Hearsay Rule Defined

Under Arizona Rules of Evidence 801 and 802, hearsay is inadmissible unless an exception applies.  Rule 801(c) defines hearsay as

a statement that:

(1) the declarant does not make while testifying at the current trial or hearing and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

(Emphasis added.)

Although relatively clear, to further define the rule, a “statement” is a “person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” Ariz. R. Evid. 801(a).  A “declarant” is “the person who made the statement.” Ariz. R. Evid. 801(b).

Whether a statement is offered “to prove the truth of the matter asserted” is often misunderstood and has created much confusion.  In the context of probate and trust disputes, third-parties often are called testify about what the deceased will maker or trust maker told them.  Such testimony is often relevant to resolve ambiguities in the will or trust, or to determine whether the maker had mental capacity to adopt the will, trust, amendment or other governing instrument.

So, let’s say a friend is called to testify about what her deceased friend told her before he died: “You know, I’m really upset.  My son Johnny only calls me when he needs money.  He doesn’t really care about me.  So, after much thought, I’m going to disinherit him and leave my fortune to charity.”  If that testimony were offered to prove whether Johnny truly didn’t call his father unless he needed money and didn’t care about his father, then the statements would be for the truth of the matters asserted and would be inadmissible.   However, if there is a dispute about the validity of the document disinheriting Johnny, the statements would likely be relevant and admissible to prove dad’s state of mind or intent.  This may be a slight oversimplification.  But, we think you get the point.  Whether something is hearsay depends on the purpose for which the evidence  is offered.  Also, other rules, such as the so-called “Dead Man’s Statute” may affect the admissibility of evidence in a probate or trust dispute.

Under Arizona Rules of Evidence 801(a) and (b), the rule against hearsay applies to a “person’s” statements and “the person who made the statement.” However, the Rules do not define “person.”  So, are computer generated communications hearsay under the Rule?  That was the issue addressed in a recent Arizona Court of Appeals case, State v. Stuebe.

Computer Generated Statements and the Hearsay Rules

In Stuebe, the Court had to determine whether a machine that generates information could qualify as a “person” under the Arizona Rules of Evidence.  There, Jerry L. Stuebe was convicted of burglary and possession of burglary tools.

Before dawn one morning in February 2018, law enforcement responded to a 911 call from a security company concerning a silent alarm at a mostly vacant commercial property called Zanjero Falls West. Upon arrival, a law enforcement officer saw two individuals running toward an SUV. The officer stopped the vehicle as someone started to drive it away. Stuebe was a passenger in the SUV. Afterwards, officers retraced the SUV’s path and discovered two large bags containing copper wire. The officers also found a two-way radio, bolt cutters, a hacksaw, a flashlight, and other burglary tools. Triggered by a motion detector, a security camera at the property recorded the burglary.

At the commercial property, there was a motion-activated security camera that automatically recorded a video once a sensor was triggered. The system then produced an email and immediately sent it to the property manager. The email only contained the date, time, client ID, serial numbers, camera location code and language that read “Automated message- please do not reply to this address.”  At trial, the State attempted to introduce into evidence the automated email and video.   Stuebe objected.  The Superior Court overruled the objections and admitted the evidence.  Stuebe appealed.

Since there is no set definition of “person” in the Rules of Evidence, the Court of Appeals interpreted the word according to its common definition. Arizona’s “Dictionary Act” defines “person” as “a corporation, company, partnership, firm, association or society as well as a natural person.”  The definition does not include a computer or other machine.  Thus, the Court held that the email and video were not statements by a “person,” but were “machine produced.”  They were not made by a person and could not be classified as hearsay. Therefore, the evidence was admissible.  Thus, the Court of Appeals affirmed the Superior Court’s decision to admit the evidence.

How Will this Affect Litigation?

While Stuebe was decided in the context of a criminal case, the rules of evidence apply across most areas of the law and may have an effect in litigation involving probate, trusts or estates. Going forward, it will be unlikely machine-produced statements will be deemed inadmissible on a hearsay basis.  Rather, concerns about these statements can be addressed through the process of authentication – whether the email or video were altered or otherwise tampered with.  If you have any questions about this interesting issue, please let us know.

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