I think introducing only the word “rapeist” at trial ought to be considered a violation of Wigmore's hearsay rule.
It is certainly an out of court statement. Was it introduced for the truth of the matter asserted? I say yes.
I think that when you constrain the statement coming in (by only introducing the word of concern without the words surrounding it), the "matter asserted” must be correspondingly constrained. Put differently, I think it would be nonsensical to cut out the word’s context and then consider whether the word alone is being introduced for the truth of the matter asserted by the word when read in context.
So, what does the word “rapeist” stripped of its context assert? I think it asserts, albeit implicitly, that the word’s author believed what he has written is the proper spelling of the word “rapist”, as we commonly understand people not to ordinarily spell words wrong on purpose. Unsurprisingly, that’s exactly what the prosecution was introducing the statement to prove, only to later rely on another assumption which posits that we do not practice inconsistent spellings of the same word. As a result, I believe the prosecution was bringing in an out of court statement for the truth of the matter it asserts, in violation of Wigmore’s hearsay rule.
They hearsay question and the confrontation clause question are different, as I think the below succeeds in making obvious.
I don’t think we know enough from the excerpt you’ve provided to determine whether conviction amounted to a violation of the defendant’s right “to be confronted with the witnesses against him[.]” If the Confrontation Clause is a rule of sufficiency, as you (Professor Nesson) argue, then a piece of evidence cannot violate the clause in and of itself. If during the trial the prosecution proved through direct testimony or other non-hearsay evidence that Prather did the carving, then introduction of the context-less words was not a violation of the clause. If, for the sake of argument, we assume no other evidence was introduced to prove the identity of the killer, then yes, the confrontation clause would have been violated.
I think the judicial notice-type assumptions I made above about people trying to spell words correctly and consistently illustrates exactly why this constitutional guarantee is so important in contexts like the instant one. It’s undeniably true that most people most of the time try to spell words as they appear in a dictionary (our recent learnings about the Rastafari customizing language with the importation of extra “I”s notwithstanding). But how do we know the generalization should be relied upon in this case?
How do we know Mr. Phillips did not––in an effort to garner a better plea deal–spell rapist incorrectly in his police report to create an opportunity for others to make exactly the inference the prosecution later asked the jury to make? Furthermore, how do we know for sure the police didn’t add an “e” into a correctly spelled “rapist” after Phillips plead guilty in order to make prosecuting Prather easier? (more sinister actions have been taken by overzealous policemen, as surely we all know). The short answer to my hypothetical question is that we’ll never know, but we’d be a lot surer if Phillips got up on the stand and told us, and we’d be even more sure if his in-court statements withstood vigorous cross examination.
Following is my far less fulsome rebuttal. I disagree that introducing the word rapeist at trial is a violation of Wigmore's hearsay rule, and I'm not certain that the hearsay rule is even called into question. The word "rapeist" isn't a statement being made by some identified 3rd party meant to indict an individual on trial, but rather, the word is being introduced as a piece of tangible evidence. By way of (admittedly extreme) analogy - imagine that Prather was missing his left arm, and Philips was missing his right arm, and that there was a gun found at the scene of a shooting murder that had fingerprints from a right hand. Those fingerprints on the gun would be introduced as evidence to support the inference that it was more likely Prather committed the murder than Philips. Similarly, the word rapeist is being introduced as evidence to support the inference that it is more likely Prather committed the murder than Philips, because Philips has demonstrated an ability to correctly spell rapist.
I also think this does not violate Wigmore's hearsay rule and should come in as physical evidence instead of as a hearsay statement. I do not think it is coming in to prove the truth of the matter asserted, which would be whatever the statement actually said. Instead, it's coming in as (weak) circumstantial evidence that when Mr. Phillips spells rapist he spells it incorrectly. It is up to the jury to determine whether the evidence is reliable or not and how it should be weighed against the other pieces of evidence presented in this case.
Introducing Phillips' misspelling creates an inference of Prather's guilt when taken with the spelling on the victim's back. However, that inference is pretty weak and could mislead a jury without proper context. My understanding of Wigmore's hearsay rule is that it's meant to protect the sufficiency of the evidence used to convict. Is this an accurate reading? If so, this is precisely the sort of thing it's designed for: to prevent the jury from convicting based on insufficient and misleading evidence.
Why is it more likely that the person who knows how to spell rapist is more likely to have committed the murder? It seems just as likely that one person did the murder and another person did the carving of "rapist."
Perhaps the video is anonymous as well. We maintain anonymity to show how it can be positive we can come together to show how discussion can and does flow and how it can help students expose new ideas.