Saturday, December 8, 2012
I was talking to Derek Black yesterday when he raised an interesting question: Can the admission of a declarant's lie ever violate the Confrontation Clause of the Sixth Amendment? My initial thought was that the answer had to be "no." First, the Confrontation Clause is only implicated by the admission of statements offered to prove the truth of the matter asserted, and a lie seemingly would not be offered to prove the truth of the matter asserted. Second, for a statement to be "testimonial" and thus trigger the Confrontation Clause, the declarant must have some expectation or awareness that "his or her statements may later be used at a trial." I'm not sure that a liar would ever have this expectation. That said, I'm not entirely sure about these conclusions, so let's look at the opinion of the Court of Appeals of Arizona, Division 1, Department C, in State v. Valdez, 2007 WL 5248976 (Ariz.App. Div. 1 2007), which dealt with a factual context similar to the context that Derek mentioned.
In Valdez, James Valdez was indicted in November 2005 on one count of burglary in the first degree and two counts of armed robbery arising from invasion of a house in the vicinity of 75th Avenue and Meadowbrook in Phoenix on June 9, 2005. A neighbor who observed the burglary called 911, prompting the police to pull over two vehicles, one of which contained Valdez. Three of the individuals in these vehicles, including Valdez, gave conflicting accounts of what they were doing, and each of these accounts was demonstrably false.
Before trial, Valdez sought to preclude the prosecution from introducing the statements of the other two individuals, claiming that the prosecution did not seek to call them at trial and that the admission of their statements would violate the Confrontation Clause. The court granted Valdez's motion, finding that
The Court does not find relevant the State's proffer of declarants' statements being false as providing a more or less probable [sic] that Mr. Valdez is guilty of the crime charged....
Separately, pursuant to 403, the Court finds that the State's proffer of presenting declarants' statements, disproving their truth, would lead to confusion of the issues for the jury.
Third ground, State is making an affirmative use of an out-of-court declarant, the Court finds would implicate Crawford.
The State thereafter appealed, claiming that
[O]ne of the inferences the jury can and ought to draw is when you have three people who are all in the same vehicle, all three of them, the defendant included, have had different stories than each other, and all three of them can be proven false, the rational inference is they are-are lying to cover up something, and then the rest of the evidence shows what it is they are covering up.
That's basically part of the reason why the State is going to be introducing those statements, to prove falsity and to show none of them had a rational explanation and, therefore, the only rational explanation that remains is the State's theory of the case.
The appellate court disagreed, concluding that
We find this argument unpersuasive on both logical and factual grounds. As the court suggested in its questioning of the State, evidence that a person (Hollingsworth) sitting in the same vehicle as Valdez, and another person (Mavis) sitting in a second vehicle believed to be connected to the first, told different lies as to their whereabouts that night, without more, has little or no tendency to show that Valdez lied to cover up the instant crime. Had Hollingsworth, Mavis, and Valdez all offered the identical false alibi, or had the State offered some evidence of collusion in concocting an alibi, the potential relevancy might be greater.... In the absence of more evidence in the State's proffer that would link the alleged accomplices' lies to Valdez's guilt, however, we cannot say that the court abused its discretion in precluding this evidence on grounds it lacked relevance.
Based upon this conclusion, the appellate court did not need to "reach the issue whether these statements would also be barred by the Confrontation Clause as interpreted by Crawford v. Washington, 541 U.S. 36 (2004)."
So, what if the three mean had offered the identical false alibi? In that case, would the court have found the statements relevant, and, if so, would the court have found that the Confrontation Clause precluded their admission?
It seems that the answer is "yes." Here are a smattering of statements by courts:
-"Giles's explanation for the money was not introduced for the truth of the matter asserted, but to show that he was lying. See United States v. Hathaway, 798 F.2d 902, 905 (6th Cir.1986) (statement offered to prove the falsity of the matter asserted not hearsay). Such statements are not hearsay and do not implicate the confrontation clause." United States v. Brown, 560 F.3d 754, 765 (8th Cir. 2009);
-"These statements were admitted to show, through subsequent testimony, that Grenier and Pierce were lying about their activities. They were not offered 'to prove the truth of the matter asserted.'" United States v. Munson, 819 F.2d 337, 340 (1st Cir. 1987);
-"The obvious question that arises in the present case, then, is whether the out-of-court statements of Tomblin and Browning were hearsay. We think it plain they were not. Out-of-court statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted. The election contest testimony of Tomblin and Browning, however, was not admitted into evidence in the s 241 trial to prove the truth of anything asserted therein. Quite the contrary, the point of the prosecutor's introducing those statements was simply to prove that the statements were made so as to establish a foundation for later showing, through other admissible evidence, that they were false. The rationale of the hearsay rule is inapplicable as well. The primary justification for the exclusion of hearsay is the lack of any opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is introduced into evidence. Here, since the prosecution was not contending that anything Tomblin or Browning said at the election contest was true, the other defendants had no interest in cross-examining them so as to put their credibility in issue." Anderson v. United States, 417 U.S. 211, 220 (1974).