Thursday, August 17, 2006

No Confrontation Problem if Not Offered for the Truth

The confrontation right only arises if the statement in question is offered into evidence for the truth of what it asserts. This basic principle, enunciated in Tennessee v. Street, 471 U.S. 409 (1985), was specifically reaffirmed in Crawford, 541 U.S. at 59 n.9. Occasionally a court will forget this point and create a Confrontation Clause issue where none exists.

I was reminded of this by the decision yesterday in State v. Woinarowicz, 2006 N.D. 179, 2006 WL 2360187. This was a drug case, and the defendant objected to the introduction of evidence found in her hotel room. A police officer testified at a suppression hearing that a friend of the defendant had given consent to enter and search the room. The defendant objected on the basis of the Confrontation Clause.

The North Dakota Supreme Court rightly rejected this objection. The basis for the Court's decision was that the Confrontation Clause doesn't apply at suppression hearings. Well, fair enough. That's certainly what the decisions say, though as I've pointed out before if the Clause itself doesn't apply there still should be some confrontation right as a matter of due process at suppression hearings: A court wouldn't let a prosecution witness step down from the stand without being subjected to cross, and the prosecution shouldn't be able to avoid cross by taking the testimony out of court.

A crisper, cleaner way of reaching the result in this case would have been to hold that there could not have been a confrontation problem because the friend's utterance was not being offered for the truth of any proposition that it asserted. Now, one might say that it literally asserted that the police had consent and that it was offered to prove that the police had consent. But the utterance here was not a report of any matter. Rather, it was an act of operative significance. If the friend said what the officer testified she said, the police had consent because she said it -- that utterance was the act giving the police consent. The officer therefore testified to a consent-giving event that he personally witnessed, and one could not ask the prosecution to do better than that.


Anonymous said...

I'm curious if Crawford/Davis applies to co-conspirator statements, which are specifically defined in 801(d)(2)(E) as non-hearsay. They also seem to be admitted more based on prinicples than any perceived reliability.

Anonymous said...

"principles [of agency]" is what I meant to add at the end.

Richard D. Friedman said...

Crawford says that the Confrontation Clause does not apply to conspirator statements. The treatment of them under hearsay law should not matter -- Crawford abandons the bizarre Roberts approach of letting hearsay law determine the bounds of a constitutional right. But if a statement is truly made in furtherance of a conspiracy, it cannot be testimonial, because it is not made (from the declarant's view, which is what I believe is decisive) with litigation use in mind. If the statement is made knowingly to a police officer by a member of the conspiracy, then it may be testimonial, but it presumably was not made in furtherance of the conspiracy -- and therefore also does not fit within the hearsay exemption. Thus, the hearsay exemption conforms to the constitutional line, and I believe the exemption developed in implicit sensitivity to the confrontation right.

Anonymous said...

It is not clear to me why a co-conspirator statement cannot also be testimonial, notwithstanding the language in Crawford. Prisoners, for example, frequently make phone calls to direct drug dealing on the outside or to cover-up their crimes. They know full well that their statements are being recorded and that the police and D.A. will do everything they can to use them in court. They talk in code to try to prevent this. Under the broadest definition suggested in Crawford, these statements are testimonial because the declarants are aware that they may be used as such. They are also co-conspirator statements because conspiracies continue through the cover-up phase, or can be entirely conceived within the prison. Just because they know the police are listening doesn't mean they give up on their conspiracies.
Are such statements nonetheless nontestimonial because their intended audiences is not gathering testimony, even though they are knowingly made to someone who is? In other words, does Crawford/Davis look toward the declarant's purpose, or toward his knowlege of how the statement will be used?

Scott Drexel
Georgetown Law Grad '06
Clerk for the Santa Clara Co. CA D.A. (anxiously awaiting bar results).

Richard D. Friedman said...

That's an interesting point. Oneo fhte mabiguities of Daivs is whose perspective the question must be judged from. I think ultimately the matter must be judged from the perspective of the declarant, and that it is a matter of anticipaiton rather than purpose. So what about the coded messages by imprisoned ddrug dealers? I'd say the declarants in those cases still don't have an anticipaiton of prosecutorial use; if they thought that use was a significant probability, then presumably they would not make the statements, and even if they understand they are being listened to they appear to have (perhaps misplaced) confidence in their confidential code.

Christopher J. McGrath said...

Can a trial court's admission of a prior inconsistent statement in a criminal proceeding ever implicate the Confrontation Clause if the statement is purportedly offered for impeachment purposes rather than to prove the truth of the matter asserted? I am working on a case where such a statement was admitted in order for the prosecutor to impeach the testimony of his own witness who became unavailable after she testified at trial. The trial court instructed the jury that the witness's prior statement could only be considered for impeachment purposes. But, the prosecutor sought to undo the effect of the limiting instruction by arguing to the jury that the prior statement was "damning evidence". Are you aware of any confrontation cases where a conviction was reversed because a prosecutor diluted a limiting instruction during closing arguments?

Richard D. Friedman said...

I think there are two levels to this problem. First, was there a Confrontation Clause violation because the prosecutor effectively used the statement for the truth? I'd have to know more. California v. Green, reaffirmed by Crawford, says there is no obstacle under the Clause to admitting a prior inconsistent statement of a witness for the truth of what it asserts. Now, of course, Green was considering the situation in which the witness is present and still subject to cross when the prior statement is introduced, but perhaps its (faulty) logic would still apply in this case -- i.e., the idea that the very inconsistency has given the accused the equivalent of devastating cross. This is ridiculous, of course. The inconsistency is not likely to cause the jury to forget about this witness; in many circumstances, the jury will assume that the prior statement is true and that the witness walked away from it for some reason not undercutting its truthfulness. Nevertheless, this is the law and a court might apply it to the circumstance in which the witness was around long enough to create the conflict with the prior statement.

Assuming there is no Confrontation Clause problem, it remains, taking Mr. McGrath's rendition, that the prosecutor violated the instruction. Personally, I don't know of cases dealing with this situation, though I've got to believe they're out there. But if the prosecutor violated a clear limitation by the court, then some remedy must be appropriate. The choice might lie in the discretion of the trial court, though, and given that the trial court didn't think the violation of its own instructions warranted a mistrial, the appellate court might be reluctant to reverse.