EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, May 29, 2011

Conspiracy Theory: Should Courts Find Co-Conspirator Admissions To Confidential Informants Per Se Nontestimonial?

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that 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. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial."

The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, finding that 

Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 

Meanwhile, Federal Rule of Evidence 801(d)(2)(E) provides that 

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

The conventional wisdom among courts in the wake of Crawford is that co-conspirator admissions made to confidential informants/undercover agents are "nontestimonial" and thus present no problems under the Confrontation Clause. But does such a categorical conclusion make sense? Let's take a look at the recent opinion of the United States District Court for the Central District of California in Le v. Dexter, 2011 WL 1842887 (C.D. Cal. 2011), to see.

In Dexter, Johnson Le was convicted of second degree murder, with the jury finding true the allegation that the offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang. After he was convicted and unsuccessfully appealed in the California state court system, Le filed a petition for a writ of habeas corpus with the United States District Court for the Central District of California, claiming, inter alia, that the trial court improperly allowed for the admission of co-conspirator admissions against him in contravention of the Confrontation Clause.

These admissions were introduced through the testimony of two informants:

•Sam Yu testified that he was a member of the same gang as Le and Le's co-defendants before becoming an FBI informant. While working as an informant, he tape recorded conversations withe each of the three defendants. These conversations addressed not only planned future crimes by the gang but also the past murder which led to Le's conviction. Specifically, Yu got one of Le's co-defendants to describe in great detail how the three defendants killed the victim.

•Andy Tran also testified that he was a gang member/FBI informant. He did not tape record conversations with the three defendants, but he relayed the details of various conversations with Le's two co-defendants. Specifically, he repeated statements made by Le's two co-defendants regarding his exact role in the subject murder.

In addressing Le's argument, the Central District of California found that the co-defendants' statements constituted co-conspirator admissions and concluded that there was no Confrontation Clause despite the fact that these co-defendants did not testify. Why? The answer can be found in Bourjaily v. United States, 483 U.S. 171 (1987). In Bourjaily, an FBI informant arranged to sell cocaine to Angelo Lonardo, who agreed to find someone to distribute the drug. The person whom Lonardo found was Bourjaily, and Lonardo's conversations with the informant were later admitted over Bourjaily's Confrontation Clause objection. In Crawford, the Court cited Bourjaily as one of its cases consistent with the principle that nontestimonial statements present no Confrontation Clause problems, and courts, including the Central District of California in Dexter, have used this language to conclude that co-conspirator admissions to confidential informants/undercover agents are "nontestimonial."

But are they correct? According to Michael L. Seigel & Daniel Weisman, The Admissibility of Co-Conspirator Statements in a Post-Crawford World, 34 Fla. St. U. L. Rev. 877 (2007), the answer is "not always." Seigel and Weisman engage in a close reading of Crawford and Davis, which leads them

to advocate a nuanced rule for the admission of co-conspirator statements under the Confrontation Clause. First, all operational statements, and those aimed at future events, should be admissible-they are akin to requests for emergency assistance. Second, casual remarks by conspirators should also be admissible, due to Crawford's specific exclusion of "casual remark[s] to an acquaintance" from the reach of the Confrontation Clause. Even isolated answers to occasional questions asked by an undercover agent or witness about the identity of conspirators or past events should not be excluded. But when sustained questioning of one or more co-conspirators amounts to an interrogation objectively designed to gather evidence about past events, any statements given in response should be classified as testimonial, and thus their admission should be barred by the Confrontation Clause. This test is not perfectly neat and clean, but it is faithful to the Supreme Court's recent jurisprudence and to the Confrontation Clause itself.

