On Friday, the Supreme Court of Michigan issued its decision in People v. Washington, a case about which I have posted a couple of times before, here and here. The decision is an excellent one on several issues related to the Confrontation Clause. (There was another issue, which I’ll just mention briefly.) It was unanimous, written by Justice David Viviano, who as it happens is a former student of mine – but not, as I recall, in Evidence!
The basic facts are simple:
Washington blew past a toll at a border crossing between the US and
Canada. Some time later, Canadian officers brought him back. None
of them testified at trial. But the American officer in charge, Paul
Stockwell, testified that he had communications with the lead Canadian officer,
Matthew Lavers, and that as a result he took custody of Washington and body
armor (a bullet-proof vest) that Lavers brought along with him. Washington was charged with
possession of body armor by a person who has been convicted of a violent
felony. (He also made statements to his mother acknowledging that he had
had the vest; the admissibility of those was in question on other grounds,
mentioned briefly below.)
The intermediate appellate court held that the evidence concerning the Lavers-Stockwell exchange violated the Confrontation Clause, and the State appealed. There are several issues related to the Clause. I'll take them up in an order different from the court's.
First, nothing that Lavers said was explicitly admitted into evidence. So was there a Confrontation Clause issue (or for that matter a potential hearsay issue) at all? Drawing on ample precedent, the Washington court held that a statement is effectively introduced "if the [in-court] witness’s testimony leads to a clear and logical inference that the out-of-court declarant made." Some courts put the point differently, asking whether the substance of the statement was conveyed. It all comes out to the same point. However the test is phrased, it was satisfied here — the clear inference to be drawn from Stockwell's testimony was that Lavers had told him that the Canadian officers had recovered the vest from Washington's possession. Note that we don't need to know the exact words that Lavers used; we rarely do when a witness recounts an oral statement. We don't even need to know whether Lavers said that Washington was wearing the vest, because that was not necessary for the prosecution; it is clear that Lavers said something to the effect that Washington had possessed the vest, and that's what the prosecution used it for.
Some courts in addressing this issue ask whether the statement is "implied" in the in-court testimony or alternatively whether it is "introduced implicitly" through that testimony. There's noting inherently wrong with such phrasing, but in this case it led to some confusion, which the supreme court nicely cleared up. Hearsay, in most modern codifications, does not include action that appears to reflect the actor's belief in the proposition at issue but does not actually assert that proposition, and presumably the Confrontation Clause would be held inapplicable to such conduct as well. The term "implied assertion" is sometimes used to refer to such conduct — not a helpful term in my view (because one can make an assertion without doing so explicitly), but so it goes. The dissenting judge below, and the prosecution in the state supreme court, invoked this doctrine. But that is just a category error, as the supreme court made clear in footnote 11 of its opinion: So-called implied assertions are conduct of the out-of-court actor that do not assert the proposition. Here, Lavers, the out-of-court actor, did clearly make an assertion of the proposition at issue. The "implicit" or "implied" aspect is in inferring what he said from the testimony of the in-court witness. That is an altogether different matter. And note why it makes a difference for the Confrontation Clause: If Lavers made the statement, and it was testimonial and introduced for the truth of what it asserted (all true here, as will be further discussed below), then there is a Confrontation Clause violation in introducing evidence of the statement, and the prosecution should not be able to avoid that conclusion by presenting evidence that, wink, wink, doesn't quite report explicitly that Lavers made the statement but makes clear that he did and what the substance of it was. But if Lavers merely acted in a way that suggests he believed in the proposition at issue, but did not try to communicate that proposition to another person, then in no proper sense can he be deemed to have testified.
Second, was the statement testimonial? Drawing on its decision in People v. Fackelman, 802 NW2d 552 (2011), the court held that the "primary purpose" test only applies in the emergency context. I would love to see the U.S. Supreme Court narrow the scope of the "primary purpose" test in this fashion. That Court's recent decision in Smith v. Arizona continued to invoke the "primary purpose" test, but Justice Gorsuch treated the matter as an open question. So we'll see what happens.
Instead of trying to discern the purpose of the statement, the Washington court said, "the standard requires courts to consider the foreseeability—based on the context at the time the statement was made—of whether the statement would later be used at trial." That, I think, is basically the proper approach, making the test one of reasonable expectation rather than of purpose and clearly operating from the perspective of the speaker; the court quoted Fisher v. Commonwealth, 620 SW3d 1 (Ky. 2021), which repeatedly termed the proper approach "declarant-centric." Just right.
In applying the test, the court stressed that it was highly context-dependent. It emphasized that Lavers's statement was made to another law enforcement officer —but without suggesting that this was a prerequisite —and also that Lavers made the statement while turning custody of Washington over to Stockwell after having arrested Washington for engaging criminal activity. There is more that the court could have said with reference to the vest particularly. But this was enough.
Third, was the statement offered for the truth of what it asserted? The prosecution tried to argue that it was not, because it was offered to show the chain of custody. But that got them nowhere. As the court made clear, chain-of-custody evidence must be admissible, and that includes satisfying the Confrontation Clause. And to show a chain of custody that would be relevant to the case, the prosecution would have the prove that Washington possessed the vest, which is what the statement asserted.
The prosecution also argued that the evidence of Lavers's statement was admissible to explain Stockwell's conduct in taking Washington and the vest into custody. This is what I have often referred to as an end-run around the Confrontation Clause: "We're not offering it to prove what it says, but only to explain the officer's conduct." The court also properly rejected this contention. It said that the evidence was substantive proof that Washington was guilty of the crime charged. Yes, but it seems to me that this only sets the problem up: The evidence, if taken to be true, tends to prove the crime charged, but the prosecution is contending that it has value irrespective of its truth, to prove the officer's conduct, and that it could be admitted for that purpose alone. I think the real answer is expressed well in United States v. Kizzee, 877 F.3d 650 (5th Cir. 2017), which the Washington court quotes at length in a footnote: Unless the accused is challenging the adequacy of an investigation (and Washington did not challenge the adequacy of this one), there is little or no need to present additional context, and the evidence is highly prejudicial.
It is highly prejudicial in the sense that the jury is likely to use it for the purpose forbidden by the Confrontation Clause, to prove the truth of what the statement asserts. I have long thought this is a particularly vulnerable setting for the confrontation right: The prosecution articulates some purpose for which the statement is supposedly relevant irrespective of the truth, and asks for it to be admitted for that purpose, with a limiting instruction supposedly doing the work of ensuring that the jury does not use it for the truth. Given the U.S. Supreme Court's professed faith in the power of limiting instructions, see, e.g., Samia v. United States (U.S. 2023), except, apparently, when a former President of the United States is the accused, Trump v. United States (U.S. 2024), slip op. at 31-32, there is no sure-fire protection against abusive use of this technique other than case-by-case vigilance of the courts. It is good to see such vigilance in cases such as Washington.
In the end, the Washington court remanded the case, because Washington himself had made statements acknowledging that he possessed the vest. The court of appeals had held these inadmissible under the doctrine of corpus delicti. But the state supreme court reversed on that issue, on the ground that this doctrine only applies to confessions and Washington's statements were not confessions, because they admitted only possession and not the full crime, which also required a prior conviction. So the case has to go back down to determine whether the Confrontation Clause violation was harmless error. Bottom line: The decision is not a clear victory for Washington, but it is for the confrontation right.
