Confrontation

If you follow Prof. Friedman's The Confrontation Blog, you will find his discussion of

People v. Washington – an excellent decision on statements not explicitly reported at trial, on when a statement is testimonial, and on the “explaining what the officer did” end run​

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 is a useful part of his post which can be used in other circumstances.

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, there is little or no need to present additional context, and the evidence is highly prejudicial.

I have seen and frequently litigate calling the MCIO agent, often a first witness to explain the context of the case. 

"Context testimony generally begins with a detailed recitation from the law enforcement agent about getting a call, what they had for breakfast, and what they did, who they spoke to, what was told to them, and what they did as a result of that.  In the process the agent testifies to hearsay, which brings up Confrontation issues, gives opinions, and wastes court time, which is a part of the Mil. R. Evid. 403 concerns."

"The issue has been addressed in the federal circuit courts under the Federal Rules of Evidence.  In Combest, NMCCA said:

We can locate no case law from the Court of Appeals for the Armed Forces or our own court controlling the question of whether AH's testimony was properly admitted under an effect-on-the listener theory. This question has, however, been addressed by other federal appellate courts and their treatment of the issue is instructive. See United States v. Cass, 127 F.3d 1218, 1223 (10th Cir. 1997); United States v. Reyes, 18 F.3d 65, 70 (2d Cir. 1994); United States v. Martin, 897 F.2d 1368, 1371 (6th Cir. 1990). The prosecutors in each of the aforementioned cases elicited testimony, over hearsay objections, that contained out of-court statements that heightened the culpability of the respective defendants. In each case, the Government argued that the statements were not being offered for their truth, but to elucidate the investigatory background, provide context for the jurors, and show why law enforcement took the steps it did."

See, United States v. Combest, NMCCA 201100158 (N. M. Ct. Crim. App., 16 August 2011)(unpub.). In addition to the Michigan case, see also, United States v. Hinson, 585 F.3d 1328 (10th Cir. 2009) cert. denied, 130 S. Ct. 1910, 176 L. Ed. 2d 367 (2010)3; United States v. Silva, 380 F.3d 1018 (7th Cir. 2004); United States v.. Arbolaez, 450 F.3d 1283 (11th Cir. 2006); United States v. Davis, 449 F.3d 842 (8th Cir. 2006); United States v. Benitez-Avila, 570 F.3d 364 (1st Cir. 2009) cert. denied 130 S. Ct. 429, 175 L. Ed. 2d 294 (2009).

The state argues that Alvarado's current condition was "background information," necessary to give the jury the setting of the case. The state asserts that, without this information, the jury would have had to make its decision in a void. This argument is feckless. It is the old "background" canard that has somehow grown up in this county over the years, and seems to fool many people. But there is no separate Hamilton County common law, and this intelligence-insulting argument exists nowhere else.
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State v. Gonzalez, 154 Ohio Ap..3d 9 (Oh.App. 2003).