The Court of Appeals in Holmon v. D.C., decided on February 28, 2019, determined whether a Civil Protection Order violation resulting in conviction based on hearsay evidence at trial should be reversed.

First to establish the elements of a CPO violation, the government must prove beyond a reasonable doubt that defendant had engaged in:

(1) Willful disobedience

(2) Of a protective court order.

It is not a willful violation if:

  • Petitioner approached the respondent without his encouragement or consent,
  • The contact was necessitated by an emergency, or
  • There also existed some other compelling reason.

Even in the enumerated exceptions listed above, if the contact is not terminated by the defendant, then such may still constitute sufficient bases for violation.

Here, defendant Holman was charged with violating the CPO no contact order by making multiple call to the petitioner’s cell phone as well as showing up at her place of residence.

The issue for the Court was whether the evidence admitted at trial of missed calls to the petitioner’s phone witnessed and testified to by the police officers at the scene constituted admissible hearsay or inadmissible hearsay evidence.

Hearsay generally is a statement, other than one made by the witness testifying at the trial or hearing, and offered to prove the truth of the matter asserted.

Moreover, 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 main justification for excluding hearsay evidence 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 call log screen on a cell phone is interpreted as an out of court declarant technically testifying.

With the technological innovations, the hearsay rules have evolved and thus courts generally conclude that a machine-generated statement may imply hearsay if the statement depend[s] on human inputs that require judgment or permit subjectivity.  That is, if the data or statement is manipulated or processed by another person rather than machine generated – then the hearsay out of court exemption applies and the evidence is excluded.

Here the Court concluded that the cell phone generated images of the missed calls from the number associated with the defendant was sufficiently reliable to be admissible as machine and auto system generated.

That is, the displayed missed calls on the phone screen relayed the implicit assertion that the phone associated with that number originated the calls thus connecting the defendant to the calls directly and by interference violating the CPO no contact order.

The Court of Appeals was also cognizant of the fact that other surrounding evidence at trial also clearly established reckless disregard of the CPO order.

Refer to our Washington DC Civil Protection Order Lawyer page for more information on this topic.

Categories: Criminal Defense.