer confessed. But the jury needs to hear it -- why? Because it's how Police got Killer to confess, and therefore, it's the reason we focused exclusively on Killer when looking for further physical evidence post-confession. If you believe the news stories, when confronted with the posting, Killer admitted to being in the apartment, and then to the crimes. This is information acted upon in the course of the investigation. Prosecution doesn't need for the jury to believe the *truth* of the posting; Prosecution merely needs the jury to understand that when confrontied by the posting, Killer admitted the truth of it. So the jury hears the whole posting, and has Killer's statement against his own interest to back up the truth of the posting. Thanks to Prosecution's completely valid argument that the posting is not hearsay -- we're not offering it for the truth of the matter asserted -- the truth of the posting is ultimately bootstrapped into the proceeding by the Killer's own confession. Pretty nifty, huh?

BTW, if you are Defense, you'll have to passionately resort to the ol' "more prejudicial than probative" argument to attempt to defeat this, and in this case, with a confession from Killer, it's doubtful you'll succeed.
5.25.2005 11:21am
Trenchard Gordon (mail):
But RStutes has identified a key problem for both authentication and the hearsay exceptions: How do you overcome the threshhold problem of establishing that the entry was in fact posted by the deceased?
5.25.2005 11:25am
Cal Lanier (mail) (www):
The murderer's fingerprints would be on the keyboard in that case, or wiped clean. If it was a particularly bloody murder, as this one is, there'd be a lot more blood around--plus, the defense would be suggesting a murderer who knew the victims and the suspect, which is pretty unlikely.

From a technical aspect, if the time of death was reasonably well-established, the logs and audit trail would be tough to explain unless (as is the case here) the posting and murder were minutes apart.
5.25.2005 11:42am
Defense Lawyer:
The authenticity hurdle is not that high. Under FRE 901(a), the requirement is statisfied by offering "evidence sufficient to support a finding that the matter in question is what its proponent claims." The judge ruling on the authenticity of the evidence is merely making the call that there is enough evidence to enable a jury to find an exhibit authentic or to decide the weight to be given to the piece of evidence. The defense can certainly argue that there is doubt as to the authenticity, but ultimately, the final decision on authenticity is the jury's.
5.25.2005 11:43am
CharleyCarp (mail):
Hmmm. I'm wondering about 804(b)(6).
5.25.2005 12:04pm
Arthur (mail):
The blog should not be admissible in these circumstances.

There is absolutely no way on earth to tell who typed those words. At most we know who typed in the password to permit blog entries. Even for that we have to assume the victim didn't share his password or have it written on a paper next to the computer (which would be normal for a new password, at a desk in his own home).


The smart defense lawyer will argue: the computer happened to be on and open for blog posting when the real murderer entered the room. Whether before or after the murder, the murderer typed in a few words (or maybe just modified a post already partly typed), to point towards a particular, actually innocent, perpetrator.

Dusting the keyboard for fingerprints might provide useful evidence on this issue, but the criminal could have worn gloves.

Alternatively, the final blog entry could have been typed by the actual victim but dictated by the murderer, while the murderer was holding a knife to the victim's throat. This is the prototypical hearsay problem, and a good reason not to use the residual exception.
5.25.2005 12:06pm
Neo-Libertarian (mail) (www):
Fortunately the guy admitted he was in the apartment when they confronted him with the blog entry, so he already lost his alibi and lied to the police. Whether they lose the blog or not, they can still refer to its role in the investigation without having to read it.

While it might undermine the credibility of the entry to say that some Mr. X murdered the guy after coercing a false blog entry, the same could be said of diary writings, phone communications, personal conversations, etc. What if he had substantively the same conversation with a friend over the phone before being killed? The same argument could be made that Mr. X was standing there making him lie.

My guess as an amateur would be that this sort of thing (whether the blog entry is authentic) is a question for the jury to determine. Considering it forced the suspect to drop his alibi and admit he was there, I'd say it would carry at least some weight.
5.25.2005 1:48pm
Eric Wilner (mail) (www):
Arthur says:

At most we know who typed in the password to permit blog entries. Even for that we have to assume the victim didn't share his password or have it written on a paper next to the computer (which would be normal for a new password, at a desk in his own home).

Odds are, we don't even know that... or, we know who typed in the password last time one was typed, but that doesn't mean any password was typed for this entry. Does everyone here make a point of logging out, and clearing cookies, after every session? I sure don't... so anyone with physical access to my computer could go posting on my blog, or on comment sections for which I've checked that little "Remember info?" box down there.

So, even discounting router-hacking, server-cracking, or just password-guessing, there's no really good way of knowing that a blog entry was really posted by the blog owner -- especially when the killer is known to have had access to the victim's computer at approximately the time of the posting.

The diary analogy is conceptually a good one, except... the diary entry would presumably be in the victim's own handwriting. On a blog, any distinctiveness in typing patterns disappears before the "post" button is clicked... it's all static bit patterns by then. Writing style could be a tip-off to a bad forgery, but it's not a good way of telling a genuine post from a halfway decent forgery.

The well-prepared murderer might carry his own keyboard and mouse for posting the false entry, so as to leave the victim's fingerprints untouched. (I'd recommend a USB keyboard and mouse, which should avoid the need to unplug and replug the victim's equipment.)
5.25.2005 3:23pm
Rob Lyman (mail) (www):
Out. We can't identify the declarant (anyone could have typed it), so we can't tell whose present sense impression we are dealing with.

