Making the Informant Show Up or Shut Up: Confrontation Issues in Federal Court
I recently served as counsel in a Sixth Circuit case where our main issue concerned a violation of my client's confrontation rights by an investigator being allowed to testify (over objection) as to the out-of-court statements of two informants'. This is an obstacle that we frequently encounter in federal and state court. It allows the prosecutor additional evidence that we can't confront or really contradict. This article is my attempt to shed additional light on this troublesome issue.
The U.S Supreme Court in 2004 stated that ..."where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1374,158 L.Ed. 2d 177 (2004). The court held that "testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id at 1369. While that decision did not define what constituted a testimonial statement, it indicated that it "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id at 1374 (emphasis added).
The rule in Crawford has been applied to cases involving the out-of-court statements of an informant. See United States v. Cromer, 389 F3d 662, 671 (6th Cir. 2004). In that decision, the Sixth Circuit Court held that "statements of a confidential informant are testimonial in nature and therefore may not be offered by the government to establish the guilt of an accused absent an opportunity for the accused to cross-examine the informant." Cromer at 670-671. In deciding whether such a statement was testimonial, the Court emphasized that, "an accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Cromer, at 672. The court said the proper inquiry in deciding whether a statement is testimonial for evidentiary purposes is "whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime." Cromer, at 675(Emphasis added). Following this rationale, the Sixth Circuit has held that the introduction of hearsay statements by an agent of what another agent told him that placed the defendant at the scene of a known drug stash house was testimonial and a confrontation violation since the declarant was unavailable and the suspect had not had a prior opportunity to cross-examine. See U.S. v. Ramirez, 133 Fed. App. 196, Lexis 8411 (6th Cir. 2005). A detective's testimony about a non-testifying witness who positively identified the defendant in a video as one of the bank robbers was a confrontation violation and was testimonial even thought the defendant may have opened the door to it's admission into evidence. See United States v. Pugh, 405 F.3d 390 (6th Cir. 2005).
The second prong of the Crawford analysis requires a determination of whether the statement was offered for the truth of the matter asserted. Pugh at 399-400.The admission of a testimonial statement by itself isn't a violation of the Confrontation Clause. In addition, the statement must be used as hearsay, it must be offered for the truth of the matter asserted. See Cromer at 676. "The Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Cromer at 676. If the out-of-court statements served the purpose of explaining how certain events came to pass or why the officers took the actions they did, it is possible that such statements were not offered to establish the truth of the matter asserted. See Cromer at 676. So in considering statements, the court must decide whether the informant's statement is testimonial and also whether they were offered as hearsay. This is the most common way that most prosecutors try to explain away any confrontation concern. They claim that it isn't for the truth of the matter but to show why the officer commenced the investigation.
In additional, an informant's statements should not be admitted simply because the district court deemed them reliable. To allow such evidence simply because it was found reliable was found by the Sixth Circuit to be fundamentally at odds with the right of confrontation. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes." Crawford at 1370-71. In discussing the use of such statements, the Sixth Circuit said in Cromer: ...The danger to a defendant might well be greater if the statement introduced at trial, without a right of confrontation, is a statement volunteered to police rather than a statement elicited through formalized police interrogation. One can imagine the temptation that someone who bears a grudge might have to volunteer to police, truthfully or not, information of the commission of a crime, especially when that person is assured he will not be subject to confrontation.
Statements of a confidential informant are testimonial. ...A statement made knowingly to the authorities that describes criminal activity is almost always testimonial. ...Tips provided by confidential informants are knowingly and purposely made to authorities, accuse someone of a crime, and often are used against the accused at trial. The very fact that the informant is confidential-i.e., that not even his identity is disclosed to the defendant heightens the dangers involved in allowing a declarant to bear testimony without confrontation. The allowance of anonymous accusations of crime without any opportunity for cross-examination would make a mockery of the Confrontation Clause. ..."This court has warned against the potential for abuse when police testify to the out-of-court statements of a confidential informant." Cromer at 675 (Emphasis added).
In Cromer, the court found a Confrontation and hearsay violation where the out-of-court statements implicated the defendant as the perpetrator of the crime and went to the very heart of the prosecutor's case. Cromer at 676.
Be aware that just because there is a violation of the Confrontation Clause, it is still subject to harmless error review and the reviewing court must find that "it was more probable than not that the error materially affected the verdict." United States v. Trujillo, 376 F.3d 593, 611 (6th Cir. 2004). So, if there is ample proof against your client beyond the statement, you probably won't be getting any relief from the reviewing court.
In my case, two investigators testified about the out-of-court statements of two informants' that my client was in possession of large amounts of ecstasy pills and marijuana that he intended to sell at a rave party in Nashville. The prosecutor attempted to explain away any confrontation concern by saying the testimony wasn't for the truth of the matter asserted but only to show why the investigators stopped my client's car. The prosecutor even mentioned the statements during her closing argument. My client was blessed with excellent trial counsel who preserved the issue by filing a pre-trial motion on this issue, a motion in limine as to the statements prior to proof to the government, and objected at every mention of the statements by the two investigators and the prosecutor. The district court allowed the admission of the statements for the reasons advanced by the prosecutor but gave the jury a limiting instruction telling them that it wasn't for the truth of the matter but to show why the investigators started the surveillance. On appeal, my job was to show that the statements were testimonial hearsay that was offered for the truth of the matter asserted. In addition, I had to show that it constituted plain error. We were fortunate and the Sixth Circuit sustained our argument that my client's confrontation rights were violated. We were granted a new trial. See United States v. Hearn, 2007 U.S. App. LEXIS 21703 (6th Cir. 2007).
Obviously we need to utilize our discovery material, affidavits for search warrants, state court transcripts, and pre-trial hearings to find out about the statements of informants. In addition, we can also make pre-trial motions and be prepared to make verbal objections during trial to guard against a violation of our client's very important right to be confronted by his or her accusers. So let's either force the informant to show up or shut up.
Mr. Taylor is partner at the law firm at Spragins, Barnett & Cobb in Jackson, TN.
He is a certified criminal trial specialist. He is a former TACDL board member.
He can be reached at (731) 424-0461 or firstname.lastname@example.org