Marquette Law Review Volume 93 Article 41 Issue 4 Summer 2010 The aC se for a Constitutional Definition of Hearsay: Requiring Confrontation of Testimonial Nonassertive Conduct and Statements Admitted to Explain an Unchallenged Investigation James L. Kainen Carrie A. Tendler Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation James L. Kainen and Carrie A. Tendler, The Case for a Constitutional Definition of Hearsay: Requiring Confrontation of Testimonial Nonassertive Conduct and Statements Admitted to Explain an Unchallenged Investigation, 93 Marq. L. Rev. 1415 (2010). Available at: http://scholarship.law.marquette.edu/mulr/vol93/iss4/41 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. THE CASE FOR A CONSTITUTIONAL DEFINITION OF HEARSAY: REQUIRING CONFRONTATION OF TESTIMONIAL, NONASSERTIVE CONDUCT AND STATEMENTS ADMITTED TO EXPLAIN AN UNCHALLENGED INVESTIGATION JAMES L. KAINEN* CARRIE A. TENDLER** I. INTRODUCTION......................................................................................... 1414 II. TESTIMONIAL, NONASSERTIVE CONDUCT .............................................. 1418 III. CONFRONTATION OF NONASSERTIVE CONDUCT AT THE FOUNDING .... 1437 IV. A PROPOSAL FOR INCORPORATING THE CONSTITUTIONAL DEFINITION OF HEARSAY .................................................................. 1445 V. PROTECTING THE CONFRONTATION RIGHT FROM EVISCERATION BY EVIDENCE JUSTIFYING INVESTIGATORS‘ BEHAVIOR ........................ 1448 VI. CONCLUSION ......................................................................................... 1466 I. INTRODUCTION In Crawford v. Washington,1 the Supreme Court remade the Confrontation Clause of the Sixth Amendment to exclude all testimonial hearsay statements made by a declarant whom the defendant had no opportunity to confront either before or during trial.2 The Court therefore rejected prior law holding that confrontation is unnecessary when a declarant‘s statement fits an established hearsay exception, or is otherwise shown to be reliable by * Brendan Moore Professor of Advocacy and Director of Trial Competitions, Fordham University School of Law. Thanks to participants in the Fordham Law School Faculty Colloquium, Bennett Capers, and especially George Thomas for comments on this Article. ** Associate, Kobre & Kim LLP and Adjunct Professor of Trial Advocacy, Fordham University School of Law. 1. 541 U.S. 36 (2004). 2. Id. at 51; see also Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009) (―In Crawford, after reviewing the [Confrontation] Clause‘s historical underpinnings,‖ the Court held that the Confrontation Clause ―guarantees a Defendant‘s right to confront those who bear testimony against him.‖). 2010] DEFINING HEARSAY 1415 particularized guarantees of trustworthiness.3 The Court reasoned that using the reliability of hearsay statements as a reason for dispensing with confrontation was incongruous with the Constitution‘s view that confrontation is required to assure the reliability of testimonial hearsay.4 Since Crawford, scholars have rightly paid much attention to the question of whether a hearsay statement is ―testimonial‖ and thus requires confrontation.5 However, they have paid virtually no attention to whether a statement is hearsay in the first place. Although less frequently dispositive, that question is nonetheless important because only out-of-court statements that are hearsay trigger the right to confrontation.6 Statements offered for the truth of the matter asserted require a judgment about a declarant‘s credibility, and it is this need for a credibility determination that triggers the defendant‘s confrontation right.7 Statements offered only for the fact that they were said, and not offered for their truth, do not require confrontation because the credibility of the speaker has no bearing on the probative value of the evidence.8 This Article argues that courts violate the Confrontation Clause by misusing the non-hearsay rubric to admit, without confrontation, two categories of testimonial statements. The first consists of nonassertive conduct, which, although exempt from the Federal Rules of Evidence‘s (Federal Rules) definition of hearsay, is hearsay under the common law definition that was in use when the Confrontation Clause was adopted. Under the historical approach to confrontation, required by the Court‘s opinion in Crawford, such conduct, when testimonial, requires confrontation. Nonetheless, courts routinely admit testimonial, nonassertive conduct without 3. Ohio v. Roberts, 448 U.S. 56 (1980). ―Roberts conditioned the admissibility of all hearsay evidence on whether it falls under a ‗firmly rooted hearsay exception‘ or bears ‗particularized guarantees of trustworthiness.