Tuesday, August 16, 2005

Crawford Rule Not Applicable to Out-of-Court Statements Not Offered at Trial for Their Truth

United States v. Andre O. Logan, Docket No. 03-1290 (2d Cir. August 15, 2005) (Op. by Cardamone): This opinion discusses some mildly interesting Confrontation Clause issues related to Crawford v. Washington, and also upholds the federal arson statute, 18 USC § 844, against a Commerce Clause challenge. It holds that (1) an out-of-court statement offered not for its truth need not satisfy the requirements of Crawford, which concerns only true hearsay (i.e., an out-of-court statement offered for the truth of the matter stated); and (2) § 844 does not violate the Commerce Clause when applied to the arson of a rented residence, in light of the Supreme Court's decision in Jones v. United States, 529 U.S. 848, 854 (2000) (explicitly re-affirming Russell v. United States, 471 U.s. 858, 859-60 & n.4 (1985) (holding that congressional power extends to regulation of rented residence)).

The essential facts are thus. Logan was indicted for conspiring with 2 fraternity brothers to burn down a rented residence. Shortly after the house burned down, Logan confessed his participation in the act to the police, though he denied knowing beforehand that the others wanted to commit arson when they broke into the house. Logan also told the police that, prior to the incident, his fellow participants had concocted an alibi that they would use after the house was burned down (a convoluted story about attending a Mets game that evening) in case of a police investigation. When the police later interviewed the 2 frat brothers, they told the alibi outlined by Logan. At Logan's trial (no others were indicted), the Government introduced the frat brothers' statements setting out the alibi to the police, apparently for the purpose of showing that they & Logan conspired to burn down the house. Logan was convicted.

The Circuit rejected Logan's claim that the introduction of the alibi statements violated his Confrontation Clause rights in light of Crawford. Indeed, Crawford itself explained that this "Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." 541 U.S. at 59 n.9. Here, the frat brothers' out-of-court statements "were not offered to prove that they had been at a Mets game on the night of the fire, but rather were offered to corroborate Logan's own statement . . . that [they] were planning to use the Mets game as an alibi." Op. at 11. There was, therefore, no Confrontation Clause violation.

A minor silver lining can be found in the opinion: The Circuit rejected the Government's alternative argument that Crawford was also not implicated because the statements in question were not "testimonial." Op. at 12. The Government claimed that the frat brothers' statements to the police were statements by co-conspirators in furtherance of the conspiracy, and that such statements are non-testimonial. There is support in Crawford for this proposition. 541 U.S. at 56 (noting that most hearsay exceptions "covered statements that by their nature were not testimonial -- for example, business records or statements in furtherance of a conspiracy.").

The Court agreed that the frat brothers' statements were made in furtherance of the conspiracy. However, it also found that they were "testimonial" within the meaning of Crawford. Op. at 13. As Crawford defined the term, testimonial statements "involve a declarant's knowing response to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings." Id. And since the frat brothers "made their false alibi statements in the course of a police interrogation, and thus reasonably should have expected that their statements might be used in future judicial proceedings," these statements constituted testimonial ones within the meaning of Crawford. Id. The take-away is thus that even statements that are usually not considered testimonial, e.g., statements by co-conspirators in furtherance of a conspiracy, can become testimonial ones potentially falling within Crawford's reach given the correct context.


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