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A new day

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Ronald Williams got convicted of aggravated robbery and some other stuff, and here's how the cops nabbed him:  they tracked down the van used in the robbery, which belonged to a flower shop, and one of the occupants told them that Williams had used it earlier in the day.  That led them to Williams, which led to a bunch of other evidence.  A cop was allowed to testify as to the occupant's identification of Williams as having driven the van earlier.  

Thomas Ricks got convicted of aggravated murder and some other stuff, and here's how the cops nabbed him:  they tracked down the guy they knew to be involved in the crime, and he fingered Ricks.  During the trial, the detective was allowed to testify how the co-defendant told him about Ricks, provided a description of him, and implicated him in the crime. 

There are few things more frustrating to a defense attorney than a trial judge who has an expansive view of the "course of investigation" exception to the hearsay rule.  It's not an exception, of course; it relies on the definition of hearsay:  an out-of-court statement offered for the truth of the matter asserted.  In the State's view, of course, what everybody told the cops isn't offered for its truth, but simply to explain why the officer went here, did that, and arrested whomever.

Williams and Ricks appealed, arguing that the testimony should have been excluded.  Both lost their appeals, and that's where it ended for Williams; the Supreme Court denied review.  The court accepted it in Ricks' case, and heard oral argument on the issue yesterday.  It looks like Ricks is going to have a much better outcome.  Timing is the key:  Williams' case was decided in 2003, a year before Crawford v. Washington. 

Strictly speaking, it shouldn't make any difference.  While Crawford did expand the Confrontation Clause, holding that a "testimonial statement" -- an out-of-court statement made to a government agent for the purpose of use at trial -- was inadmissible, even if it fell within a hearsay exception, testimonial statements similarly do not include statements not offered for truth.  It's just that Crawford elevated the appreciation for the confrontation right.

That was apparent in the questions of the justices.  Only O'Connor seemed even vaguely inclined toward the State's position, with Lanzinger and O'Neill openly skeptical of the idea that a co-defendant's saying "that's him" about the defendant could ever be admissible.  Even O'Donnell was having problems with the fact that it was identity testimony.   Pfeifer got to the heart of the issue -- why does "course of investigation" even matter?  -- then came up with his bi-monthly pithy observation, inveighing in his typical style  (imagine an interval of about five seconds between each word in the next sentence), "To allow otherwise inadmissible testimony because it's not offered for the truth of the matter... that just seems like a path to hell."

The court's not going to go that far, and it's not clear where it's going to wind up.  As might be expected given its strong Republican tilt in the past decade, this court is quite conservative.  It hasn't shown a disposition toward deciding things it doesn't have to decide, and so don't be surprised if it doesn't here, possibly ruling as narrowly as prohibiting the use of co-defendants' testimony regarding identity of the defendant as part of "course of investigation" testimony, and calling it a day.

It should be go beyond that.  Anyone with any familiarity with what goes on in criminal trials knows that the "in the course of investigation" routine is greatly abused; I'd wager that nearly as much inculpatory information comes in through that as through the other hearsay exceptions combined.  The 6th District had a great take on this a little over a year ago in State v. Richcreek, which I wrote about here.  (And click on the link and read it.  Richcreek is one of the best defense decisions on numerous facets of hearsay law that I've seen, and you should not go to trial without a copy of it.)  Here's how I summarized their treatment of the "course of investigation" argument.

Something isn't hearsay if it's not being offered for its truth, but that doesn't mean it's automatically admissible if it has a "dual use," that is, it relates directly to the crime. "If the statement's content could also cut toward proof of guilt, the potential for abuse is great." The opinion cites the 10th District's decision in State v. Blanton, that the statements must meet the EvidR 403(A) test (probative value outweighs prejudicial impact)" and that "when the [out-of-court] statements connect the accused with the crime charged, they should generally be excluded." That's huge. The opinion emphasizes the point: "the well-worn phrase, 'not offered for the truth of the matter asserted' is not a talismanic incantation that opens the door to everything said outside the courtroom."

Frankly, I think that's right on the money.

One other thing.  After Crawford came out, I wasn't as sold on it as a lot of other people who thought it was the greatest thing for the defense bar since Gideon.  Whatever its potential, a lot of it has been chipped away by subsequent decisions.  But if not for Crawford, Ricks' argument would have met the same fate as Williams'.


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