Black’s Law Dictionary defines hearsay as a declaration made out of court presented in court for its truth. Therefore, in a technical sense, Burrows is correct. The phone’s identification of Dana Goodwin as the sender of a text is hearsay, because it was not made under oath in open court and is being presented as evidence that Dana was the author and sender. But there are at least forty exceptions to the hearsay rule, ranging from excited utterances to business records to verbal acts. The king of these exceptions is that anything the defendant says off the stand is always admissible. That’s how the prosecution can admit into evidence confessions made to police officers or wiretap recordings.

“Ah, were it that simple, Mr. Burrows,” Judge Gold says, this time slightly more audibly. “I’m going to steal some of Ms. Broden’s thunder here and jump in to make her case for her, because it seems to this old jurist that the text is a party admission, no different than if your client uttered the words she typed into her phone.”

“That would be true if Ms. Goodwin typed those words into her phone,” Burrows counters. “But she did not. And there’s been no offer of proof that she did.”

I enter the fray. “The offer of proof, Your Honor, is the text itself. It’s self-authenticating. It literally says that the speaker is Ms. Goodwin. There is no doubt that if Ms. Goodwin shouted her message from her window into Ms. Wright’s window, those statements would be admissible as a party admission. The fact that the statement here occurred electronically doesn’t change the law.”

“She’s right, isn’t she, Mr. Burrows?” says Judge Gold.

“She would be,” Burrows concedes, “but—”

“Ah, the distinguishing but.” Judge Gold laughs.

“The critical but,” Burrows says with a laugh of his own before he quickly resumes a more serious expression. “In Ms. Broden’s example, in order for the statement to be admitted over a hearsay objection, the prosecution would have to put on some proof that it was Ms. Goodwin shouting out the window. For example, someone would have to identify Ms. Goodwin’s voice, or testify to seeing Ms. Goodwin leaning out the window at the time the words were uttered. Here that corroborating evidence is lacking. We have no idea who actually sent the text. All the witness knows is that it came from a phone owned by Ms. Goodwin.”

“Forgive me, counselor, but isn’t that exactly the corroborating evidence needed for admission?” Judge Gold asks. “You can argue a different person actually sent it if you want, and maybe the jury will believe you, but that seems a question for them regarding how much credence to put on that particular piece of evidence, not one for me on admissibility.”