The Support Staff
We’d be even more confused by the legal wrangling if we didn’t have the help of Intern Sean. A recent law school grad from the area, Sean found us in a serendipitous way, by trawling through wiki for unsolved murders one day. That took him to Robert’s page and then to wmrw.com.
The timing was good, we had just listed that we were looking for an intern to help get us through the trial. Sean has been a steady presence in Moultrie these past two weeks, and today he weighs in on the evidentiary balancing act that Judge Lynn Leibovitz is doing in this joint trial. “Mental gymnastics,” as she calls it. While studying for the bar this weekend, Sean turned his attention here:
We’ve been hearing a lot in court about the statements of the three defendants that the government will try to introduce as evidence, and about whether the prosecution wants them in “for truth” or “not for truth.” What’s the difference and why does this matter?
Generally, according to the rules of evidence, an out of court statement, if offered for truth – that is, to show that the content of the statement is true – is hearsay. Even if, say, the statement were made under oath under penalty of perjury before a grand jury, if it isn’t made on the witness stand in that trial, it’s hearsay if it’s offered for truth. And of course, the general rule is that hearsay is not admissible as evidence. Now, that general rule doesn’t mean that hearsay is always inadmissible, of course. There are a myriad of hearsay exceptions, describing circumstances under which hearsay can be admitted and when out of court statements are not hearsay.
Now, for the majority of the defendants’ statements, the prosecution doesn’t want them in for truth. For example, when the defendants are talking to police about an intruder going into the house, the prosecution wants the statements not to show that there actually was an intruder, but simply to show that Price, Ward, and Zaborsky actually did make those statements (and lied to the police in doing so). And so, these statements are being introduced “not for truth” and are not hearsay.
But the prosecution does want to introduce some of the statements for truth. Why? From what we’ve seen in court so far, they want to use the defendants’ statements that they were home when Robert was murdered to show that, well, they were home when Robert was murdered. Now, nobody seems to be seriously contesting this, at least from what we’ve seen so far, but “everybody basically knows this is true” is not actually evidence that something is true, and the prosecution needs to show through evidence that it is true. And so, the prosecution wants to find a way to get those statements in.
More on how they might do this after the jump.
So how can the prosecution get the defendants’ statements that they want in “for truth” in? Well, I am not a lawyer and this entire post is merely my personal speculation, not an expert, authoritative, professional, or legal opinion in any way, but here’s one possibility that seems to be playing out right now in Judge Leibovitz’s court.
The evidence rules say that “admissions of party opponents” are not hearsay. So, because they’re trying to get the defendants’ own statements in, the prosecution’s home free, right? Not quite. Although this is one trial, there are three cases – United States v. Joseph Price, United States v. Dylan Ward, and United States v. Victor Zaborsky. So Price is the party opponent of the prosecution in United States v. Joseph Price but not in United States v. Victor Zaborsky or United States v. Dylan Ward. And if Price said “we were in the house” then that statement can come in against Joe as an admission of a party opponent in his case, but it can’t come in against either Victor or Dylan in their cases. And so on for the rest of the defendants.
And there’s more. That the statements of each of the defendants potentially implicate all three of them (since “we were in the house” indicates all three were in the house, for example) but can only come in against one of them, the one who actually said the statement, presents further complications. The rules of evidence are one thing, but there’s also the confrontation clause, the rules of criminal procedure, and the thicket of cases that Judge Leibovitz has referenced.
The Sixth Amendment states that criminal defendants have the right “to be confronted with the witnesses against [them].” In Bruton v. United States, much like this case, a defendant, Bruton, was tried along with a co-defendant, Evans, and the prosecutors there attempted to admit statements made by Evans that implicated Bruton. The statements were, for the reasons discussed above, admitted as evidence against Evans but not Bruton and the trial judge told the jury to disregard the statements with regard to Bruton, who was convicted. But the Supreme Court said that the high risk that a jury would ignore the jury instructions made the admission of those statements against Bruton a violation of the confrontation clause, and reversed Bruton’s conviction. Redaction of the statements at issue, however, could potentially be an acceptable way of addressing this issue.
