A useful opinion on statements not reported explicitly at trial

On the first of this month, the Michigan Court of Appeals issued a useful decision, People v. Washington, concerning the situation in which a prosecution witness does not explicitly report the content of an out-of-court testimonial statement but nevertheless conveys its substance.  A 2-1 majority of the panel properly held that such testimony violates the Confrontation Clause. (I didn't want to post on the case when it first came out, because I used it for a series of exam questions.)  And I'm glad to say that the brief for Washington was drafted by two students in the University of Michigan Law School's Criminal Appellate Advocacy clinic, Greg Momjian and Erica Arensman, under the supervision of Doug Baker; it was argued by Kierston Nunn.

The defendant, Washington, was convicted of possession or use of body armor by a person who had previously been convicted of a violent felony.  A toll-both operator on the Canadian side of the Blue Water Bridge, which connects Port Huron, Michigan, and Sarnia, Ontario, testified that she had seen a Ford pickup truck blow through her lane, following close on another car.  She immediately notified her supervisor, and several officers gave chase.    

Paul Stockwell, a supervisory officer with U.S. Customs and Border Protection, testified that on the American side of the bridge he met Matt Lavers, one of a crew of Canadian officers, and that they had Washington in a cruiser.  Neither Lavers nor any other member of the crew testified at trial.  Stockwell's testimony included this exchange:

[The Prosecutor]: At some point did Officer Lavers from the Canadian services hand you any other evidence?

Officer Stockwell: Yes, he did.

[The Prosecutor]: What did he hand you?

* * *

Officer Stockwell: A body armor.

* * *

[The Prosecutor]: Now, without saying anything about what was said, the only question I have for you is were there communications between you and Officer Lavers?

Officer Stockwell: There were.

[The Prosecutor]: Okay. And ․ based on those communications you took custody of [defendant]?

Officer Stockwell: Yes, we did.

[The Prosecutor]: And you took possession of the body armor that was turned over at the same time?

Officer Stockwell: Yes, sir.

The testimony took that form because, in response to an in limine motion to exclude evidence of the armor (a bulletproof vest) the trial court had ruled that Stockwell could testify as to what was turned over to him so long as he did not testify as to what was said.  Washington was convicted and appealed.  The court of appeals, in an opinion by Judge Elizabeth Gleicher (Judge Sima Patel concurring), reversed.

First, and most significantly, note that no statement by Lavers was actually introduced.  But, the majority pointed out, there would have been a clear violation of the Confrontation Clause had the prosecution asked Stockwell, "What did Officer Lavers tell you about the body armor?" And, the court noted, Stockwell's actual testimony "conveyed precisely the same information: that Washington had been wearing the body armor when caught by the Canadian authorities."

This has to be right, I think: What would otherwise be a Confrontation Clause violation cannot be excused by the fact that the in-court witness does not purport to report the actual statement made, if the effect of the testimony is to convey the substance of that statement to the trier of fact.  It seems plainly obvious that it cannot be that the Confrontation Clause is violated only when the in-court witness purports to be repeating the statement verbatim; if that were true, the Clause would be rendered a virtual nullity with respect to unrecorded oral statements, because the in-court witness would not usually remember the statement verbatim anyway.  And similarly it cannot be that the Clause can be evaded by asking the in-court witness, "Please summarize in your own words what [the absent witness] said."  Now in Washington, and in similar cases, the prosecution did not explicitly ask the in-court witness to communicate the substance of what the out-of-court witness said.  But in some circumstances, as in Washington, that is, as the majority said, precisely the effect of a series of questions that leads to an inference as to what was said.  Here, the prosecutor asked Stockwell whether Lavers made a statement and what Stockwell did as a result.  What could the jury infer in the circumstances but that Lavers said he had found Washington wearing the vest?  Indeed, if that were not the inference to be drawn then the case should never have gone to the jury, because there was not other evidence that would support the inference that Washington was found wearing the vest.

Judge Jane Markey, in dissent, argued that implied assertions are not hearsay and should not be deemed to create a confrontation problem.  It seems to me that this is a rather clear category error.  What are commonly called implied assertions (and perhaps should more accurately be called inferred assertions) are a type of conduct that is not intended to assert the proposition at issue but that indicates the actor's belief in the truth of that proposition.  So, most notably, in the famous case of Wright v. Tatham (H.L. 1838), letters written to the decedent Marsden assertedly indicated the writers' belief that Marsden was of sound mind, but none of the letters asserted that proposition.  The Wright majority deemed these to be hearsay, but under modern law, they would not be (see FRE 801(a) ("intended . . . as an assertion").  And there would not be a confrontation problem. (Notice that conduct of this sort is almost inevitably not testimonial; witnesses who testify intend to make assertions.)  But this is an altogether different matter from what is at stake in the Washington case and others like it:  In Wright-type cases, the out-of-court actor did not assert the proposition at issue, and the evidence of the actor's conduct is thought to imply his or her belief in the proposition.  In Washington-type cases, the out-of-court witness presumably did assert the proposition at issue ("Washington was wearing this vest"), and that fact is inferred from the evidence actually presented at court.  These are altogether different situations.

Judge Markey raised other issues, standard ones in confrontation cases, but I don't think either has merit, and both were rejected by the majority.  First, she contended that the evidence of Lavers's communication to Stockwell was not offered for the truth of the presumed assertion but rather only to explain why Stockwell took Washington into custody.  This is the "why the officer did that" end run that prosecutors often offer and on which I have commented before.  In most cases, including this one, there is no reason why the jury needs to know that.  And besides, as the majority pointed out, "Stockwell took Washington into custody because Washington was in possession of body armor." 

Second, Judge Markey contended that the presumed statement of Lavers was not testimonial because "the purpose of the communication was simply to provide Officer Stockwell with the information necessary for Officer Stockwell to formally take defendant into custody from Canadian authorities and proceed with the charging process under Michigan law."  But, as the majority said, "The 'explanation' for Stockwell's conduct is relevant only because it inculpated Washington." Under a proper view of what is testimonial – I am tempted to say under any reasonable view – if one officer passes on information to another on the understanding that the other will use the information in prosecution of a crime, and presumably will transmit the first officer's report of that information to the trier of fact, that conduct is testimonial.  If not, we have created a system in which a witness can testify by passing information to an officer, without even an intention that the witness will show up at trial.  That's a clear violation of the confrontation right.