A substantively identical phone conversation or diary entry could be admitted under present sense impression or (for the diary) recorded recollection, because the handwriting or voice would identify the declarant. The question of possible coercion then goes to weight, not admissiblity.

For authentication purposes, a printout of something stored on a computer hard drive is receivable as an original: FRE 1001(3). That is, if the issue were whether a post had been made, or at what time, or on what blog (rather than the truth of the substance of the post), then the printout is admissible.
5.25.2005 3:25pm
Bob Tolchin (mail):
New York doesn't follow the Federal Rules of Evidence, so all the posts giving an opinion based on the FRE are technically wrong. However, in this case it makes little difference as NY's rules are the same as the FRE. Bottom line: what he wrote on his blog was overall a "present sense impression" (defined in FRE 803(1) as "A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafer.") Parts of the blog entry could also fit within the Rule 803(3) hearsay exception for "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling..." A small part of the blog entry could possibly also be wedged into the Rule 803(2) exception for "[a] statement relating to a startling event or condition made while the delcarant was under the stress of excitement caused by the event or condition."

There are actually two levels of hearsay here: 1) the blog is hearsay because it is an out of court statement of Ng. But within the blog there are the statements of the boyfriend, which are also out of court statments. Assuming that the boyfriend is on trial, those statements would under New York rules be considered within the common law hearsay exception for party admissions. Under the federal rules they are technically not an exception, since the definition of "hearsay" contained in FRE 801(d)(2) defines out of hearsay admissions of party-opponents.

As to authenticity, like all other evidentiary issues, it is up to the judge in the first instance to determine whether the document is admissible. (See, e.g., FRE 104)). In the state court, there are no rules; it is just common law, which means the judge has to be convinced. Basically, the cases parallel the FRE, which is after all essentially a distilation of the common law of evidence into a code.

FRE 901 provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient support a finding that the matter in question is what its proponent claims." Rule 901 gives illustrations of authentication sufficient to comply with this rule as including "[c]omparison by the trier of fact...with specimens which have been authenticated" (910(b)3)); "appearance, contents, substantce, interal patters, or other distictive characteristics, taken together with the circumstances" (901(b)(4)); and for telephone conversations, which arguably are analogous to blog posts, "evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances...show the person answering to be the one called..."

In other words, as far as admissibility is concernced, if the judge can be convinced that under the circumstances it the blog entry is probably authentic, he'll admit it into evidence. In this case, the blog is made in a place where the decedent usually posted; it refers to specific details of his life; it has errors in grammar and word choice that are presumably characteristic of other posts known to have been made by this guy; it was made at a document date and time that can be shown by other evidence to be concomitant with the murder; computer records can probably show that the post came from Ng's computer and required his password; These circumstances will most likely be sufficient to get the blog post past the authentication hurdle.

Of course, just because a document is admitted into evidence doesn't mean that the defendant can't argue, for example, that someone else (the police? the real murderer? OJ Simpson?) could have faked the blog entry. Maybe it was just a creative writing project. But that goes to the "weight or credibility" (FRE 104(e)), not the admissibility. The jury could decide that the blog is unreliable, and disregard it.
5.25.2005 3:46pm
Daniel Martin (mail) (www):
Am I the only one who fully expects this case to be featured in a Law & Order episode some time next season?
5.25.2005 5:57pm
John Jenkins (mail):
Does the New York common law includes cases providing that a defendant gives up his right to confront witnesses if the defendant procures the witness's absence:

"[W]henever the People allege specific facts which demonstrate a "distinct possibility," that a criminal defendant's misconduct has induced a witness' unlawful refusal to testify at trial or has caused the witness' disappearance or demise, the People shall be given the opportunity to prove that misconduct at an evidentiary hearing. . . at said hearing the burden shall be upon the People to prove defendant's misconduct by clear and convincing evidence." Holtzman v. Hellenbrand, 92 A.D.2d 405, 415, 460 N.Y.S.2d 591,597 (N.Y.A.D. 2d Dept. 1983).

So, the standard was wrong above, but the principle is the same. If the prosecution can prove by clear and convincing evidence that the defendant procured the witness's absence (i.e. killed him) then the statement can come in. Considering the confession, I rather doubt the prosecutor will fail to make the requisite showing.
5.25.2005 10:31pm
Jim Morse (mail) (www):
I didn't read all of the responses, so this may be covered elsewhere, but a recent SCOTUS case (Crawford v. Washington, I believe) severely limited the applicability of almost all hearsay exceptions in criminal prosecutions. The court reasoned that the confrontation clause of the U.S. Constitution trumps the common law hearsay rules. The one exception that the Court indicated as possibly still viable is the dying declaration exception (because it was widely accepted at the time of the Bill of Rights) and it doesn't seem to apply here.

Having said that, it's also likely that Crawford doesn't apply. Some courts have interpreted Crawford to apply only to "testimonial" hearsay, i.e., statements made in response to law enforcement inquiry. Since this statement is spontaneous and unrelated to law enforcements, those cases would find Crawford inapplicable and we're back to basic hearsay analysis.

In other words, I don't know the answer.
5.26.2005 1:24am