A Memo on Hearsay

MEMORANDUM

ISSUES
I. Whether the e-mails written by Summer and Ryan are admissible, and if so, for what purpose(s)?
II. Whether the dating privilege applies to Summer.
III. Whether the seizure of the packet of white powder was proper.
SHORT ANSWERS
I. The e-mails written by Summer and Ryan are admissible because they express the feelings and mental states of both Summer and Ryan, and those feelings are material to this case. In addition, the e-mails can be authenticated and are therefore admissible as evidence.
II. The dating privilege does not apply to Summer because under both the "factor approach" and the "definitional approach" Summer and Ryan do not have a "dating relationship."
III. The seizure of the white packet was proper because the "plain view" doctrine applies in this case. The police officer acted reasonably when he pulled Ryan over for a broken tail light, and since he inadvertently came across the packet of white powder, the seizure was proper.
DISCUSSION
I. THE E-MAILS ARE ADMISSABLE IN ORDER TO HELP ESTABLISH WHETHER SUMMER AND RYAN WERE DATING. The Federal Rules of Evidence provides: "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). Although hearsay is inadmissible at trial, an exception to the hearsay rule applies when the declaration is material to the issues under trial and is that of "intention, feelings, or other mental state of a certain person at a particular time, including bodily feelings. . . ." Adkins v. Brett, 184 Cal. 252, 255 (1920). In Adkins, the court held that prior statements made by a wife to her husband, although hearsay, were admissible because the statements expressed the wife's feelings towards her husband, and those feelings were material to the case. Id.
Furthermore, the government cannot offer e-mail into evidence without proper authentication; proper authentication is a condition precedent to a document's admissibility as evidence. U.S. v. Siddiqui, 235 F.3d 1318, 1321 (11th Cir. 2000). "A document may be authenticated by ‘[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.'" Id. (quoting Fed. R. Evid. 901(b)(4)). In Siddiqui, the court held that e-mails between two parties were authenticated by the e-mail address and the signature included in the e-mails. 235 F.3d at 1321.
In the present case, whether Ryan and Summer are dating is material to the trial because Summer wants to invoke the dating privilege (see infra). Although the e-mails between Ryan and Summer are hearsay, they are admissible because they can help determine if Ryan and Summer have a "dating relationship." These e-mails fall under the hearsay exception because they include information about the mental state and feelings of Ryan and Summer. For instance, in one of the e-mails, Summer tells Ryan that she looks forward to their exchanges and that they have become special in their own way. In another e-mail, Ryan tells Summer that he feels a strong connection to her and that he's never felt like that with anyone before.
In addition, the e-mails are admissible because they can be authenticated. The e-mail address Ryan uses to contact Summer is the same address which Summer uses to write her friend, Jen. Furthermore, both Summer and Ryan's e-mail addresses are at the "dating.com" domain name, which supports the fact that they are authentic. In addition, the contexts of the e-mails indicate that the authors would be people who were familiar with the details of Summer and Ryan's encounters. II. THE DATING PRIVILEGE DOES NOT APPLY TO SUMMER. The Federal Rules of Evidence provide: "An accused in a criminal proceeding has a privilege to prevent the person he is dating from testifying against him." Fed. R. Evid. 505(a). This privilege may be asserted "by the accused or by the person he is dating on his behalf." Fed. R. Evid. 505(b). Although there is no case on point defining the term "dating" in the context of the dating privilege, courts across the country have attempted to define the words "dating relationship" in the context of state domestic violence acts. Andrews v. Rutherford, 363 N.J. Super. 252, 258 (2003).
In Washington, a "dating relationship" refers to serious courtship. It is a social relationship between two individuals who have or have had a reciprocally amorous and increasingly exclusive interest in one another, and shared expectation of the growth of that mutual interest, that has endured for such a length of time and stimulated such frequent interactions that the relationship cannot be deemed to have been casual.