‘‖ Crawford, 541 U.S. at 60 (quoting Roberts, 448 U.S. at 66). The Supreme Court overruled Roberts in Crawford by ―restoring the unavailability and cross-examination requirements.‖ Davis v. Washington, 547 U.S. 813, 825 n.4 (2006); see also Melendez-Diaz, 129 S. Ct. at 2536 (rejecting the argument that the Confrontation Clause excludes hearsay that is the product of neutral, scientific testing as ―little more than an invitation to return to our overruled decision in Roberts, which held that evidence with ‗particularized guarantees of trustworthiness‘ was admissible notwithstanding the Confrontation Clause‖) (citation omitted). 4. Crawford, 541 U.S. at 61–62 (―Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.‖). 5. See, e.g., Melendez-Diaz, 129 S. Ct. at 2530; Davis, 547 U.S. at 817. 6. Crawford, 541 U.S. at 60 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)) (―The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.‖). 7. Street, 471 U.S. at 414 (the confrontation right depends upon the need for cross-examination to challenge credibility). 8. Id. 1416 MARQUETTE LAW REVIEW [93:1415 confrontation by erroneously equating it with non-hearsay evidence that does not implicate a declarant‘s credibility. In fact, such evidence implicates the declarant‘s credibility, as the common law well understood. Consequently, although nonassertive conduct is exempt from hearsay under a revised definition, nonassertive conduct is no different from evidence that was inadmissible hearsay at the Founding. Its admissibility without confrontation depends exclusively upon whether it is testimonial, not whether it is admissible under modern hearsay policy. The second category consists of testimonial statements admitted as non- hearsay background evidence to explain the investigators‘ actions, even though the defendant has not questioned the investigators‘ behavior. Courts routinely admit those statements for their ―effect on the listener‖ to explain the course of the investigation. They hold that such statements raise no Confrontation Clause issue because they are not admitted for their truth. Nonetheless, the statements‘ admission for that purpose erroneously assumes that the reasons for the investigators‘ actions are relevant absent the defendant‘s challenge. If courts admit the statements when there is no charge of investigative misconduct to rebut, the jury has to use them for their truth, in violation of the defendant‘s confrontation right, if it considers them at all. Regardless of whether the jury uses the statements directly as proof of what they assert or indirectly as a basis for concluding that information available to investigators supports the prosecution‘s claim of the defendant‘s guilt, the jury uses the evidence for a substantive purpose, which requires confrontation. Only when testimonial statements made to investigators are necessary to rebut an express or implied charge that the investigators acted improperly can courts justify their admission to explain the investigators‘ behavior as a non- hearsay purpose that does not require confrontation. Consequently, Crawford requires a constitutionally mandated definition of hearsay that reflects the full scope of the confrontation right. This definition must trump the federal and state definitions that narrow the scope of hearsay to reflect modern policy and require confrontation of testimonial, nonassertive conduct. Also, this definition must trump judicial applications of the hearsay rule admitting testimonial statements as non-hearsay unless they are clearly relevant to a legitimate non-hearsay purpose. This means excluding testimonial statements as background evidence offered to justify investigators‘ conduct unless the defendant first questions it. Part II explains the difference between declarant-centered and assertion- centered definitions of hearsay and shows that the Federal Rules‘ assertion- centered definition does not comport with the Supreme Court‘s view that the Constitution excuses confrontation only when admission of a declarant‘s statement does not implicate his credibility. It argues that courts in post- Crawford cases have missed this lack of parallelism because they conflate 2010] DEFINING HEARSAY 1417 statements offered to show the truth of what the declarant believes, although