Article Of Interest: Lynn McLain's '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

In the (in)famous opinion, Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892), the Supreme Court found that statements by a declarant of future intention were admissible not only to prove that the declarant followed through on his intention but also to prove the future actions of other persons. For instance, in Hillmon, the Court found no problem with the admission of a declarant's letters to his sister and fiancée stating that he intended to leave Wichita, Kansas, for Crooked Creek, Colorado, with the defendant. 

When the Federal Rules of Evidence were being drafted, however, this approach had fallen into a bit of disfavor. As eventually passed, Federal Rule of Evidence 803(3) provided an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

And, the Notes of the Committee on the Judiciary accompanying its passage indicated that

Rule 803(3) was approved in the form submitted by the Court to Congress. However, the Committee intends that the Rule be construed to limit the doctrine of Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 295-300 (1892), so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person.

You might think, then, that courts uniformly have found that parties cannot introduce statements under Federal Rule of Evidence 803(3) to prove the future acts of a other persons. As I have noted previously on this blog (see, e.g., here and here), however, there is actually a circuit split on the issue. Indeed, as Lynn McLain, a Professor of Law and the Dean Joseph Curtis Faculty Fellow at the University of Baltimore School of Law, notes in her recent article, '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, 32 Cardozo L. Rev. 373 (2010), there is actually a three-way circuit split.

Some courts, such as the 1st, 3rd, 4th, and 10th Circuits, follow the language of the Notes of the Committee on the Judiciary and per se preclude the admission of statements under Federal Rule of Evidence 803(3) to prove the future acts of a other persons. Conversely, the 9th Circuit, some federal district courts, and several state courts "freely admit[],...under the state of mind hearsay exception, statements of the declarant's intent, such as 'I'm going to dinner with Frank tonight,' to prove the nondeclarant's (here, Frank's) subsequent conduct." Finally,

State courts in New York and Ohio and the United States Court of Appeals for the Second Circuit, have explicitly stated that they will not approve the admission of statements like "I'm going to meet Angelo" to prove that the declarant met up with "Angelo," unless there is corroborating evidence of "Angelo's" actions.

Professor McLain's initial point is that this latter approach likely previously contravened the Supreme Court's pre-Crawford opinion, Idaho v. Wright, 497 U.S. 805 (1990). Before Crawford, Ohio v. Roberts, 448 U.S. 56 (1980), ruled the Confrontation Clause roost and held that held that held that the admission of a hearsay statement against a criminal defendant violates the Confrontation Clause unless (1) the hearsay declarant is "unavailable," and (2) the statement has adequate indicia of reliability in that it (a) falls within a firmly rooted hearsay exception or (b) bears particularized guarantees of trustworthiness. Meanwhile, in  Idaho v. Wright, the Court rejected the State's contention that evidence corroborating the truth of a hearsay statement may properly support a finding that the statement bears "particularized guarantees of trustworthiness." Instead, the Court held that "[t]o be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." Professor McLain thus concludes that 

pre-Crawford, the Wright majority's rationale clearly precluded, as a constitutional matter, the consideration of corroborating evidence with regard to the reliability of Rule 803(3) forward-looking statements of intent...offered against a nondeclarant accused; bootstrapping their admission in such a way would violate the Confrontation Clause under Ohio v. Roberts, as applied in Idaho v. Wright. 

Of course, in Crawford (and its progeny), the Court overruled Ohio v. Roberts and held (1) that the Confrontation Clause is only concerned with "testimonial" hearsay; and (2) that when "testimonial" hearsay is involved, "the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: Confrontation." So, where does that leave Ohio v. Roberts and Idaho v. Wright? According to Professor McLain, it leaves them intact with regard to "nontestimonial" hearsay, but with courts now determining whether nontestimonial hearsay has adequate indicia  of reliability under the Due Process Clause(s).

And, indeed, there is solid support for this conclusion. In his concurring opinion in Dutton v. Evans, 400 U.S. 74, 96-97 & n.4 (2010) (Harlan, J., concurring), Justice Harlan concluded that

The task [of examining the constitutionality of evidence rules] is far more appropriately performed under the aegis of the Fifth and Fourteenth Amendments' commands that federal and state trials, respectively, must be conducted in accordance with due process of law [than under the Confrontation Clause of the Sixth Amendment]. It is by this [due process] standard that I would test federal and state rules of evidence.

Reliance on the Due Process Clauses would also have the virtue of subjecting rules of evidence to constitutional scrutiny in civil and criminal trials alike. . . . [T]he Confrontation Clause, which applies only to criminal prosecutions, was never intended as a constitutional standard for testing rules of evidence.

