Someone I know suggested to me a defense that I could use when I go to court next week over charges for breaking a protection order. He said, deny everything, say that you didn't do it, claiming someone else had your phone. He told me that because any texts are heresay, that the texts as evidence, cannot hold up in court along with the fact that they will not want to take a case like this to trial because it costs too much money.
Unfortunately, the text message evidence is likely to be admitted at trial.
Here, the applicable rules of are evidence are Evidence Rules 801-804. Hearsay is defined as an out-of-court statement made to prove the truth of the matter asserted. Under that definition, your friend is correct in saying that text messages are hearsay. He's also correct that hearsay is generally inadmissible.
Nevertheless, there are numerous exceptions to this general rule. For example Evidence Rule 803(6) establishes the Business Records exception to the hearsay rule. Business records, for the purposes of the exception, are any writings or records of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge are admissible if kept in the regular course of business and if it was the regular course of business to make that record, unless the source of information or circumstances of preparation indicate a lack of trustworthiness.
Here, the Prosecutor would serve a subpoena duces tecum on the phone company managing the text message records in question. A subpoena duces tecum is a court summons ordering the recipient to appear before the court and/or produce documents or other tangible evidence for use at a hearing or trial. Although text messages themselves are not business records, the particular document(s) sought by the Prosecutor are, in fact, the phone company's business records. The Prosecutor would lay the foundation as such. I've linked the Washington rules of Evidence to this answer.
The defense you're considering needs an alibi willing to testify that they sent the text message from your phone. This is not the strongest defense. Please consider hiring an attorney to help reduce or dismiss the charges.
That is an excellent defense if you want to go to jail after being quickly found guilty.
"they will not want to take a case like this to trial because it costs too much money." Once you are charged, the state has plenty of time and money to continue the prosecution. Moreover, the state's employees are already paid. Whether they work on your case or some other case, they would still be working.
The government has sent plenty of other defendants to jail for violating protection orders and similar orders.
What you should do is hire a criminal law attorney if you are not indigent or apply for a public defender if you are indigent.
Is that friend someone who is a lawyer who has carefully reviewed your case, who knows the rules of evidence and who hasn't been to jail?
Having done criminal defense work close to 15 years, it is really frustrating when my clients get crappy advice from friends who have no idea what they are talking about.
A) money is not an object to prosecuting No Contact Orders. I've never once seen a case dismissed because it cost too much. Governments are famous for wasting money.
B) Sure, an attorney could present a defense that maybe some other random person too your phone and texted/called your ex without your knowledge--but not sure that's going to pass the laugh test in front of a jury.
Talk to your attorney, not your friends about these questions. You could be costing yourself more time in jail/more serious charges after a trial. Sometimes that is worth the risk. Sometimes it isn't. That's a decision you should make after a talk with your attorney, not your friends.
Someone that you know is giving you legal advice. Really? How long has he been out of law school? Does he give medical advice as well? Does he also give advice on financial planning? I suspect that he or she has the same level of expertise in each of these areas. You need to get legal advice from a real attorney.
Thankfully, you do not have to rely on your friend to represent you in court. I've never seen a prosecutor not pursue a case because of the cost. Out-of-court statements made by the defendant are hearsay, but they are admissible hearsay in most cases. It may be possible to exclude the text messages from trial, but not on hearsay grounds. This is exactly why you need an attorney to help you with this. You may be able to offer a defense for the case, but you need a professional to help you with this.
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