Oriola v. Thaler, 2005 Wash. App. LEXIS 821, 828 (2005). In North Carolina, a dating relationship is defined as one "wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship." Andrews, 363 N.J. Super. at 258 (quoting N.C. Gen. Stat. § 50B-1 (2003)). However, the Superior Court of New Jersey has held that determining if a relationship is in fact a dating relationship is fact sensitive and "warrants a ‘factor approach' rather than a ‘definitional approach', similar to the approach used in Vermont, and Massachusetts." Andrews, 363 N.J. Super. at 258. The Andrews court found that six factors should be considered in determining whether a dating relationship actually exists. Id. These factors include: interpersonal bonding between the parties, length of dating activities, nature of interactions, each party's expectations with respect to the relationship, affirmation of the relationship, and other reasons unique to the case that support or undermine a finding that a "dating relationship" exists. Id. at 259. In the case at bar, using both the "definitional approach" and the "factor approach" by analogy, there is no dating relationship between Summer and Ryan. Under the "definitional approach," a dating relationship needs to be reciprocally amorous and requires exclusive interest in one another. In the present case, the exclusive interest is evident only on Ryan's part. Summer and Ryan met on Dating.com, which indicates that their relationship was intended to be romantic and not casual. Ryan and Summer have been conversing online and on the telephone for three months. Although the e-mails and phone calls between them may seem romantic in nature, Ryan is the one mostly expressing affection. For instance, in one of the e-mails, Ryan tells Summer that she is "so beautiful" and that he printed out a picture of her and placed in a picture frame on his desk. In another e-mail, Ryan mentions that he loves Summer and that he already bought her a present. However, in the e-mail to her friend, Summer mentions that she is going out with a someone named Bobby, and she sounds excited about it. Furthermore, Ryan gave Summer a bracelet engraved with the words "I Love You. Ryan." Although Summer accepted the gift, she did not notice the message. Therefore, her accepting the bracelet is not necessarily an indication that she feels the same way about Ryan. Similarly, at the party Summer suddenly grabbed Ryan and kissed him. Yet, this is also not a definite indication of her feelings because she had a couple of drinks and was feeling tipsy. Likewise, under the "factor approach" there is no dating relationship evident. Even though the e-mails and phone calls between Ryan and Summer may indicate interpersonal bonding between the two, the objective reasonable person would not define an e-mail and telephone relationship as dating, but rather as the "pre-dating" stage. Ryan and Summer did not see each other regularly and the party they went to was the first time they went out together. While at the party, neither Ryan nor Summer affirmed their dating relationship when others asked them if they were dating. In addition, although Summer was going to spend the night at Ryan's home, she was going to sleep in the spare bedroom. Therefore, under the "factor approach" Ryan and Summer were not dating.
III. THE SEIZURE OF THE WHITE PACKET WAS PROPER. The Fourth Amendment provides in pertinent part that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." Soldal v. Cook Co., 506 U.S. 58, 61 (1992) (quoting Ker v. Cal., 374 U.S. 23, 30 (1963)). This includes the "[t]emporary detention of individuals during the stop of an automobile by the police, even if for a brief period and for a limited purpose. . . ." Whren v. U.S., 517 U.S. 806, 808 (1996). Therefore, an automobile stop by a police officer needs to be "reasonable" under the circumstances. Id. at 809. As a general rule, when the police have probable cause to believe that a traffic violation has occurred, the decision to stop an automobile is reasonable. Id. Furthermore, the subjective intent of an officer who stops a vehicle is not important and "does not invalidate the action taken as long as the circumstances, viewed objectively" are justified. Id. at 810. In other words, "[s]ubjective intentions play no role in ordinary, probable cause Fourth Amendment analysis." Id. Moreover, when a search is conducted without the prior approval of a judge or magistrate (i.e., without obtaining a warrant), that search is considered unreasonable under the Fourth Amendment and therefore improper. Coolidge v. N.H., 403 U.S. 445, 449 (1971). Nevertheless, "[i]t is well established that under certain circumstances the police may seize evidence in plain view without a warrant." Id. at 451. This "plain view" doctrine applies to situations where a police officer who is "not searching for evidence against the accused, nonetheless inadvertently comes across an incriminating object." Id. at 452. However, the police officer needs to have had "a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused." Id. Prior justification includes "hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with the search" which permits a warrantless seizure. Id. Furthermore, there are two limitations on the "plain view" doctrine. Id. at 454. The first limitation is that "plain view alone is never enough to justify the warrantless seizure of evidence. Id. (emphasis in original). The second limitation "is that the discovery of evidence in plain view must be inadvertent." Id. at 455. In this case, the police officer pulled Ryan over because of a tail light that was out. Since driving with a broken tail light is a traffic violation, the police officer acted reasonably when pulling Ryan over. Furthermore, it does not matter if the police officer did in fact dislike "rich kids." The officer's subjective reason for pulling Ryan over is not relevant to the analysis, since from an objective standard, the officer was justified in his actions. Given that the officer was justified in pulling Ryan over and the officer inadvertently came across the small packet of white powder on the driver's seat, the "plain view" doctrine applies in this case and the seizure of the white packet was proper.
CONCLUSION
First, the e-mails written by Summer and Ryan are admissible because they express feelings which are material to the case, and the e-mails can be authenticated. Second, the dating privilege does not apply to Summer because she is not in a "dating relationship" with Ryan. Under the "definitional approach" Summer and Ryan do not have a "dating relationship" because their relationship is not reciprocally amorous or exclusive. They also do not have a "dating relationship" under the "factor approach" because they did not see each other regularly, they had gone out together only once, and neither of them affirmed their relationship. Finally, the seizure of the white packet was proper because the police officer was justified in pulling Ryan over for the broken tail light, and since the officer inadvertently came across the illegal narcotic, the "plain view" doctrine applies.