No Explanation Required?: A Reply to Jeffrey Bellin's eHearsay

Abstract

You see why I tell you I ain’t want to be no damn juror. Some dude just come by my house and tell me he going pay me money to say not guilty. Now I don’t know what to do, because if I tell the judge they’re going to know it’s me.

I know, right. Now I scared because I don’t want them to do anything to me or [my daughter][. . .] * * *

The above were text messages sent by a juror to her sister after Ikim Blackett allegedly threatened and then tried to bribe her in an attempt to convince her to find one of several defendants “not guilty” of various drug crimes. At Blackett’s ensuing trial for jury bribery, the juror testified that, while she was on her front porch, Blackett approached her and mentioned the word “nitroglycerin.” The juror then “asked Blackett what ‘nitroglycerin’ meant and he responded ‘not guilty.’” When this threat fell on deaf ears, Blackett offered the juror $1,500 in exchange for her vote. After again declining, the juror went to her bedroom and sent the above text messages.

Should the text messages have been admissible because the juror took the witness stand and testified at trial? If the juror were “unavailable” at trial, should the text messages have been admissible? According to Professor Jeffrey Bellin’s article, eHearsay, the answer to both questions is “yes” as he crafts hearsay rules that cover both situations. This paper agrees with Professor Bellin on the first question but disagrees with him on the second.

Keywords: Hearsay, Electronic Evidence

JEL Classification: K10, K19