Wednesday, January 25, 2006

The Not-for-the-Truth End Run

The recent decisions of the Second Circuit in Martha Stewart’s case, United States v. Stewart, 2006 WL 27583, and of the First Circuit in United States v. Walter, 2006 WL 51398, may portend a disturbing new trend – to evade the confrontation right simply by holding that the statement in question was admitted for some proposition other than the truth of what it asserted. There is no doubt that, even though a statement is testimonial in nature, it may, in an appropriate case, be admitted for some proposition other than the truth of what it asserts without raising a Confrontation Clause issue; Crawford holds this explicitly, 541 U.S. 36 at 59 n. 9, reaffirming Tennessee v. Street, 479 US 409. But these recent cases highlight the dangers created by this doctrine.

In Stewart and Walter, from what I gather from an exchange of messages with defense counsel (and I would be glad to lear any information bearing on the point), the not-for-the-truth theories were, at least for the most part, not the ones on which the statements were actually admitted; rather, they appear to have been creations of the appellate courts. This is not an acceptable result. If, in responding to a post-conviction motion or appeal raising a confrontation issue, the prosecution wants to claim the not-for-the-truth end run, then it seems to me the court must first make sure that in fact the statement was not offered for the truth. It seems that something like this set of conditions should be rpescribed: (1) Assuming the defense made a confrontation objection, the prosecution must have asserted the alternative theory of admission. (2) The trial judge must have offered to give a limiting instruction. (3) The prosecution must have argued to the jury, if at all, on the basis of the alternative theory and not on the basis that the facts are as asserted in the statement because that is what the statement asserts. (4) Unless some other, non-testimonial statement by the declarant is also admitted, the prosecution must not have tried to support the declarant’s credibility. Only if these conditions are satisfied should the court conclude that the statement was genuinely admitted for a purpose other than the truth of what it asserted. I doubt that these conditions were satisfied in either Stewart or Walter.

Even if these conditions are satisfied, that does not end the problem. In some settings at least, it is relatively easy for the prosecution, or for a court eager to aid the prosecution, to come up with some material proposition other than the truth of the matter asserted that the statement helps prove. The court can then do an end run around the Confrontation Clause, ruling that the statement is admissible on this alternative basis rather than for the truth of the matter asserted. But if the statement is powerful enough, the jury will in all likelihood consider it for the truth of what it asserts, notwithstanding an instruction. Indeed, the prosecution may have devised that alternative theory in hopes that the jury would do precisely that. Say witness W makes a statement to a police officer accusing defendant D of a crime – and if you think any other conditions are necessary for the statement to be characterized as testimonial (I don’t) assume those conditions as well. So then the prosecution says, "Oh no, we’re not offering this on the ground that because W made the statement it makes those facts more probably true. Perish the thought. We’re just offering it to dispel any concerns the jury might have that D was arrested as a result of police animus." And then assume the prosecution adheres rigidly to that constraint in argument. This strikes me as a transparent evasion of the confrontation right. The value of the evidence to prove the proposition for which it is supposedly offered is minimal, but it will be very tempting for the jury to consider the statement for its truth, the instruction notwithstanding.

The problem has particular bite because, in general, there are not constitutional restraints preventing the use of evidence to prove a given proposition on the grounds that the need for proving the proposition is minimal. Given the Street rule, therefore, the path seems open to courts and prosecutors to devise alternative propositions for which a statement may be offered. But because in this setting such an alternative path to admissibility may be an end run around a constitutional right, it seems to me the Constitution must come into play. At a minimum, when a prosecutor offers a testimonial statement on grounds other than the truth of the matter asserted, the Confrontation Clause should be deemed to require that the court ask the following questions: (1) Is it likely that, even with an instruction, the jury would use the statement for the truth of what it asserts? (2) Is admission of the statement necessary on some alternative basis to correct a misimpression that otherwise would be left by the accused? (See my prior post on "Opening the Door".) (3) Does the prosecution genuinely have some other substantial need for the statement on the alternative ground of admission, taking into account other alternatives (and a stipulation, if the defense offers one)? What to do with the answers to those questions may be a rather complex problem. As an initial crack, I would say that the statement may be admitted only if (A) the answer to (2) is yes, or (B) the answer to (1) is no and the answer to (3) is yes.

