The Jodi Arias Trial: The Behind-the-Scenes Phone Sex Tape Legal Discussions

By | June 14, 2013

Judge Sherry Stevens of the Jodi Arias case has been releasing previously unsealed court documents to the public. The most recent release includes the in-chamber discussions about the infamous phone sex tape. The lawyers are arguing about whether or not the contents of the tape qualify as hearsay or as the “truth of the matter asserted.”

Jodi Black Shirt4

Legal jargon aside, the transcript shows you how important the phone sex tape was in the mind of the defense team.

The judge at one point asks the defense point blank: what is the purpose of the tape? Ms. Willmott responds that it “goes to Ms. Arias’s defense with regard to self-defense in the particular type of grooming, the way Travis treated her, the fact that when we keep hearing that there is no abuse, he never hit her, he never did this, things like that but then there’s also this other life going on because this tape is dated in May of 2008…”

Mr. Nurmi chimes in later with his ideas about what he thinks the evidence means. In his view, the tape relates to Ms. Laviolette’s testimony, who was prepping to discuss “the breaking down of boundaries, how Ms. Arias has certain boundaries, and how Mr. Alexander broke those down…”

Mr. Nurmi was convinced that this “abusive and exploitative relationship” played out on tape was “entirely relevant to not only her self-defense but also anything that could give rise to sudden heat of passion.”

Even after the case had already begun, her lawyers seem unclear about which defense to pursue.

Key elements of the tape, in the mind of Mr. Nurmi, also included Travis “tying her to a tree and putting it in her *ss…” which in his view “has to do with everything– the way he treated her…”

Mr. Nurmi also believed that the tape showed how Travis “degrades her opinion” which was evidence of a pattern of abuse. Mr. Nurmi anticipated that “expert testimony… will define a pattern and show how that makes Jodi’s abusive relationship (sic).”

Ms. Willmott also thought the tape was important to establish the fact that Travis had sexual knowledge beyond that of Jodi. Ms. Willmott expressed the view that the tape is especially important because it “goes to her state of mind. It goes to the understanding in our experts view in determining how Travis treated her because they’re looking at the fact that he is purporting— saying things like she’s a stalker and all of these things, that she’s not welcome at [his] house…[yet Mr. Alexander] is more than willing to have a phone sex conversation with her.”

Ultimately, Mr. Martinez points out what we all now know to be true: Jodi “is the one that called [Travis] to initiate [the phone sex]… He’s not going past these boundaries. No, he’s not. What he’s doing is he’s responding to her…. He’s not the aggressor, she is.”

Mr. Martinez is correct. Jodi was the aggressor. She used sex to manipulate Travis and was most likely planning to use the phone sex tape as blackmail. Even Jodi’s own brother, in a recent tweet, confirmed that she recorded Travis to use it against him via extortion or blackmail.

10 thoughts on “The Jodi Arias Trial: The Behind-the-Scenes Phone Sex Tape Legal Discussions

  1. Maria Cristina Santana, JD

    The real reason the defense wanted the taped conversation introduced into evidence was to portray Travis in an unfavorable light to the jury. Attacks on the victim’s character under the rules of evidence are allowed provided they are directly linked to the defense theory. This is part of how the defense theory evolved–ass backward.

    Ass-backward because they needed excuses to destroy Travis’ character, excuses to introduce the tape, and for that they needed to fabricate a defense theory that could tie those together. (Jodi insisted on this tape and even made clear in her extortion letter to Juan while representing herself that the trial would show Travis as a deviant.)
    This is why sudden heat of passion was suddenly raised as a possibility, not because they were going to put on any evidence of that, but because they needed something to tie the tape into a defense theory that would make it admissible. All ass-backward.

