'I’m Going to Dinner with Frank': Admissibility of Nontestimonial Statements of Intent to Prove the Actions of Someone Other Than the Speaker – and the Role of the Due Process Clause as to Nontestimonial Hearsay

64 Pages Posted: 6 May 2010 Last revised: 7 Nov 2010

Lynn McLain

University of Baltimore - School of Law

Date Written: 2010

Abstract

A woman tells her roommate that she is going out to dinner with Frank that evening. The next morning her battered body is found along a country road outside of town. In Frank’s trial for her murder, is her statement to her roommate admissible to place Frank with her that night? Since the Court’s 2004 Crawford decision, the confrontation clause is inapplicable to nontestimonial hearsay such as this.

American jurisdictions are widely divided on the question of admissibility under their rules of evidence, however. Many say absolutely not. A sizeable number unequivocally say yes. A small number say yes, but condition admissibility on the proof of corroborating evidence that Frank met her. Although this third compromise approach has much to recommend it, the author argues that, as presently framed, it violates the rule adopted in the Supreme Court’s 1990 decision in Idaho v. Wright applying the confrontation clause.

The author makes several other novel arguments. First, she argues that Wright continues to apply to nontestimonial hearsay, but via the due process clause. Next she suggests that jurisdictions may constitutionally achieve the same result, however, in one of two ways: (1) they could codify the corroboration requirement in their definition of the applicable evidence rule, the state of mind hearsay exception; or (2) through their case law, they could admit the hearsay statement without requiring corroborating evidence, but invoke a corroboration requirement when evaluating the sufficiency of the evidence, for due process reasons, at the close of the case.

Keywords: State of Mind, Hearsay Exception, Homicide, Evidence, Trials, Rules of Evidence, Idaho v. Wright, Crawford Decision, Nontestimonial Hearsay

JEL Classification: K14, K41, K42, K49

Suggested Citation

McLain, Lynn, 'I’m Going to Dinner with Frank': Admissibility of Nontestimonial Statements of Intent to Prove the Actions of Someone Other Than the Speaker – and the Role of the Due Process Clause as to Nontestimonial Hearsay (2010). Cardozo Law Review, Vol. 32, No. 2, pp. 373-436, 2010; University of Baltimore School of Law Legal Studies Research Paper No. 2010-08. Available at SSRN: https://ssrn.com/abstract=1600755

Lynn McLain (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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