*Andrea Hutton
I. Introduction
Scholars often trace the modern obsession with true crime media to Truman Capote’s 1966 best seller, In Cold Blood.[1] Today, the genre’s popularity is at an all-time high thanks to newer media offering these gory tales. Lovers of these stories have endless options such as the still popular true crime novel, dedicated television channels, as well as streaming and podcast offerings.[2]
After several years of true crime at the peak of popularity, critics are assessing the impact of these stories across platforms, posing the question: “Has this gone from entertainment to obsession?”[3] Many say yes. Scholars and critics point out that women are especially susceptible to allowing true crime to take over their daily lives.[4] For some women true crime evolves from entertainment to a real-life threat that leaves them asking, “[w]hat if it happens to me?”[5]
This question looms large for many women, leading some to compile an “If I Go Missing” folder.[6] The concept is simple: a person documents all the information they believe would aid in a missing persons search in the unlikely circumstance they ever go missing.[7] A popular true crime podcast provides a fifty-three-page template to listeners who sign up for its emails.[8] Similarly, stationery retailers offer aesthetically pleasing binders to compile details like the potential victim’s social media logins, distinctive tattoos, and the names and contact information for individuals the compiler thinks the police should question first. [9]
Since the initial rise of true crime podcasts, several pieces of the media have leapt into the real world and altered the course of the legal proceedings surrounding those stories.[10] So far, these legal effects have primarily dealt with reconsiderations of guilty verdicts.[11] But what might occur in the courtroom when such obsession and documentation sadly prove correct, and a victim’s folder makes its way into a trial as evidence?
II. Admitting Evidence and the Victim’s If I Go Missing Folder
One need not attend law school to realize the importance of evidence in proving or disproving a case. Evidence lies at the heart of any court proceeding, so much so that the Supreme Court and Congress worked in conjunction to compile and codify robust common law evidence rules into the Federal Rules of Evidence.[12] While an attempt to admit a victim’s folder would implicate many narrow issues that would require fact-based analysis, courts will have to consider certain broad evidence and Constitutional questions that would apply regardless of specific facts. This section provides an overview of some of those broad questions.
The initial hurdle when determining the admissibility of a victim’s folder, like any piece of evidence, lies in the question of relevance. The relevance of any evidence turns on the proponent’s reason for presenting it.[13] Proffered evidence may be relevant for some purposes, but not others.[14] While the folder’s relevance would be the first, and potentially most important, requirement for admission, such inquiry remains is highly fact-specific, and speculation is not productive. Assuming the court overrules an opposing party’s relevance challenge the opposition next raise a challenge based on authentication—that is, if the evidence is what the proponent claims it is.[15]
A lawyer could authenticate a victim’s folder in several ways.[16] They may offer testimony of a witness who saw the victim completing the information in the folder[17] or who can attest to private information in the document that only the victim would know.[18] If handwritten, a lay person[19] or expert could testify to similarities between the handwriting in the document and the victim’s previously authenticated handwriting.[20]
However, evidence that passes relevance and authentication challenges may still face the law student’s greatest fear: an objection based on the rule against hearsay. The rule against hearsay prevents a party from offering evidence in the form of statements made outside of court as proof that the content of the statement is true.[21] In cases where lawyers have attempted to offer a person’s private writings or recollections as evidence, the opposing party invoked the hearsay rule to prevent admission of the writing.[22] Hearsay challenges can be difficult to navigate for both parties to a case because the rule comes with numerous exceptions and exemptions.[23] One hearsay exception allows for admission of “[a] statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health).” Absent this use, an opposing party could successfully bar admission of this statement as inadmissible hearsay.[24] This exception could prove helpful if a prosecutor wished to enter certain parts of an If I Go Missing Folder, like a list of people to question that includes the accused, to illustrate the victim’s mental feeling that the accused could cause them serious harm, but not as proof of the accused’s guilt.
