In a home as nicely appointed as 1509 Swann Street was in August 2006, that also housed three fastidious gay men upstairs, it wouldn’t be surprising if the residents were also acolytes of America’s domestic doyenne Martha Stewart.
While this may just be a generalization, or gross stereotype, we are now learning courtesy of commenter chilaw79’s excellent analysis that it isn’t just Martha’s ability to tie a nice bow that might be impacting the 1509 Swann Street residents, but rather how the ruling in her own obstruction of justice case as it applies to the admissibility of hearsay evidence and how it will come into play in their own obstruction case.
How so? More after the jump.
To help us all get smart on the issues surrounding the hearsay admissibility as it applies to the Confrontation Clause of the U.S. Constitution, we thought we would rerun chilaw79’s insightful analysis, so that everyone can get on the same lavender-scented page.
Prefacing what follows with the caveat that I am not a criminal lawyer, I read the Crawford case and some of its progeny, including the Second Circuit Court of Appeals decision in the case involving the obstruction of justice conviction of Martha Stewart. Other lawyers are free to chime in, since this is just my interpretation of an area in which I am not an expert.
This case involves the hearsay rule and the exceptions to the hearsay rule. The hearsay rule precludes the use of an out-of-court statement to establish the truth of the matter asserted. There are a wide variety of exceptions to the hearsay rule, such as dying declarations, statements against penal interest, and excited utterances. For various reasons, the circumstances of these statements have been viewed for a long time as bearing the marks of truth. For example, if Robert Wone had still been alive in the ambulance and told an EMT “Michael Price stabbed me,” and then died, the statement would be admitted as an exception to the hearsay rule for the truth of the matter asserted.
Many of the statements made by the defendants, including their videotaped interrogations and the 911 call, could be viewed as hearsay statements since they are out-of-court statements if offered for the truth of the matter asserted. In that case, a decision needs to be made whether an exception to the hearsay rule applies.
For many years, materials such as 911 calls and videotaped interrogations were admitted as evidence, especially in cases where the prosecutor might not want to subject a witness to in-court testimony, such as cases involving violence to children or sexual assaults. These cases involve a Constitutional issue regarding the Confrontation Clause. The Constitution says that a person charged with a crime has a right to confront his accuser. This issue was addressed in the Crawford case, a Supreme Court decision by Justice Scalia.
In the case, the defendant stabbed a man. Both the defendant and his wife were interrogated by the police. The defendant said it was self defense. The wife told the police she was not sure whether the man who had been stabbed had a weapon, putting her husband’s self-defense claim on shaky footing. At trial, the wife refused to testify. The prosecution sought to present her statement during the interrogation. The defendant objected on the basis that he was denied his Constitutional right to confront the witness (his wife) whose testimony was to be used against him. Justice Scalia agreed with the husband (following a long digression into the history of the Confrontation Clause in England and its meaning in the 1700’s, etc.)
The opinion discusses the application of the hearsay exceptions to what Scalia refers to as “testimonial” statements. The opinion holds that the Confrontation Clause of the Constitution effectively precludes use of a testimonial statement (such as a videotaped police interrogation) where the witness does not take the stand. If the witness is not available to testify, the defendant is denied his or her right to confront the witness. Justice Scalia’s opinion left open several issues: where is the dividing line between testimonial and non-testimonial statements and what exceptions apply to testimonial statements. Justice Scalia suggested that testimonial statements by co-conspirators were covered by an exception.
In Martha Stewart’s case, Martha and her stockbroker were interrogated by government investigators. The government sought to introduce the statements to show that Martha and her stockbroker conspired to prevent the investigators from learning the truth. Martha claimed that the videotapes could not be used against her as evidence “for the truth” of the alleged conspiracy. The Second Circuit held that statements made in furtherance of a conspiracy to obstruct justice can be admitted.
The Second Circuit noted that no conspirator in an obstruction of justice case will make completely untruthful statements. There will be enough truth in the statements to make them appear credible. As a result, the Court of Appeals permitted the statements to come in against Martha Stewart and her stockbroker. This decision is based on language in Crawford regarding an exception for testimonial statements by co-conspirators (which are admissible).
The stage is set in this case for the defendants to claim that the 911 call, statements at Swann Street on the night of the murder, and the videotaped interrogations may not be used against them as evidence “for the truth of the matters asserted.” This leaves the question of whether the defendants are available to testify.
The defendants have the right to take the stand in their own defense to face these charges of obstruction of justice, tampering with evidence, etc. If one or more of the defendants does not take the stand, how can they then claim the benefits of the Confrontation Clause? Can it be used as both a sword and a shield? I think this is what the judge is driving at.
It may seem unfair, but if all three defendants (as a matter of trial strategy) fail to testify, it seems pretty cheeky of them to claim that their statements should not come in for the truth of the matters asserted (subject to some sort of Stewart analysis that acknowledges that someone who wants to obstruct justice puts some truth and some lies into the story to weave a credible story).
Again, take all of this with a grain of salt, but I think this may be where the judge is going. She is putting both the prosecution and the defense to the test.