Tom Stilp JD, MBA/MM, LLM, MSC
In the recent criminal case of Michigan vs. Crumbley, an important incriminating document used against the mother of the school shooter was a drawing by her son, with a picture of a gun and the words: “Blood everywhere,” “The thoughts won’t stop Help me” and “The world is dead.” The mother did not create the document. But the document was admitted into evidence against the mother. From an evidentiary standpoint, how?
Documents are hearsay. Hearsay is a statement or writing made by someone other than the witness. Here, the witness is the mother. The statements were written by her son, who did not testify. Hearsay is usually excluded because hearsay is considered untrustworthy and cannot be cross-examined. For example, the person who made the statement (the son) was not available for cross-examination.
But there are exceptions to the rule against hearsay. A common exception is based on business records. Records made in the ordinary course of business through a practice by the business to make and keep such records are deemed trustworthy because businesses could not operate if they kept inaccurate or false records. Clearly, the son’s drawing is not a business record.
Another exception is excited utterance. Consider someone standing on a street corner, and hearing someone else yelling: “That car just went through the red light!” after a car crash. The person who heard the statement about the red light could testify about the excited utterance of the other person. The statement is considered reliable because the emotional stress of the moment overcomes the ability for conscious reflection necessary for deliberate fabrication. Again, the drawing is not an excited utterance because the drawing was made while the son sat in a classroom.
Finally, the drawing itself might be non-hearsay. Non-hearsay exists when a document is not offered for its truth, but for some other purpose. Here, at the time the drawing was created, the statements referred to non-existing events, such as “The world is dead.” Although not addressing the evidence of the drawing against the mother, the Michigan Appellate Court in its lengthy opinion about probable cause, does provide a clue as to the other purpose for the document – to provide notice to the mother of her son’s mental state. The Appellate Court notes that despite knowledge of the drawing, and the option to take her son out of school, the mother did nothing. Thus, the document is not being offered for the truth of the statements, but for a different purpose, here, notice.
In each and every trial, some documents go through a complex evidentiary analysis as to whether the document may be admitted into evidence, used only in a limited fashion (for one purpose but not another), or barred entirely. With over 150 trials, as experienced counsel, we will know the best arguments for success at trial.
People of State of Michigan vs. Jennifer Crumbley, Docket No. 2022-279990-FH, retrieved at https://www.courts.michigan.gov/495705/siteassets/case-documents/uploads/opinions/final/coa/20230323_c362210_69_362210.opn.pdf.
