Friday, December 10, 2010
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Thus, if a statement is not testimonial, there is no problem with its admission under the Confrontation Clause.
Thus, in United States v. Diaz, 2010 WL 1767248 (11th Cir. 2010), the Eleventh Circuit found a co-conspirator admission admissible without regard for the Confrontation Clause because co-conspirator admissions are deemed nontestimonial, even if they are made to confidential informants. In its recent opinion in Wilson v. United States, 2010 WL 1790365 (D.C. 2010), the District of Columbia Court of Appeals found the same with regard to adoptive admissions, even if they are made by someone working with the government and wearing a wire.
FBI Agent Brad Garrett testified that during the investigation of decedent's death, one of [Bryan]'s friends, Tracy Thompson, told investigators that he had given [Bryan] a gun. Agent Garrett further testified that Thompson offered to allow agents to place video and audio recording equipment in his car and to engage appellant in a conversation that investigators could record. During a recorded conversation that took place on January 6, 2005, [Bryan] denied killing his wife but told Thompson that he had thrown the gun that Thompson had given him into the Patuxent River right after the police called him to inform him that his wife's body had been found....[T]he government relied on the videotape to prove that Thompson gave [Bryan] a gun a week before Inga Wilson's murder.
At trial, Thompson did not testify, prompting Bryan to appeal, claiming, inter alia, that the admission of the recorded conversation violated his rights under the Confrontation Clause. The District of Columbia Court of Appeals disagreed, initially noting that any admissions made by Bryan himself were admissible without regard for the Confrontation Clause and that some of Thompson's statements were not admitted to prove the truth of the matter asserted, meaning that they also presented no Confrontation Clause problem. The government, though, acknowledged that it had admitted other statements by Thompson at trial as adoptive admissions under Federal Rule of Evidence 801(d)(2)(B), i.e., as statements in which Bryan manifested an adoption or belief in their truth.
According to Bryan, the admission of these statements by Thompson thus violated his rights under the Confrontation Clause because Thompson's statements were "testimonial" in that they were made under circumstances which would lead a reasonable man to believe that his statement would be available for use at later trial. Now, the opinion of the District of Columbia's decision was somewhat complicated in that it explored the differences between federal and D.C. evidence law, but the heart of the court's opinion was this:
[T]he fact that Thompson made the statements while cooperating with the FBI in an effort to elicit and record incriminating statements by [Bryan] makes it much more difficult (if possible at all) to conclude that the statements...were non-testimonial. Our conclusion that the statements (together with [Bryant]'s responses) were not hearsay, but instead were [Bryant]'s own adoptive admissions, obviates the need for an analysis of whether the statements were testimonial.
In other words, according to the court, Thompson's statements were, in effect, Bryant's statements under the adoptive admissions rule, meaning that there was no Confrontation Clause problem because an accused can't claim that he lacks the ability to confront himself.