In Holman v. D.C., the Court of Appeals determined whether missed calls on a cell phone violated a no contact provision of a Civil Protection Order (“CPO).”

The trial court there had ruled that the appellant violated the CPO voluntarily and on purpose, and not by mistake or accident, in two respects:

1. By coming within 100 feet of petitioner and her home, and
2. By contacting the petitioner via telephone marked as missed calls.

Appellant filed a timely appeal challenging only the conviction on the second count, the trial court’s admission of Officer Davis’s evidence of the missed calls over his hearsay objection essentially arguing that the Officer’s testimony was a not admissible as hearsay.

Hearsay is defined as out of court statement, other than one made by the declarant while testifying at the trial or hearing, and offered to prove the truth of the matter asserted.

A statement for hearsay purposes, is

1. An oral or written assertion or
2. Nonverbal conduct of a person, if it is intended by the person as an assertion.

The primary rationale for excluding hearsay is the lack of an opportunity to cross-examine the out-of-court declarant whose statements are admitted for the truth of the matter contained in them.

The Court held that in this case the statement in Officer Davis’s notes did not contain hearsay as the Officer could not recall the number he saw on the petitioner’s missed calls screen from memory, and thus relied on his contemporaneous notes.

Although the content of the notes as to the number he saw on the petitioner’s cellphone were hearsay, such was admitted under the exception for past recollection recorded which provides:

• A recorded recollection (sometimes referred to as a prior recollection recorded), in the law of evidence, is an exception to the hearsay rule which allows witnesses to testify to the accuracy of a recording or documentation of their own out-of-court statement based on their recollection of the circumstances under which the statement was recorded or documented – even though the witness does not remember the events attested to in the statement. It is sufficient that the witness is able to testify to having made the recording, and to having written an accurate statement at that time.

Moreover, the hearsay issue presented in this appeal was not whether the notes themselves were hearsay, but also whether the notes implied a further statement.  That is, whether the numbers originated the calls to petitioner’s cellphone were dependent on human inputs that require judgment or permit subjectivity, or was nothing more than raw data produced by a machine.

The Courts have held that where the original source is an algorithm or machine based, then the data is more reliable and thus admissible. Because the numbers generated on a cell phone are purely machine-generated and have no per se author who could have been cross-examined in court, they were not hearsay and thus admissible for culpability.

To establish the elements of a CPO violation, the government must present evidence proving beyond a reasonable doubt that defendant engaged in:

1. Willful disobedience of,
2. A protective court order and that
3. The consent of the petitioner does not bar a conviction of criminal contempt for the violation of a CPO.

Here the Court of Appeals held that the recorded evidence of the missed call on the petitioner’s phone did constitute a violation of the Civil Protection Order.

Refer to our Washington DC Civil Protection Order lawyer for more details on this subject matter.