Wednesday, January 16, 2013
No Stop Signs, Speed Limit: "Mechanical Trace" Theory & Whether Speed Limit Signs Constitute Hearsay
Yesterday, I got an interesting e-mail from a student asking me whether a speed limit sign constitutes hearsay. Federal Rule of Evidence 801(c) states that
"Hearsay" means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
In turn, Federal Rule of Evidence 801(a) indicates that
"Statement" means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
So, is a speed limit sign hearsay? As I said, it is an interesting question.Let's start with the opinion of the Supreme Court of Nevada in Stephans v. State, 262 P.3d 727 (Nev. 2011). In Stephens, the court noted that
Courts elsewhere have divided on whether price tags amount to hearsay when offered to prove value. Some courts have accepted price tag evidence as a matter of "fact," like an item's color or shape, or as circumstantial evidence, not a direct assertion, of value....[FN3]
FN3. These cases have echoes of Wigmore's "mechanical trace" evidence discussed in United States v. Snow, 517 F.2d 441 (9th Cir.1975), that the "name on a dog collar to prove ownership of [the] dog" or the numbers on a license plate make no assertion of fact, and so are not hearsay at all but circumstantial, identifying evidence. Id. at 443–44 (citing 1 Wigmore on Evidence §§ 148–157 (3d ed. 1940)). Snow and its progeny are criticized in 30B Michael H. Graham, Federal Practice & Procedure: Evidence § 7006, at 94–99 (4th ed. 2006).
In turn, in Snow, the Ninth Circuit dealt with the admissibility of a name tape and found that
the hearsay rule "signifies a rule rejecting assertions, offered testimonially, which have not been in some way subjected to the test of cross-examination." 5 Wigmore s 1362 (Chadbourn rev. 1974). To exclude the name tape as hearsay, therefore, it would be necessary to find that the tape is a testimonial assertion of the proscribed sort which is not admissible under any exception to the hearsay rule.
It is clear that under Wigmore's classification scheme the name tape constitutes an evidentiary fact, other than an assertion "from which the truth of the matter asserted is desired to be inferred," 1 Wigmore, s 25 (3rd ed. 1940), which he describes as a "mechanical trace" designed to show that at some previous time a certain act was or was not done. 1 Wigmore s 148 (3rd ed. 1940). A "mechanical trace," thus, is a type of circumstantial evidence. Examples offered by Wigmore of "mechanical traces" are, inter alia, the presence upon the person or premises of articles, fragments, stains, tools, brands on animals and timber, tags, signs, license plates, fingerprints, foot marks, and documents. 1 Wigmore ss 148-157 (3rd ed. 1940).
The firmness with which we are able to assert that under Wigmore's analysis the name tape before us is circumstantial evidence is strengthened when the cases are reviewed which he collected to illustrate that tags, signs, etc. are "mechanical traces." These cases include instances in which the uniform of the driver of a vehicle was admissible to prove the identity of his employer, or the name on a wagon or truck to prove ownership of the vehicle, the name on a dog collar to prove ownership of dog, the wearing of a uniform to prove employment by the persons whose name appears on the uniform, and lettering on a locomotive to prove its ownership. (emphases added).
Under this "mechanical trace" theory, then, the speed limit sign would not constitute hearsay. But does this "mechanical trace" theory hold water? Some courts conclude that the answer is "no." While the court in Stephans cited to some courts adopting it, it also noted that
Other courts hold that testimony about the price stated on a price tag, when offered as evidence of value, is hearsay. See People v. Codding, 191 Colo. 168, 551 P.2d 192, 193 (1976) (concluding that price tags constitute a written record prepared by someone other than the witness and were offered to prove the truth of the matter asserted—the retail cost of the merchandise), superseded by Colo.Rev.Stat. § 18–4–414 (1985) (creating a hearsay exception for price tags); State v. McPhie, 104 Idaho 652, 662 P.2d 233, 236 (1983) (price tags are hearsay when testimony regarding value is based on them); People v. Mikolajewski, 272 Ill.App.3d 311, 208 Ill.Dec. 443, 649 N.E.2d 499, 504 (1995) (price tags are hearsay when offered to prove the price stated on them); Robinson v. Com., 258 Va. 3, 516 S.E.2d 475, 478 (1999) (price tags are hearsay).
The court then noted, however, that these courts routinely find price tags admissible under the business records exception to the rule against hearsay, and it is easy to see courts finding speed limit signs admissible under the public records exception to the rule against hearsay even if they constitute hearsay. The Stephans court also cited to an opinion in which another court concluded that courts "can properly take judicial notice of the fact that price tags on retail clothing generally reflect the market value of the clothing...."
And indeed, there have been plenty of opinions in which courts have taken judicial notice of speed limits, which adds another wrinkle to the speed limit sign analysis. For instance, in State v. Smith, 2006 WL 2663936 (Ohio App. 12 Dist. 2006), the court found "that the speed limit on streets and roadways in the state of Ohio is set by statute, and not by speed limit signage."
And then there's G. Michael Fenner's article, Law Professor Reveals Shocking Truth About Hearsay, 62 UMKC L. Rev. 1 (1993), in which he notes that
There must be a statement by a person. Hearsay does not apply to a clock telling time, a bloodhound barking up a tree at a suspect, a radar device depicting speed, or a declaration by a stop sign telling a driver to "STOP"!
This is the same conclusion that I would expect a court to apply to a speed limit sign. But does this analysis make sense? Professor Fenner is not so sure. In the article, he later notes:
Above, in my discussion of the definition of hearsay, I wrote this: “Hearsay does not apply to a clock telling time, a bloodhound barking up a tree at a suspect, a radar device depicting speed, or a declaration by a stop sign, telling a driver to 'STOP'!" I gave this reason: It cannot be hearsay unless there is a statement by a person. That is not a good enough reason. It is the reason routinely given, but it is not good enough.
Why not? Take the clock, please. Someone--an out-of-court declarant--did set the clock; and in the process of doing so made an assertion regarding the time; and that assertion, affected by the intervening mechanical operation of the clock, may be offered to prove the truth of the assertion. The assertion by the person setting the clock may be: "This is the correct time." Or, the assertion by one about to be late for work and changing his or her watch to show an incorrect time may be this lie to his or her employer: "This is what time I thought it was." But we let it go. Why do we do this?