How do you get this booking photo into evidence?

With a straight face.

Objection, your honor. That's hearsay.

A few years ago, at a certain well-known bar in San Angelo, I bought a t-shirt that said, "Rehab is for quitters." I never could find an occassion where it felt appropriate to wear it. Guess that was a good thing.

803(4). And, a straight face. (Remove tongue from cheek, sarcasm off).

Admission by a Party Opponent.

Correct. It is not hearsay, because the statement is being made by the defendant (or at least the defendant seems to be adopting the statement being made by the t-shirt). Such statements are admissions of a party opponent and, therefore, not even hearsay. Of course, the statement is an admission only if the offense for which the defendant was arrested relates to the statement.

And it does, as the defendant was arrested for DWI.

Hearsay, and its exceptions, apply to persons other than the defendant.

Objection by the defense: 404(a) - Aside from its undoubted intent as a joke rather than a confession, the you are attempting to use her character trait as a drunk to prove that she was drunk at the time; i.e. this is character conformity evidence and impermissible under 404(a).

State's response: ????

(I'd print the answer upside down on the bottom of the page, but I can't. I'll provide my answer after you guys have had a chance to take a shot at it.)

True, she does say she is "a drunk" rather than simply drunk. But perhaps, then, the t-shirt is simply evidence of her "habit" of getting drunk, thereby increasing the likelihood that she was, in fact, drunk on the occasion in question.

So, Rule 406 (habit; routine practice), to show she was in conformity with the habit or routine practice.

That wasn't my answer, but no one said I had them all. I would've responded that it was evidence of intent or motive that when she drank on the occasion in question, her purpose was to become intoxicated. Therefore, the evidence is not offered to show conformity with her character, but a reasonable deduction from the evidence is that a person who puts that shirt on and then starts drinking has no intention of drinking responsibly.

It's also good evidence that she understands the concept of intoxication. She probably can recite the FST's by heart.

Perhaps even better would be the relevance of the last line of the t-shirt at punishment. Not a good candidate for probation, as she mocks the concept of treatment.

Show me a case which says wearing a text-laden shirt constitutes an adoption of the content by the wearer. Maybe if the wearer produced the shirt (i.e was the declarant), or you could prove it was worn with that specific intent (e.g. to promote an event one was participating in). But, admission by adoption seems pretty thin to me. A bumper sticker might be different. Since the state of intoxication (for legal purposes) generally requires no mens rea, I do not think offering it as proof of intent works either. Nor does the content of the shirt show anything about the habits of the wearer (other than perhaps their clothing habits). Maybe that would be different if it said, "I am wearing this shirt because I like to get drunk and want everyone to know that." If the book-in officer had asked, "would you like to change your shirt before I take your picture," and the answer was negative, then you might have a provable adoption. Especially if the shirt said, "I confess, I did it."

Most of my shirts say something like, "Machine wash warm with like colors" - but I'd prefer to take a stand-up, old-fashioned, non-mechanical shower alone. And even though they say, "Tumble dry," I think a towel hurts less.

Exit only and thanks to the fellow who bought my new book. My Amazon rating has sky-rocketed.

I don't think the jury would really care if they've "adopted the content"...

Sounds like that shirt would be a good prize in the Jail Mail Theatre competition, JB.

How about not hearsay because it's not for the truth of the matter asserted? Or it's not hearsay because it's not a statement made by the defendant? The jury would still be clear on what her opinion is on drinking, without the prosecutor actually saying that every funny shirt is a true statement of the defendant's opinion.

Let's say there is a video on-scene and at the jail of defendant doing the FST's, and there is the T-shirt with the world to see. The defense couldn't actually think they could keep the video out based on their client's own wardrobe choice?

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Originally posted by Martin Peterson:
Show me a case which says wearing a text-laden shirt constitutes an adoption of the content by the wearer. ... A bumper sticker might be different.

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Seems to me putting a slogan across your chest is more of an adoption than putting it on the bumper of your car. If someone was standing on the street corner with a sign that said, "Vote for Smith" wouldn't you agree the person is adopting the statement? While I agree that the "statement" made by the t-shirt shouldn't always be taken literally, the person is clearly adopting the "meaning" of the shirt. For example, a person who wears a rock band t-shirt is surely claiming to be a fan of the band. (And no, bands of law enforcement types including banjo players do not get their own t-shirts.) Likewise, while she may not be adopting the statement "I am a drunk," per se, the slogan is evidence about her attitude towards alcohol abuse, which is evidence of her intent when she drinks.

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Since the state of intoxication (for legal purposes) generally requires no mens rea, I do not think offering it as proof of intent works either.

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You're referring to the fact that we don't have to prove the person intended to drive drunk. But I think proof that the person intended to become drunk would certainly be relevant as to whether they were drunk when arrested.

Had a DWI case once in which the defendant was arrested leaving a halloween party in her costume - jail stripes. She pled, so I don't know what the judge would have done with it. I don't have the technology to do the fuzzy blobs like they do when they want to block nudity or unauthorized brand names/symbols on TV.

Since I missed most of the opportunity to go for the jokes, I'll give a serious answer. PhotoShop. Crop function.

Statement of then-existing mental, emotional AND physical condition ... not only the willingness to drink 'til she sees Elvis then drive over to get a tattoo involving some form of incongruent imagery, but also to noodle and to send our office jail mail about her entitlement to good conduct time. That's probably a bit speculative, isn't it?

I mean no harm by my ham-handed attempt at humor. This lady may be someone's mother. And that someone will probably be drunk the day she gets out of ... well, you know the rest.