    What we capture on the transcript are the rules of evidence proposed by the defense to disguise this reverse engineering of the defense theory around the tape and to get the tape to portray Travis as a sexual deviant who forced Jodi into sexual acts she did not want. But that would be hearsay…

    The prosecution correctly argued that the tape is inadmissible hearsay because the definition of hearsay is “an out of court statement introduced to prove the truth of the matter asserted.” In Juan’s view, the tape was being introduced by the defense to prove that Travis actually did want to stick it in her ass, tie her up, etc, and that the sex games they discussed really did occur. All of that is HEARSAY to prove the out of court statements are true. Hearsay is not always inadmissible because there are certain exceptions. But the main policy reason is that the person is not there to explain or deny what the statements really meant and it does not have a high degree of reliability without cross examination.

    To me there’s no question the defense was trying to find a way around hearsay knowing fully well that they wanted it introduced to prove those very things (that he stuck it in her ass, tied her up) which they disingenuously deny.

    The judge asked why the expert cannot just explain how she used the information on the tape since experts can use hearsay in their evaluations without the statement, tape or document being introduced into evidence. But that was not enough for Willmott and Nurmi because they wanted the jury to get a bad impression of Travis and to believe the statements made were acts he did. (To prove the truth of the matter asserted/hearsay.)

    So the defense maneuvered to invoke other rules of evidence denying the purpose was to prove the matter asserted on the tape. “State of mind” is one of the exceptions to hearsay making it admissible. So she argues it goes to prove Jodi’s state of mind, not that Travis put it in her ass, no, no. Everything else the defense argued had to support the idea that the evidence only goes to show how Jodi’s state of mind was affected by these interactions (big fat lie).

    In support of that Willmott repeated several times that it’s “the best evidence.” I’ve read other blogs where people assume she meant it was the defense’s most important evidence. But what she meant was a rule called “the best evidence rule” which requires that the actual recording or actual written document, if it exists, must be introduced instead of someone explaining what’s in it (except for experts who can just explain it.) So Willmott throws out “best evidence” several times insisting it has to be introduced!

    In the end, Judge Stephens did not allow the tape at that point for those purposes. The only way she allowed it was if a proper foundation were laid by Jodi’s own testimony–meaning the only way it was admissible is if Jodi, who taped it and is also on the tape, testifies about her “state of mind” and can be cross examined about. So if Jodi did not testify, there is no state of mind exception to hearsay and no tape. I don’t think this part of the transcript captures how the court ruled, but that was the outcome.

    Nothing about the defense’s arguments were genuine expressions of their underlying motives, in my opinion.

  2. Chris Larson

    Bringing the sex tape in back-fired on the defense,it showed that both Jodi and Travis were willing participants. I’m sure the defense wanted some on the jury to be shocked and disgusted by the tape to make Travis look like he was taking advantage of Jodi. And it may have worked with a few jurors. What I heard on that tape was Jodi steering the conversation and asking Travis to repeat a few himself a few times. I found that telling. She wanted to make sure those comments were heard loud and clear. He sounded tired on the tape,and there is no way he knew he was being recorded. I find it disturbing in so many ways that she taped such an intimate ,private conversation without his knowledge. Was it for her to listen to and then use it against him if needed? The phone that she recorded it on was missing for two years and was miraculously found under the seat in her Grandmother’s car, around the time she admitted to the killing and decided on self-defense. just another coincidence for Jodi…..

  3. Alisa

    Maria Cristina Santana, JD:

    Thank you so much for your comment. Your clear explanation of the legal rules and arguments make it clear to a layperson, like me, to understand. It’s much appreciated!

    Alisa

      1. Uppity

        If I ever get into trouble, I want you to defend me. We can have Dr. R check my head out too. Then we can all go out for a drink.

        1. Maria Cristina Santana, JD

          We can get started on your defense right now, just start writing in your journal… :)

  4. Don Osborne

    This ‘sex tape’ was as close to a goal that the defense managed for the entire trial, as it is obviously made an impression on one of the jury – the foreman. Apart from it being a contrived piece of ‘evidence’ to attempt to show the victim as a person of low morality, it actually had no relevance as to whether it was a couple of ninjas, a being from outer space or whatever that entered the victim’s home and sadistically slaughtered him. Nor did her abominable claim that he was a pedophile
    However, that – coupled with the tripe espoused by La Violette – had a marked effect on one gullible juror, but fortunately the majority saw it for what it was.

