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.

Arguments set for March 20 in Davis and Hammon

The Supreme Court has scheduled arguments in Davis v. Washington and Hammon v. Indiana for March 20 -- Davis first and Hammon immediately after.

By the way, my brief in Hammon is now posted on the blog in PDF form. Sorry for any inconvenience to those who couldn't open theother version.