The admissibility of text messages from the defendant to the victim was a key issue in State v. Espiritu, 2008 Haw. LEXIS 15 (Haw. Sup. Ct. Jan. 28, 2008), an appeal from a conviction for attempted murder and other offenses. The defendant conceded that the text messages “would arguably be admissible as an exception to the hearsay rule as an admission by a party-opponent” but argued that “Complainant's testimony was inadmissible hearsay because the Complainant read aloud from an inadmissible police report about the messages.” Reliance on such documents is a recurring issue because text messages on cell phones are transitory (see the discussion of United States v. Culberson, 2007 U.S. Dist. LEXIS 31044 (E.D. Mich. April 27, 2007) and 2007 U.S. Dist. LEXIS 35276 (E.D. Mich. May 15, 2007) in our posts of May 3 and May 21, 2007). (Consider photographing or downloading them.) Ultimately, the key issue for the Hawaii Supreme Court was whether the testimony amounted to past recollection recorded (admissible) versus reading a police report (inadmissible). The analytical framework:

Momentarily setting aside the issue of whether the Complainant testified from her memory or from a verbatim reading of the police report, in general, testimony about the text messages is hearsay. If evidence is hearsay, then testimony about the evidence is also hearsay.... Correspondingly, if evidence is hearsay admissible under an exception to the rule against hearsay, then testimony about such evidence is admissible.

There was a best evidence issue because the summary of the text in the police report was not a copy within the meaning Rule 1002, and the original was lost when the complainant discontinued the cell service.

Petitioner argues that Respondent "should not be excused from producing the original or a duplicate of the text messages, which are otherwise inadmissible under the best evidence rule," because Respondent "has not shown that it would have been impossible or even difficult to download, photograph, or print out the data from [the Complainant's] cell phone." In support of this argument, Petitioner cites United States v. Bennett, 363 F.3d 947, 953-54 (9th Cir. 2004), wherein the Court of Appeals for the Ninth Circuit held that in accordance with the best evidence rule, the court could not admit secondary evidence pertaining to a global positioning system (GPS) reading as the government failed to show that it would have been difficult or impossible to download or print out the GPS data.

The Hawaii Supreme Court distinguished Bennett (on the ground that there was no evidence that the GPS data had been lost or destroyed) and ultimately rejected the precedent as non-controlling. The Court admitted the testimony on the ground that the admissibility of the report was essentially beside the point as it was merely the medium for refreshing the recollection of the witness. The Culberson cases cited above add valuable authentication analysis when you have what purports to be a verbatim transcript of an extinct text.