Readers should check out the full article for the authors' complete analysis, but their basic point is that the co-conspirator's ignorance of the informant's status is not dispositive under the Confrontation Clause. Instead, (1) Davis made clear that the Confrontation Clause test is objective and "that the subjective intention of neither the interrogator nor the declarant controls whether the resulting statement is testimonial;" and (2) while solemnity is an important factor in determining whether a statements is testimonial, "when one conspirator briefs another about facts pertinent to the success of the conspiracy, it is a solemn event because the consequences of lying are likely to be quite dramatic-perhaps even death, if the conspiracy enforces internal norms in a violent manner."

Thus, in Bourjaily, Lonardo's statements were not testimonial because (1) his statements were clearly operative, all relating to a future transaction and not past criminal conduct, and (2) his statements were not the result of sustained questioning by the informant. Conversely, in Dexter, the co-defendant's statements related in part to past criminal conduct, and their statements seemed to be the result of sustained questioning although we probably need more facts. Thus, they were at least arguably testimonial. And, according to the authors, the reason why we should care is that "determining that co-conspirator statements made to undercover agents can be testimonial avoids giving law enforcement the perverse motive to obtain as much information as possible through undercover means to avoid the constraints of the Sixth Amendment."

I think that this analysis is pretty fascinating, and, if anything, it has only been bolstered by the Supreme Court's recent opinion in Michigan v. Bryant. As I have noted, in Bryant, the Supreme Court reaffirmed that the Confrontation is objective and focuses upon " "the statements and actions of both the declarant and interrogators...."



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The analysis may be fascinating, but it demands too fine an analysis, I fear, for the courts to apply in any consistent manner. Bryant opened the door to future Roberts-like, inconsistent, hair-splitting decisions which will create nothing more than Roberts-like uncertainty. I'm for leaving the co-conspirator "exception" to what's testimonial alone. Let's have at least one solid bright line rule, even if law professors can invent all sorts of reasonable arguments for Roberts-like treatement.

Fred Moss

Posted by: Fred Moss | Jun 2, 2011 10:16:23 AM

What would be the point of the additional nuance? I take it that Siegel and Weissman want to cut back on the admission of statements to undercover agents or informants. I don't think this is an appropriate goal of evidence law, as a general matter, since the basic point of evidence law is to put reliable evidence in front of a jury and let them figure out guilt or innocence. Surreptitious recordings by an informant are as reliable as wiretap recordings. This type of evidence is one of the most reliable types of evidence available to a jury, a point that gets an "amen" every time a defense attorney rails in closing argument against the absence of wiretaps or recordings against her client.

If you agree with the fundamental goal of suppressing reliable evidence because you don't like an investigative technique, further muddying of the Confrontation Clause law is not the way to go about accomplishing your goal. You should do this forthrightly, not through the hit-or-miss device of adding another unworkable gee-gaw to Crawford.

Under Crawford and Davis, it is clear that this type of surreptitiously recorded statement is nothing at all like the trial by affidavit that is at the core of the Confrontation Clause. As for Bryant, the majority was consciously pushing back against the minority's overly expansive definition of "testimonial," which was predicated in large part on the presence of law enforcement. Bryant held that even though a victim was answering police questions, the primary purpose of a reasonable person in the victim's position would not have been to preserve testimony for later use in a criminal proceeding, but to respond to the immediate emergency. Hence, said Bryant, the statement was not testimonial.

If the statement in Bryant, consciously made in response to police interrogation, is not "testimonial," why should statements made without any consciousness of police involvement be "testimonial?"

The nuance is practically unworkable. At exactly what point would we draw a line and say that the declarant's responses have become "testimonial?" No easy answer leaps to mind. Do we number the questions? Time the questions? Calculate the insistence of the informant's questions? Listen for the timber of the questioner's voice?

The nuance posed by Siegel and Weissman is even further removed from the core concerns of the Confrontation Clause than were the facts in Bryant. The nuance doesn't serve the basic purposes of evidence law, doesn't serve the core purposes of the Confrontation Clause, is puzzling policy, at best, and is practically unworkable.

Posted by: Richard Lloret | Jun 3, 2011 11:16:47 AM

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