Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

A Boston Criminal Lawyer Discusses Potential Evidence In Woburn Murder Case (Part Two)

Yesterday, the Boston Criminal Lawyer Blog began its discussion about the Massachusetts murder case of Lauren Astley (hereinafter, the “Deceased”). The gentleman accused of the crime(s) is 18-year-old Nathaniel Fujita (hereinafter, the “Defendant”)

We looked at the Woburn bail hearing which took place, including the prosecutor’s representations as to what she believed the evidence in the case would show. She read some text messages allegedly between the Decased and the Defendant. She interspersed them with what as going on behind the scenes, such as the Deceased’s arrival at the Defendant’s home, the Deceased’s desire to save their friendship (in light of their recent romantic breakup) and the like.

I mentioned that it was possible that all this material might actually not make it into the mix of evidence which might find itself before the jury during a trial.

Today, let’s discuss why.

Attorney Sam’s Take On Text Messages, Hearsay And Admissible Evidence
As we have discussed in the past, not all items that the world considers “facts” are admissible as evidence in a trial. Every jurisdiction has its own Rules of Evidence which controls what may and may not come into evidence…and when.

As any experienced trial attorney can tell you, the rules can be a bit confusing…unless one is used to dealing with them.

Hence the need for an experienced criminal defense attorney when you are facing criminal charges.

For example, let’s look at the text messages themselves. First of all, if it wants to put the messages into evidence, the Commonwealth will have to authenticate who sent them. This may not be as simple as you might think.

“Well, Sam, it should be easy enough to show that they were sent from the cell phones belonging to the Deceased and the Defendant, right?”

Maybe. But, then again, for there to be any impact, one will have to show who had the two cell phones when the messages were sent and received. Of course, that may be simple enough. Even better for the prosecution, it might be possible to show exactly where the cell phones were (geographical location) when the messages were sent due to recent technological developments.

The next issue is the Omni-confusing issue of hearsay.

Under the law, “hearsay evidence” is an out of court statement that is being offered into evidence to prove the matter asserted in said statement.

Such statement may be made orally or in writing. For example, let’s say that I am on trial for not posting my blog each and every week day. All of a sudden, the prosecutor holds up a piece of paper that she claims is a letter from Altman & Altman’s fearless leader, Steven Altman, berating me for not posting five blogs a week.

The prosecutor is likely to be frustrated because the letter is likely not to get before the jury. That is, assuming the prosecutor is submitting it to show that it tends to show I was not blogging as expected. It is hearsay. There is no reason to believe that the matter asserted in the letter is true.

“Ah, but I have been learning from your blog, Sam! It might be admissible if it was being offered to the court to show something different, right?”

That is correct.

“Well, what if it is being offered simply to prove the fact that Steve Altman was upset that the blogs were not going up?”

Very good. That would do it…providing that Steve’s state of mind at the time was relevant. But it is not relevant when trying to prove whether or not I was blogging.

In the Woburn case, the Commonwealth would argue that they are not submitting the texts to show the truth of what is said in the messages. For example, the Commonwealth would argue that they are not trying to prove that the Deceased was “Here”. The defense, of course, would argue that that is precisely what they are trying to prove…particularly when they are also (assumedly) presenting evidence pinpointing where here cell phone was at the time the message was sent.

Now, of course, there is more to this case already than simply these text messages. However, it goes to show why, if we truly respect the Rules of Evidence and how the system is supposed to work why there is great risk when it comes to pretrial publicity.

Let’s assume for the moment that the text messages do not come into evidence. However, a potential juror remembers both the newscasts as well as this blog. That potential juror knows about the text messages. If he/she does not say anything, that would taint the jury.

“Isn’t that actually a good thing, Sam? I mean, these rules seem designed to hide evidence and prevent justice being done, don’t they?”

Do they? Stay tuned to my next blog.

To view the article upon which this blog is based, please go to http://www.boston.com/news/local/massachusetts/articles/2011/08/24/texts_to_ex_beau_preceded_wayland_slaying/?page=full

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