In one of zillions of felony cases in Superior Court the State has filed a clarification motion regarding TER reviews and website ads.
"Facts: During the course of the investigation of xxx, the Vice Squad of the Phoenix Police Department accumulated an immense amount of evidence, including newspaper articles, Internet reviews, Internet advertisements, and marketing materials, showing that xxxx operated as a house of prostitution."
(Goes into specific details of client reviews on prostitution websites such as "The Erotic Review" with "star" ratings etc.)
"Many of the reviewers explicitly described the sexual favors that they had received from xxx and some reviewers even intimated that their sole intention in visiting xxxx was to receive sexual favors in exchange for money..." ( Goes on about BP ads etc in known prostitution sites).
"Internet Reviews
The State does not intend to offer any Internet reviews, including those found on “The Erotic Review,” into evidence in its case-in-chief. Provided that the defendants elect to put the following fact at issue, however, the State may offer such Internet reviews into evidence during rebuttal for the purpose showing that xxxx sole intention in visiting xxxx was to receive sexual favors in exchange for money....
"Because the reviews would not be offered to prove the truth of the matter asserted, i.e., the sexual favors received or the reviewer’s rating of xxx the reviews offered in this circumstance would not be considered hearsay, and should therefore be admissible at trial.
"Advertisements...
The State intends to offer both xxxxx Internet advertisements and xxxx marketing materials into evidence in its case-in-chief. All such evidence should be admissible at trial for two reasons: first, all such evidence are opposing party’s statements, i.e., not hearsay, according to Ariz. R. Evid. 801(d)(2)(D) and; second, the business records exception, Ariz. R. Evid. 803(6), applies to all such evidence.
"Under Ariz. R. Evid. 801(d)(2)(D), a statement that is offered against an opposing party and was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed is not hearsay. Here, xxxx” Internet advertisements and xxx marketing materials were both created by xxx’s agents or employees in order to attract business to xxx.
"Furthermore, the business records exception, Ariz. R. Evid. 803(6), applies to all of xxx’s Internet advertisements and marketing materials. Ariz. R. Evid. 803(6) provides that the following is not excluded by the rule against hearsay:
A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by -- or from information transmitted by -- someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
"All of the Internet advertisements and marketing materials were made at the time by someone with knowledge, kept in the course of a regularly conductive activity of the Temple xxxx and made during the regular practice of creating the Internet advertisements and marketing materials (Dave notes I beleive this relates to xxx's website). Furthermore, all of the foregoing conditions will be shown by a requirement imposed by subsection (D).
"Finally, the defendant cannot show that either the source of the information or the method or circumstances of the preparation of the Internet advertisements and/or marketing materials indicate a lack of trustworthiness. Accordingly, all of the Internet advertisements and marketing materials should be admissible under the business records exception.