I don’t claim any confidence that this is an optimal result, and I would be curious what other solutions readers have to offer. I am pessimistic for a couple of reasons. The use of prior bad acts by prosecutors supposedly to prove propositions other than the propensity of the accused to commit the crime – knowledge, motive, etc., etc. – indicates that many courts will tend to be receptive to prosecutors’ arguments that they really need to introduce evidence on some alternative ground (even though the forbidden ground is what will do them the most good). And the post-Crawford history suggests that many courts will tend to bend doctrine in whatever way seems available to secure the admissibility of evidence, notwithstanding an assertion of the confrontation right. I do believe that where crisp rules and clear-cut procedures can be enunciated they may confine the courts. That should make the aspect of the problem represented by Stewart and Walter reasonably tractable. But this other aspect of the problem – what to do if the prosecution adheres to the form of offering the statement on a ground other than the truth of the matter asserted – is harder to solve.

I have, by the way, previously commented on the not-for-the-truth end run in a particular context, when the statement is offered supposedly in support of an expert opinion. Most recently, I did so in a post commenting on the decision of the New York Court of Appeals in People v. Goldstein, a much more satisfactory opinion in this realm than either Stewart or Walter.


Anonymous said...

Prof. Friedman -

I disagree with your comment that "in general" there are no "constitutional restraints" preventing a prosecutor from introducing evidence whose value is "minimal."

The same "constitutional restraint" that may govern the admissibility of nontestimonial hearsay should apply in this context -- Due Process.

Under a due process analysis, if the probative value of a particular piece of evidence is minimal, and it has a strong likelihood of prejudicing a defendant's right to a fair trial, it would seem to me that, depending upon the overall strength of the case, the due process guarantee of a fair trial might be undermined in a particular case.

Likewise, by defining testimonial statements very narrowly (in Davis and Hammon), the Court will not be eliminating all "constitutional" safeguards. To be sure, the Confrontation Clause will not provide the broad shield that you are advocating for. But, the shield of due process may remain?

Several justices have already indicated in prior opinions and in prior oral argument (See White v. Illinois [Thomas & Scalia], and the oral argument in White; see, also, Dutton v. Evans [Harlan]) that "due process" provides all the "constitutional" protection that a defendant is entitled to with respect to nontestimonial hearsay.

Richard D. Friedman said...

I won't get drawn in by this comment to discussing the pending cases. Substantively, I will only make only one point in response to the comment, on the topic of my posting -- that is, a statement that would violate the Confrontation Clause if admitted for the truth but that is supposedly offered for a proposition for which it has little probative value: Yes, there is theoretically an outer bound prescribed by Due Process, but I don't think it is generally an effective limit (thus I said that "in general" there are no constitutional restraints), in large part because it is so broad and amorphous. Hence, though the courts should use the Due Process Clause in this context, I am perrsimistic that this will be very effective -- unless good categorical rules can be developed, and I am not sure what they would be in this context.

And now also a point about blog procedure: Many comments have been made anonymously. I have allowed anonymous posting because, as I udnerstand it, othewise commentators would have te register, and I just want to save them the trouble. But I can't really see any reason why substantive comments should be made anpnmously, at least otuside a rare case. So I'm going to ask all commentators to identify themselves, either by registering or by including their names in their comments. IF the practice continues I'll either require registration or delete comments that don't identify the author. said...

This issue was recently addressed-unsatisfactiorly, in my opinion-by the Texas Court of Criminal Appeals in Hernandez v. State, PD-1879-06, delivered Oct.15, 2008. The Petitioner argued that her right of confrontation was violated when the trial court allowed her co-defendant's police statement into evidence. The statement was admitted under the theory that it was offered as "impeachment". During its case, the defense called 2 jailhouse witnesses who testified that the co-defendant told them the Petitioner was not responsible for the murder but that the co-defendant was; the trial court then allowed the State to introduce, as impeachment evidence, the co-defendant's statement to police, in which she attributed all culpability for the murder to Petitioner. The Petitioner's argument as to why Crawford applied was that the testimony in question was admissible as a product of State evidence law(a state rule of evidence allows the admission of hearsay to impeach other hearsay), and that State rules of evidence do not trump the US Constitution & right of confrontation. Call it what you will, the only thing the co-defendant's statement "impeached" was her other statements saying she did it. (In other words, even as impeachment evidence, the only issue the statement to police addressed was the ultimate question of who was responsible for the killing). The statement clearly was NOT in furtherance of the was her self-serving, custodial statement given to police after she had been arrested for capital murder and knew the possibility of the death penalty was hanging over her head...)
We are applying for rehearing before the Texas Court of Criminal Apeals, and maybe cert. to SCOTUS. Any ideas?