IS IT HEARSAY?

From vacle.org :

Did You Know? Is it hearsay? Test your knowledge.

Test your hearsay knowledge with the following two examples, involving price tags and bar codes. Should the trial court sustain a hearsay objection or overrule it? We’ve included the answers at the end, as well as links to the opinions in the two cases on which the questions are based.

Question 1:

The loss prevention officer at a retail store saw a customer attempting to sneak out of the store with a coat stuffed under his sweater. He called out to the customer, who just stood there, shaking his head. When the case came to General District Court, the loss prevention officer answered the question, “tell the Court the fair market value of this sport coat on the day you stopped the defendant,” by replying, “the price tag says $201.00.”

Based on: Robinson v. Commonwealth, 258 Va. 3, 516 S.E.2d 475 (1999).

Question 2:

On further reflection, the witness remembered that the coat didn’t have a price tag fixed to it, only a bar code. He’d scanned the bar code and printed a receipt, which showed a $201.00 price.

Based on: Twine v. Commonwealth, 48 Va. App. 224, 629 S.E.2d 714 (2006).

In both cases the hearsay objection would be overruled.

Question 1 is based on Robinson, which recognized a hearsay exception specifically for store price tags in shoplifting cases “permitting the admission into evidence of price tags regularly affixed to items of personalty offered for sale or, in substitution, testimony concerning the amounts shown on such tags when … there is no objection to such testimony on best evidence grounds.” The Virginia Supreme Court reasoned that, “Shoplifting is something that occurs thousands and thousands of times throughout this country every day. It is common knowledge that department and other stores regularly affix price tags to items of merchandise and that the tagged price is what a purchaser must pay to acquire an item, without the opportunity to negotiate a reduced price or to question how the tagged price was reached. Under these circumstances, ‘the inherent unreliability of hearsay is not present.’”

Question 2 is based on Twine, which held that the price tag exception recognized in Robinson extends to a cash register receipt generated by scanning the bar codes on the stolen items of merchandise or, in substitution, testimony concerning the amounts shown on such a receipt when there is no objection to such testimony on best evidence grounds. The Twine court observed that while the stolen items differed from the merchandise shoplifted in Robinson in that they did not have price tags affixed to them by the retailer, they did have individual bar codes on them that, when scanned, revealed their purchase prices. Further, the scan of the shoplifted items produced a receipt that summarized the prices charged by the store for the stolen merchandise. Plainly, such a receipt is no less inherently trustworthy and reliable than the testimonial valuation summaries admitted into evidence in Robinson. The court properly overruled Twine’s best evidence objection to the cash register receipt, since the bar codes would have been meaningless to the fact finder at trial, without a printout of the prices generated by scanning the bar codes on the products at a register.

The hearsay questions in this email are derived from the materials for Virginia CLE®’s 38th Annual Criminal Law Seminar.

Visit our “Did You Know?” Archive for previous emails on a variety of Virginia legal topics.

A Guide to Evidence in Virginia, designed for both criminal and civil litigators, covers the price tag exception to the hearsay rule and cites both the Robinson and Twine decisions. Its convenient size makes it ideal to take to court. If you order the 2011 edition now, you will receive the 2012 edition, which will be published in the next few weeks, at no additional charge.

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