Stewart on Swann Street

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.

38 comments for “Stewart on Swann Street

  1. Themis
    06/13/2010 at 1:13 PM

    The defendants can absolutely refuse to testify and to insist on their right to confrontation. The rights flow from different clauses of the constitution but were both intended by the framers to prevent abuses by the government. The types of abuses suffered by sir walter Raleigh.

    Moreover the judge will have to decide when the conspiracy ended because statements made to cover up the conspiracy, the cover up of the cover up, don’t qualify as co conspirator statements under Roviaro. And while they may be used against the declarant, they cannot be used against a codefendant who doesn’t testify.

    • chilaw79
      06/13/2010 at 4:03 PM

      Martha Stewart and her stockbroker did not testify in court. They did speak with the government investigators (rather than asserting their Fifth Amendment rights).

      The defendants here all acknowledged they spoke with the police voluntarily.

      I will note that the Supreme Court did not issue the Crawford opinion until a few days after the trial. Stewart and her stockbroker did not object to the admission of their statements to the government investigators through the testimony of an SEC attorney and an FBI agent about what they said and did not say and a tape recording of the stockbroker’s interview. The issue was raised on appeal and considered there under a plain error standard.

  2. Bill Orange
    06/13/2010 at 1:38 PM

    Again, I still don’t get the whole “for truth” versus “not for truth” issue. The relevant decisions all seem to be based on the idea that a JURY can’t sort out the difference between the two and may hold statements against a defendant “for truth” even they’ve been submitted “not for truth”. But that’s not the situation here. Instead, this trial will be decided by a highly-competent judge, who seems to be better versed on the nuances of for-truth/not-for-truth than the lawyers for either the prosecution or the defense.

    With that in mind, I STILL don’t understand why each defendants’ statements can’t be admitted “for truth” against that particular defendant and simultaneously admitted “not for truth” against the other two defendants. Since the statements from the defendants are all largely consistent with one another, I don’t understand why the prosecution doesn’t at least TRY this option.

    • chilaw79
      06/13/2010 at 4:23 PM

      I think I understand what you are saying. You are saying, let Victor’s police interview come in against Victor for the truth of the matter asserted, but not against Dylan or Joe.

      Is the government going for broke here in effectively arguing that the defendants are telling the truth about the “intruder” but are hiding the fact that it is Michael Price?

      The legal issues and the trial strategies both are confusing me.

      • Bill Orange
        06/13/2010 at 4:38 PM

        Exactly. Wouldn’t that work here?

        • chilaw79
          06/13/2010 at 5:13 PM

          I think part of the prosecution’s case is to look at the consistencies and the differences between the various statements as evidence of an agreement to mislead the police. The prosecution seems to want all of the statements admitted against everyone. There is no real dispute about what was said. It is recorded. The issue is whether the three defendants all agreed to tell the same story or whether it is the truth.

          In Martha Stewart’s case, the defendants agreed on a basic story. Douglas Faneuil, the stockbroker’s assistant, said Bacanovic (the stockbroker) told him: “Everyone’s telling the same story. This was a $60 stop-loss order. That was the reason for her sale. We’re all on the same page, and it’s the truth. It’s the true story. Everyone’s telling the same story.”

          Of course, none of the defendants has yet played the role of Douglas Faneuil and become a government witness.

          • Deb
            06/14/2010 at 12:00 AM

            Maybe everything they said was true and really happened.

            For me, the evidence of conspiracy lies in the 11:43 statements. (Times 3). Just not believable. Unfortuately, does not seem to be in evidence yet? (Bea would know).

  3. Themis
    06/13/2010 at 2:08 PM

    It is somewhat easier to understand it as evidence offered in court of an out of court statement offered “for the truth of the matter asserted” in the out of court statement. If witness testifies in court, so and so told me was going to do X or had done Y,” that can be admitted as evdence that that is what so and so said. But it can’t be used as evidence that so and so actually did one of those things unless a hearsay exception applies.

    • chilaw79
      06/13/2010 at 4:18 PM

      Can you illustrate this concept with a statement made by one of the defendants, such as whether there was a lot of blood? Or whether Price got a second towel?

    • chilaw79
      06/13/2010 at 5:39 PM

      In a “false statement” case (which is essentially what obstruction of justice entails), how would the government ever prove its case if the defendant insisted on the privilege against self-incrimination?
      I see the recorded police interviews as evidence of the statements. The government then needs to show that the defendants lied or misled them.

