EvidenceProf Blog

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

Wednesday, August 10, 2011

The Informant!: Ohio Court Finds Confidential Informant's Statement Was a Nontestimonial Present Sense Impression

Like its federal counterpart, Ohio Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness.

So, let's say that a detective drives a confidential informant to a controlled drug buy. After leaving the undercover car, the informant approaches the co-defendant and engages him in conversation. The informant then returns to the detective and tells him that the co-defendant "had a gun." Is this statement a present sense impression under Rule 803(1)? According to the recent opinion of the Court of Appeals of Ohio, Eighth District in State v. Bulger, 2011 WL 3359861 (Ohio App. 8 Dist. 2011), the answer is "yes," and I agree. But is the statement "testimonial" for Confrontation Clause purposes?

In Bulger, the facts were as stated above. After the confidential reliable informant (CRI) told the detective about the gun, he informed

other units, and police immediately converged on the house. Detective Frank Woyma, one of the responding officers, observed [the co-defendant] quickly take a dark object from his waistband and hand it to another man, later identified as [the defendant]. [The defendant] then ran into the house as the officers approached. [The defendant] was apprehended on the first floor, and a gun was discovered in the basement. [The co-defendant] and [the defendant] were arrested....

Subsequently, the defendant was indicted for, inter alia, drug possession, drug trafficking, possession of criminal tools, having a weapon under disability, and tampering with evidence. At trial, the CRI did not testify, but the Detective testified that the CRI said that the co-defendant "had a gun." After he was convicted, the defendant appealed, first claiming that the CRI's statement was inadmissible hearsay. The Court of Appeals of Ohio, Eighth District, disagreed, concluding that it was a present sense impression because 

the CRI's statement "he had a gun" clearly constitutes a description of the event the CRI had just perceived. It is also apparent from the testimony of [the detective] that the CRI made the statement "while [he] was perceiving the event or condition, or immediately thereafter." Moreover, the short time-frame between when the CRI saw [the co-defendant] with the gun, and the moment he told [the detective] about the weapon indicates a level of trustworthiness that allows this statement to conform to Evid.R. 803(1). Therefore, the CRI's statement to [the detective] constitutes an exception to the hearsay rule.

I agree. But the defendant also claimed that the CRI's statement was "testimonial" and that its admission thus violated the Confrontation Clause. So, let's review the current Confrontation Clause framework and then see what the Court of Appeals of Ohio did:

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.  

In Michigan v. Bryant, the Court then tried to clarify the Davis dichotomy by basically holding that if, at the time of an interrogation there was no (longer) an ongoing emergency AND the primary purpose of the interrogation was to establish or prove past events potentially relevant to later criminal prosecution THEN statements made during that interrogation were testimonial. 

So, what did the Court of Appeals of Ohio do? Well, it curtly concluded that it had already addressed this issue when presented with the co-defendant's appeal of his convictions. And, it reached the same conclusion:

Based upon the circumstances thus presented, this court cannot find the trial court abused its discretion in admitting this testimony. The CRI could not have expected his statement to be used as evidence at trial, and the lack of time between the event and the CRI's statement indicates its trustworthiness....In accordance with this court's disposition on this same issue, we find the CRI's statement was not made in anticipation of trial and is, therefore, not testimonial in nature. Thus, there is no Crawford violation....

I think that the court's conclusion was probably correct, but I think that its reasoning was a bit misleading? Didn't the CRI "expect[] his statement to be used as evidence at trial?" Wasn't that the whole purpose of him taking part in the controlled buy? Now, I think that it is clear from the above facts that the primary purpose of the CRI's statement was to enable police assistance to meet an ongoing emergency, which would mean that the statement was not "testimonial" under Davis. But shouldn't the court simply have said this rather than saying that the CRI didn't expect his statement to be used as evidence?



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I handled the Bulger case on appeal, and was obviously handicapped by the prior decision in the co-defendant's case. I agree that the court's handling of the "anticipated use at trial" test was BS -- the guy's paid to tell things to the police, and he doesn't anticipate that the police are going to use what he tells them at trial? -- but I disagree that this falls within the "emergency" doctrine of Davis/Bryant. What's the emergency? The victim was in the police car, the gun wasn't being brandished, the police knew exactly where the suspect was. Unless you're willing to say that any statement that someone has a gun creates an "emergency," that statement shouldn't come in.

Posted by: Russ Bensing | Aug 11, 2011 10:16:22 AM


Thanks for the comment. I was more focused upon the reasoning used by the court, but, upon reflection, I think that you are correct that there is a strong argument that the statement was "testimonial" even under the primary purpose test (although Michigan v. Bryant complicates things). Is the case being appealed to the Supreme Court of Ohio?

Posted by: Colin Miller | Aug 11, 2011 2:21:39 PM

Probably won't be appealed. I argued Bryant (it came down after the briefs were filed), but the court in a footnote said that Bryant didn't apply because this wasn't an emergency situation, which raises a whole different issue: does Bryant apply only in situations where it could be claimed there was an emergency, or does it override the "objective anticipation" test, meaning that if there isn't an emergency at all, the statement's testimonial?

By the way, I do a blog, too, and for what it's worth, you can read about the oral argument in that case here: http://briefcase8.com/2011/08/10/whats-up-in-the-8th-crawford/

Posted by: Russ Bensing | Aug 15, 2011 4:34:37 AM

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