Alternatively, if the defense used the folder for a reason other than to prove the truth of the matter asserted, the evidence may be admissible if deemed relevant.[25] When a party offers an individual’s out of court statements as evidence of the declarants state of mind the statement is “not hearsay at all because [it is] not offered to prove the truth of the declaration.”[26] Proponents often offer statements to prove—circumstantially—whether the declarant was of sound mind.[27] For example, a proponent could offer a folder in an attempt to show that its author was paranoid, nervous, or some other mental state if that information is relevant.
The final evidentiary hurdle is based in the Constitution, rather than the Federal Rules of Evidence. In a criminal trial, the Sixth Amendment provides the accused the right “to be confronted with the witnesses against him.”[28] In Crawford v. Washington, the Supreme Court ruled that, in a criminal trial, this clause prevents the admission of otherwise permissible hearsay when the statement is testimonial, the declarant is unavailable for cross-examination, and the statement was not previously subject to cross-examination by the accused.[29] While the Court declined to provide a binding definition of “testimonial” in Crawford, it did propose that a statement may be testimonial if “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”[30] Given the ultimate purpose of these folders—to help police find a missing person—a court would likely rule that its contents are testimonial. Thus, in a criminal case where the author of the folder is not available for cross-examination, the Sixth Amendment would bar admission of this evidence.
III. Conclusion
One hopes that the exploration in this piece is much ado about nothing—that the likelihood of being a victim of homicide remains low and these folders remain filed away from the public eye. However, if opposite circumstances occur, an If I Go Missing folder may prove a novel riddle for the assigned judge. In the interim, if the folders make women feel safer, maybe they are worth the time and money.
*Andrea Hutton is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. Andrea received dual bachelor’s degrees from Louisiana State University in Public Relations and Fashion Merchandising. Before law school, she had a nearly 10-year career in digital marketing and business development. She intends to practice real estate law.
[1] Lindsey Webb, True Crime and Danger Narratives: Reflections on Stories of Violence, Race, and (In)justice, 24 J. Gender Race & Just. 131, 150 (2021).
[2] Id. at 151.
[3] See Emma Berquist, True Crime Is Rotting Our Brains, Gawker (Oct. 12, 2021), https://www.gawker.com/culture/true-crime-is-rotting-our-brains.
[4] See id.
[5] See id.
[6] Fortesa Latifi, ‘If I Go Missing’ Folders for the (Very Unlikely) Possibility That You Do, N.Y. Times (Aug. 19, 2023), https://www.nytimes.com/2023/08/19/style/if-i-go-missing-folders-binders.html.
[7] Id.
[8] Ashley Flowers & Brit Prawat, If I Go Missing, Crime Junkie, https://crimejunkiepodcast.com/wp-content/uploads/2022/02/CJP-If-I-Go-Missing-2022-Editable.pdf.
[9] “In Case I Go Missing” Binder, Savor, https://savor.us/collections/just-in-case-collection/products/in-case-i-go-missing-binder?variant=42761566224642.
[10] Michael Levenson, Maryland Supreme Court to Hear Arguments in Adnan Syed Case,N.Y. Times (Oct. 4, 2023), https://www.nytimes.com/2023/10/04/us/adnan-syed-serial-supreme-court-maryland.html.
[11] Id.
[12] See G. Alexander Nunn, The Living Rules of Evidence, 170 U. Pa. L. Rev. 956–57 (2022).
[13] See Fed. R. Evidence 401 advisory committee’s note to 1972 proposed rules (explaining the need for a relevancy rule).
[14] See id.
[15] See Fed. R. Evid. 901(a).
[16] See Fed. R. Evid. 901.
[17] Id. at 901(b)(1).
[18] Id. at 901(b)(4).
[19] Id. at 901(b)(2).
[20] Id. at 901(b)(3).
[21] See Fed. R. Evid. 801(c), 802.
[22] See State v. Williams, 133 Ariz. 220, 227 (1982).
[23] See Fed. R. Evid. 803–07.
[24] Id.
[25] Williams, 133 Ariz. at 228.
[26] Id.
[27] Fed. R. Evid. 801.
[28] U.S. Const. amend. VI.
[29] Crawford v. Washington, 541 U.S. 36, 68 (2004).
[30] Id. at 52.
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