The "why I acted the way I did" end-run

 Prosecutors often try to get in testimonial evidence from absent witnesses by arguing that it is not offered for the truth of what it asserts but explains why a testifying officer acted the way he or she did.  This points to one of the great vulnerabilities of the confrontation right:  A prosecutor has an incentive to come up with some ground on which the evidence is relevant, other than for its truth, and given the low bar of relevance it is not hard to do so.  The courts therefore have to be closely vigilant to ensure that the right is not eviscerated in this way, state categorical rules as to when an asserted ground of not-for-the-truth relevance does not support admissibility of the evidence.  One frequently used such ground is the supposed need of the investigating officer to explain why the officer acted in the way he or she did.  But in most cases, there really is no need for such an explanation.  Tell us what you did, officer, and what happened after that.  Presumably you detected criminal activity, and the jury will know all it needs to about why you acted the way you did.  If the defendant raises some doubts about why you acted in a given way, well that may be a different story.  But short of that, there's no need to get into it.  

Some courts have realized this.  The Mississippi Court of Appeals issued a decision yesterday, Lowe v. State, that collects some of the cases.  In Lowe, a confidential informant told the officer that she could buy drugs from the defendant and had done so in the past.  The officer testified at trial but the CI did not.  The trial court allowed the statements in to explain the officer's conduct.  The appellate court seems not to have had any difficulty with the prediction -- it should have -- but it recognized that the statement of past conduct was testimonial and there was no need for it; its admission was a violation of the Confrontation Clause, though the court held the error harmless.