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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


Fordham University School of Law

Carrie Tendler


affiliation not provided to SSRN


Marquette Law Review, Forthcoming
Fordham Law Legal Studies Research Paper No. 1548516

Abstract:     
Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far overlooked.

Courts currently treat two categories of statements as nonhearsay that they should treat as hearsay requiring confrontation under Crawford. The first category is that of statements which the FRE does not define as hearsay because they are “not intended as an assertion” or “not offered for their intended assertions.” The common law treated those statements as hearsay at the founding because their probative value depends upon the credibility of the absent declarant. When those statements are testimonial, courts must require confrontation, contrary to current practice. Courts admit them because they conflate statements that are not hearsay under the FRE’s definition excluding unintended assertions with those that are not hearsay under either definition because the proponent has not offered them to prove any beliefs of the declarant, whether intentionally asserted or unintentionally revealed.

The second category that courts erroneously treat as nonhearsay is that of statements offered to explain investigators’ conduct although the defendant raised no issue about why they acted as they did. While the prosecution purportedly offers the statements to establish a nonhearsay inference, they are nonetheless irrelevant for that purpose. Courts who admit testimonial hearsay supposedly to justify investigatory steps about whose propriety there is no contest invite juries to misuse the evidence to buttress the prosecution’s case. Having been told that there is a permissible use for the proof, juries are certain to accept the judge’s unwitting invitation to violate the confrontation clause by confusing evidence available to investigators with that admissible at trial to prove the defendant’s guilt. Whether the jury uses the statements directly for their truth or indirectly to show a foundation for the investigators’ conclusion that the defendant is guilty, it violates Crawford by crediting the statements of absent declarants. When the defendant has not challenged the investigators’ actions in a way that makes the statements’ nonhearsay inference relevant rebuttal, there is no justification for admitting them.

The article makes two proposals to satisfy Crawford with a minimum of disruption. First, evidence rules should redefine hearsay according to the original definition at common law, which includes all out of court statements whose probative value implicates the declarant’s credibility. Changing the statutory rule will familiarize courts and counsel with the definition of hearsay that the Constitution requires them to apply when prosecutors offer out-of-court testimonial statements against criminal defendants. Different jurisdictions can then choose whether to adopt a hearsay exception for nonassertive conduct. It will apply to all hearsay besides hearsay offered against criminal defendants whose admissibility depends only upon whether it is testimonial.

Second, Courts should interpret Crawford to hold that admitting testimonial hearsay for its effect on investigators violates the confrontation clause unless the defendant first raises an issue about their conduct that renders the evidence’s nonhearsay inference relevant rebuttal. Most courts routinely admit such proof without even considering the likelihood of unconstitutional use. Although other courts sometimes balk, their balancing approach to whether admission violates the confrontation clause effectively assures that the practice will continue. They fail to find error at all unless some further error – such as misuse on summation – compounded it, effectively creating a per se rule of admissibility where courts should require exclusion.

Number of Pages in PDF File: 56

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Date posted: February 5, 2010 ; Last revised: July 7, 2010

Suggested Citation

Kainen, James L. and Tendler, Carrie, The Case for a Constitutional Definition of Hearsay: Requiring Confrontation of Testimonial, Nonassertive Conduct and Statements Admitted to Explain an Unchallenged Investigation. Marquette Law Review, Forthcoming; Fordham Law Legal Studies Research Paper No. 1548516. Available at SSRN: http://ssrn.com/abstract=1548516

Contact Information

James L. Kainen (Contact Author)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
Carrie Tendler
affiliation not provided to SSRN ( email )
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