  5. Observer

    Maria makes some very good legal points about why Nurmi and Wilmott wanted the sex tape admitted. But I think Jodi Arias was using the sex tape as revenge against Travis Alexander for nor marrying her and therefore forcing her (in her twisted thinking) to murder him and his family and the state for not letting her plead guilty to second degree murder and get out of prison in a few short years. She believed she would serve less than the minimum: eight years because of good behavior and no criminal record.

    When Travis wouldn’t give in to Jodi’s blackmail and called her an evil sociopath and said she was the worst thing to happen to him and wanted nothing to do with her, she drove to his house with a stolen guy and knives in a rented car with the license plates removed, turned off her cell phone and used gas cans to fill the tank so there was no record of her being in Arizona, murdered Travis, got rid of the evidence, showed up on Ryan Byrne’s arm in Utah at a PPL conference, left Travis voice mail and sent him emails, attended his memorial, called the cops to offer help in catching the killer and sent flowers to his grandmother to throw suspicion off her.

    When she was arrested, her first concern was how she looked and how the public would see her. She asked Flores if she could put on makeup for her mugshot, if the story of her arrest would be on TV, if his family would know she was arrested and if there had to be a trial.

    When the state and family refused to negotiate a plea with her, she told the media after she was found guilty of first degree murder that she didn’t want to tarnish Travis’s name but when the state and family refused to “settle,” her attorneys decided to pull out all the stops and expose Travis Alexander as a hypocrite, abuser and pedophile for forcing them to go to court. She even told Troy Hayden that the sex tape showed Travis Alexander saying he wanted to have sex with a 12 year old, which is the definition of a pedophile.

    It was Jodi, not her attorneys, who forced the sexual deviant defense. Jodi fired all her attorneys and acted as her own attorney to introduce the forged pedophile letters and write a motion for the plea. When she failed at both, she asked for her attorneys back. Nurmi tried to get off the case twice before the trial began and twice during the trial.

    Jodi Arias believed she could twist others minds to believe that was what Travis said on the sex tape but all the jurors and public heard was Jodi talking in a little girl sexy voice and Travis saying she sounded like a 12 year old girl. Most people know pedophiles are attracted to bodies of prepubescent children and are turned off to bodies of 27 year old women with breast implants.

    The jurors who spoke to the media said none of the jurors believed the pedophile allegations because there was no proof and the two alternates who were asked about the sex tape said it was a “diversion” and “embarrassing.”

  6. Observer

    I think Jodia Arias believed all she had to do was play the sex tape and paint Travis Alexander as a pedophile and sex maniac and the jury would believe she did a service to society by killing him and would acquit her. I think the self defense theory was proposed to Arias by Samuels and Nurmi when Samuels said they told her the ninja story was not believable. Alice LaViolette even said when she first interviewed Arias she denied she was abused. So LaViolette gave her books about domestic violence to bring her out of denial. I am positive that the four abuse incidents Jodi described to Samuels, LaViolette, DeMarte and the jury came straight from a book about domestic violence. Experts say batterers escalate from a push, to a back hand, to a kick to a choking the victim unconscious.

    Arias was emotionless and robotic as if she had memorized a script when Nurmi asked her if she killed Travis Alexander and she turned to the jury and said, “Yes, I did” and he asked “Why?” and she responded, “The short of it is he attacked me and I defended myself.” She was also emotionless and sounded like she had memorized a script when she described how Alexander, a former wrestler, body slammed her and when she pointed the gun at him he came at her like a linebacker. I bet the words “wrestler” and “linebacker”were fed to her in rehearsal by Nurmi to put an image in the mind of the jurors of Alexander as a big violent brute who towered over the petite damsel in distress.

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