7th Circuit: Probationary phone records are admissible evidence

The 7th Circuit Court of Appeals has ruled evidence of a deceased man’s phone numbers provided to his probation officer is not inadmissible hearsay and those records should be included in another man’s criminal case.

Marcus Hayden engaged in an armed battle with police in 2012, injured an officer and was later shot and killed. The government recovered the handgun Hayden used and charged Maurice Moore with selling the weapon to Hayden. Prosecutors moved to present evidence Hayden, who was on probation, gave to his probation officer regarding his cell phone number. Hayden first gave one number, then another to his probation officer. Moore’s phone communicated with the first number given to the officer several times, but then stopped and started communicating with the second number for equally as long.

Moore moved to exclude the probation report on hearsay grounds, and the District Court excluded them. The government filed an interlocutory appeal.

The 7th Circuit, in a decision written by Rebecca Pallmeyer, a District judge from the Northern District of Illinois sitting by designation, ruled the phone evidence was admissible under the residual exception in Federal Rules of Evidence Rule 807.

Pallmeyer wrote that Hayden is not able to testify, not because of any impropriety of the government, but because of his death and he never recanted the sworn statement that his phone number was the first one.

“But the most important factor here is Hayden's motivation — or lack thereof — to lie about his phone number. The district court concluded that Hayden's criminal history casts doubt on his motivation to tell the truth,” Pallmeyer wrote. “Hayden's apparent willingness to break the law does not explain why he would lie in this instance, however.”

Pallmeyer wrote Hayden had no reason to lie about his second number so the evidence should be sound that these were his numbers.

“The purpose of Rule 807 is to make sure that reliable, material hearsay evidence is admitted, regardless of whether it fits neatly into one of the exceptions enumerated in the Rules of Evidence. That purpose is served by admitting the Reports, and the district court erred in excluding them from Moore's trial,” Pallmeyer wrote.

The case is United States v. Maurice Dimitrie Moore, 15-1785.

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