Meanwhile, in their concurring opinion in White v. Illinois, 502 U.S. 346, 363-64 (1992) (Thomas, J., concurring in part and concurring in the judgment, joined by Scalia, J.), Justices Thomas and Scalia noted that

Reliability is more properly a due process concern. There is no reason to strain the text of the Confrontation Clause to provide criminal defendants with a protection that due process already provides them.

So, because statements admitted under Federal Rule of Evidence 803(3) are usually "nontestimonial," where does that leave us? Professor McLain gives us a few options. First, courts of course can continue to deem statements per se inadmissible under Federal Rule of Evidence 803(3) to prove the future acts of other persons without even getting into a constitutional analysis, with the problem being that such a construction "often excludes irreplaceable evidence...." Second, courts on the other end of the circuit split can continue to deem such statements admissible even in the absence of corroboration, with the problem being that this construction "could result in such statements, standing alone, being considered sufficient evidence of the nondeclarant's conduct." Third, courts such as the Second Circuit could continue to admit such statement subject to a corroboration requirement, but, as noted, such an approach likely runs afoul of Idaho v. Wright.

But according to Professor McLain, there is a better compromise approach:

[T]he Second Circuit's approach can be modified in one of either two ways so as to pass constitutional muster. First, a jurisdiction could choose to codify a requirement for corroborating evidence in its version of Rule 803(3). Justice Kennedy's dissenting opinion in Wright suggested that, despite the Court's ruling on the constitutional issue, a requirement of corroborating evidence might be added, as a matter of state law, to hearsay categories where a state so desired.

The other possibility is to resequence the corroboration requirement, through the case law, by re-working the Second Circuit's approach into two steps. This has the practical advantage of not requiring approval through the rulemaking or legislative process. Under this alternative, the trial court's first step would be to admit a Hillmon-type statement under Rule 803(3), regardless of whether there was corroborating evidence, and permit it to be used as proof of both the declarant's and nondeclarant's subsequent conduct, as long as it was made absent circumstances supporting a finding of insincerity. If the trial court finds that nontestimonial hearsay evidence facially fits under a firmly rooted hearsay exception--and it finds Rule 803(3) to be such an exception--under Roberts, it constitutionally may admit the evidence, even if the declarant is not available for cross-examination.

But, under this proposed approach, such statements standing alone would be insufficient evidence of the nondeclarant's conduct. Thus, at the close of the case, when the court reviews the sufficiency of the evidence to get to the trier of fact, the court would take the second step and consider the presence or absence of substantial corroborating evidence. If there is none, the party bearing the burden of persuasion of proving the nondeclarant's conduct would have judgment entered against it. Because the due process clause forbids basing a verdict on unreliable hearsay, the trial court would be obligated to enter a judgment of acquittal in a prosecution's case, or an appellate court would be obligated to reverse a guilty verdict that it found was clearly based on unreliable hearsay. Corroborating evidence may be considered when evaluating the reliability of admitted hearsay in a due process context.

I think that either of these are interesting approaches that I could see courts adopting in some form. Indeed, Professor McLain's first argument about adding a corroboration requirement to Federal Rule of Evidence 803(3) is actually the second such argument I have read in the past few months, with Professor Jeff Bellin advocating for a corroboration requirement to electronic present sense impressions under Federal Rule of Evidence 803(1) in his forthcoming article, Facebook, Twitter, and the Uncertain Future of Present Sense Impressions (more on that article later). And, I think it makes sense that both authors are making this argument because, as the Advisory Committee Note to Federal Rule of Evidence 803 makes clear,"Exception (3) is essentially a specialized application of Exception [paragraph] (1), presented separately to enhance its usefulness and accessibility."

I strongly recommend the article to readers and think that any day now the Court will finally speak with clarity about the relationship between the rule against hearsay and the Due Process Clause(s). I asked Professor McLain what led her to write the article, and she responded:

This article represents a convergence of 3 things I had been pondering for some time:

Hillmon/Pheaster/Alcalde of course pose wonderful issues that are fun to explore annually with students--and as a Special Reporter for the Maryland Rules Committee I presented Hillmon and its vagaries to the Committee and then to the Court of Appeals, emphasizing the hearsay dangers. MD went for a very conservative position, so I have often contemplated whether that was the wisest choice.

For years I have asked my students whether Idaho v. Wright precludes a position such as the Second Circuit's, and have wondered why I didn't see that argument made.

Then Crawford pulled the confrontation rug out from nontestimonial statements, causing a great stir as to what protection is left as to them -- and the earlier hints re: due process require an examination of just what that means.... The latest doff of the hat to due process was by Justice Sotomayor in fn. 13 in Michigan v. Bryant, and it will be interesting to see what the Court does with it when the right facts come before it.

-CM