I have written before -- most recently here -- about how too often a court allows a prosecutor to introduce a testimonial statements on the ground that it is not offered for the truth, when the prosecution has no real need to prove the proposition for which the evidence supposedly is offered. In particular, courts often allow prosecutors to use such statements to prove the reason for authorities’ conduct, especially why they investigated the accused.
This is a particularly difficult problem, because a testimonial statement can be introduced for a legitimate purpose that the prosecution has, other than to prove the statement’s truth, and one cannot say that explaining officials’ conduct is utterly immaterial. So some degree of balancing tends to come in; if the prosecution’s need is flimsy, usually the court should recognize the very substantial probability that the jury will use the statement for its truth and so the statement should not be admitted. But courts tend not to do a good job of balancing when the confrontation right is at stake; the temptation to admit probative evidence is often too great, and that is one reason the categorical rule of Crawford was necessary.
Some courts get it, though. Eric Freedman, who has been keeping me informed for more than four decades, has called to my attention the fine opinion Judge Jerry Smith for a unanimous panel of the Fifth Circuit in United States v. Hamann, which is not only keenly aware of the problem but emphasizes a categorical rule that, if followed, would solve a good deal of it.
Hamann was charged with conspiracy to distribute meth. An investigator, Stanley, testified to a statement by a confidential source to the effect that “Cali,” understood to be Hamann, was “moving multiple ounces” of meth and to also to statements by local law enforcement that an unknown declarant had said Hamann “was selling narcotics.” Stanley also testified to details concerning a controlled purchase that was used to establish probable cause for a search warrant – but this testimony was second- or third-hand, because Stanley did not observe the transaction. The panel had little difficulty that Stanley was thus able to testify to out-of-court testimonial statements. The fact that he did not recount an “identifiable statement” concerning the controlled purchase did not matter, given that he described the purchase in detail despite not having observed it, making it inferrable what he purported to have been told. All good.
The more serious question was whether the statements were used for the truth of what they asserted. The panel noted that prosecutors often try to introduce evidence highly probative of guilt “[u]nder the guise of explaining why police began their investigation or conducted it a certain way.” But even if the evidence is relevant for this purpose, the panel said, quoting the court’s earlier decisions, the trial court must be “circumspect in its use”; the evidence would be deemed admitted for the truth of what it asserted if it “specifically links a defendant to the crime” or, put another way, “points directly at the defendant and his guilt.” Thus, “[t]he government must advance a specific reason why it needs to provide inculpatory ‘context’ for its investigation.” The defendant might open the door by challenging the adequacy of the investigation, but “[o]therwise, there is no reason why it cannot begin its account by explaining that it got a search warrant or that ‘a tip prompted’ it to begin investigating a suspect.”
Application of these principles here was straightforward. Hamann had never contended that the investigation was inadequate. And so the panel said, “We perceive no reason why the government could not have begun its case-in-chief by explaining that officers arrived at the motel to execute a search warrant and found Hamann and Davis together in the parking lot holding distributable amounts of meth.” The prosecution’s “inculpatory prequel” was far from circumspect, and highly prejudicial. Hamann hadn’t had an opportunity to cross-examine the confidential source or the non-testifying source (and neither was shown to be unavailable). So there was a clear Confrontation Clause violation, which the panel concluded was not harmless.
The panel made clear that it was simply reaffirming principles it had often stated, but the vigor with which it stated them is notable; it said that “ the government has repeatedly failed to take the lesson” and it “remind[ed] prosecutors to take note” – it could and probably should have have included trial courts in these statements. And the decision appears to state not only a stern and skeptical attitude but a very useful per se rule: If a testimonial statement specifically links an accused to a crime, and the accused does not challenge the adequacy of an investigation, then the statement may not be introduced on the basis that it explains the official conduct. That does not solve the whole problem, but it does take care of a good large part of it.