There’s also Crawford v. Washington, and Davis v. Washington, a pair of subsequent Supreme Court cases which say that the admission of “testimonial” hearsay without the defendant having had a chance for prior cross-examination is always a violation of the confrontation clause, and that the confrontation clause only applies to “testimonial” hearsay, respectively.
So, what does this all mean? On Friday, Judge Leibovitz mentioned Thomas v. United States, an opinion issued by the D.C. Court of Appeals (which is binding on her), as providing the current standard on these issues. The opinion also provides a good explanation of and a solid application of all these concepts. According to Thomas, whenever a defendant’s testimonial out-of-court statement implicates a co-defendant, it must be redacted if the prosecution wants to use it in a joint trial, even though it is admissible against the defendant who made the statement, thanks to Bruton.
On the other hand, if the statement is non-testimonial, thanks to Crawford and Davis, Bruton does not apply and neither does the confrontation clause. As for what is “testimonial” and what is “non-testimonial”? Thomas says that: [F]or a statement to be “testimonial,” it must be “‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact,'” [quoting Crawford] typically for use in the prosecution or investigation of a crime or under “circumstances objectively indicat[ing] that . . . the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” [quoting Davis] “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” [quoting Crawford] (alterations in quotations of Davis are in original of Thomas).
Judge Leibovitz has broken down the statements at issue into categories (for example, videotaped statements to police at VCB, statements to police at Swann Street, statements to civilians, etc.), likely due to the distinction between “testimonial” and “non-testimonial” statements. And from this, it certainly seems like many of the statements that Kirschner and company want to introduce, such as the defendants’ statements to the police both at VCB and on the scene, would be “testimonial.”
In addition to the confrontation clause, there’s still Carpenter v. United States, another opinion from the D.C. Court of Appeals referenced by Judge Leibovitz. Carpenter applies Rule 14 of the D.C. Superior Court Rules of Criminal Procedure, which governs situations where a joint trial may cause prejudice. The case states that even when the constitutional requirements under Bruton and the ensuing cases are met, judges must still evaluate whether there will be prejudice under Rule 14 (such as, for example, when non-testimonial hearsay inculpates a co-defendant).
There’s also the question of whether the government’s proposed redactions are an adequate remedy for the problem of the possibly inculpated co-defendants. Again, as Judge Leibovitz said, Thomas shines more light on this issue. Obvious alterations in the statements are not good enough (for example, if a statement by Price that “Victor, Dylan, and I were in the house” became “Redacted, Redacted, and I were in the house.”) On the other hand, statements with redactions can generally come in so long as they don’t “incriminate a non-declarant co-defendant on its face, either explicitly or by direct and obvious implication.” [Note: the person who made the statement that is hearsay is known as the declarant]. If the statement at issue really is as simple as “we were in the house”, switching the “we” to an “I” would seem, at least to me, to solve the problem. This guideline applies not only to the confrontation clause concerns, but also the the Rule 14 issues raised by Carpenter.
And there’s one final wrinkle. The cases cited seem to be premised on the high risk that a jury would not follow instructions to consider a statement against one defendant but to disregard the statement against a co-defendant. But as we all know, this is a bench trial, and Judge Leibovitz has declared (usually to the amused chuckles of those present) that she has confidence in her ability to follow her own instructions. Still, she has also said that she will not say that Thomas and Carpenter simply do not apply to bench trials, and that although unlikely, it is possible that she may make a mistake in applying her instructions regarding the evidence. But if nothing else, the fact that this is a bench trial and likelihood that Judge Leibovitz will follow her own instructions properly does seem to make it far more likely that the prosecution’s redactions will be considered sufficient.
The upshot of all this is the extensive discussions on the admissibility of these statements and the focus on redactions that we’ve seen so far, as well as the judge’s repeated insistence that the prosecution pin down precisely which statements they plan to introduce for truth. On Friday, AUSA Kirschner stated that a new filing will be forthcoming on Monday that will do just that, and on Tuesday, we’re expected to hear the testimony of Det. Brian Waid as well as some of the statements that the prosecution wants in for truth. It seems that we’re going to find out how this will all play out when we head back to Moultrie this week.
Ed. note: We’re still looking for full texts of the cases, copyright-free of course. If anyone has link, we’ll be happy to add or embed the docs.
-posted by Sean