      The defendants could have refused to speak with the police, but they chose to speak with them voluntarily. The defendants also called 911. Some or all of the 911 call can be considered testimonial, but it also could be part of a plan to prevent the government from finding out the identity of the murderer.

      • Deb
        06/13/2010 at 11:42 PM

        Hi, CHILAW —
        One thing to underscore that I did not see mentioned in this particular post of yours (but must admit I’m really just scanning as I drift to sleep) is that a “false statement” in most jurisdictions also includes deliberate omission.
        So it’s possible that everything the defendants said is true and actually did happen — heard chimes, saw a bug on the light, the grill caught on fire, watched project runway . . .
        But if they deliberately ommitted information, their statements, in most jurisdictions, become false.

        • chilaw79
          06/14/2010 at 8:58 AM


          I agree one hundred percent. For example, if the defendants know who the intruder is, then the basic story told by the defendants is true, but the omission of the intruder’s name makes each of their stories false.

          Of course, there are a few discrepancies between the statements by each of the defendants, such as whether there was “another towel.”

          As the Court of Appeals said in the Stewart case, truth will be commingled with lies or omissions to give the whole statement more credibility.

  4. Bea
    06/13/2010 at 2:23 PM

    And then add on the complication of the “for the truth” against the speaker but not against the other defendants makes it harder to understand. Hey Themis, what would YOU do if Joe Price wanted to take the stand? I assume like most, you’d say ARE YOU CRAZY? But what of the complications if Bernie knows he’s going to perjure himself, how could he go withdraw in front of this judge who is likewise the one determining guilt? Would there be a mistrial – or is it too affected as a possible ploy from the defense?

    Of course a mistrial would gain the defendants a bit longer freedom and then having the prosecution’s case to play with for a very long time.

  5. Themis
    06/13/2010 at 3:03 PM

    Under no circumstance can a defense attorney suborn perjury. That’s why old fashioned lawyers don’t want the client to tell them everything. Personally, I think that’s BS. I want to know everything and have polygraphed more than one client. You can’t defend against facts of which you had no knowledge, and there’s nothing worse than being sanbagged at the last minute, especially if you’ve made contradictory statements to the jury.

    But I have to have very good evidence that my client will lie on the stand before I can refuse to put him on the stand if that’s what he wants (ultimately it is his decision) or move to withdraw. In the latter case you cite the breakdown in the attorney client relationship. You don’t say my client wants to perjure himself.

    I would strongly advise all of the defendants not to testify. Joe’s ego will make him spar with the prosecution and the judge because he thinks he is the smartest in the room. Goaded enough, he’ll trip up.

    • Elizabeth
      06/13/2010 at 4:56 PM

      Well said, and I think that is what the detectives during the interrogation were trying to do – goad him into tripping up. I don’t think, as many have said, the investigation was crap from the start because the detectives were homophobes.

      • Themis
        06/13/2010 at 5:10 PM

        I didn’t mean to imply he would say something that would be direct evidence of his guilt, but that he’ll say something that contradicts a previous piece of evidence. It happens on a good cross. And if the fact finder thinks you’ve fibbed about something small s/he can use that as evidence that you’ll lie about other things. Moreover if the governments witness said something different than you stay on the stand-even about something minor-and the jury thinks you’ve fibbed the govt witness becomes that more credible in the factfinders eyes. It’s a complicated calculus.

        As always, I don’t opine about guilt or innocence. In the long run that roves to be a disservice to my own clients.

    • Farmer Ginny
      06/14/2010 at 7:34 AM

      How does this relate to the defense motions about Michael Price? Surely they couldn’t put forth Michael’s alibi for the evening, if they knew he was actually the intruder.

  6. Leonard
    06/13/2010 at 3:59 PM

    As I understand the Stewart ruling the testimonials are in essence a fabric of truth and falsehood. The provision of these misleading testimonials was a basis of the crime. The governents position was that the provision of these misleading statements was a conspiracy intended to thwart the governments investigation. To exclude the testimonials under Crawford doesn’t apply because the provision of them is a major aspect of the crime. Anyone else see it as such?

  7. Themis
    06/13/2010 at 4:42 PM

    At Cosi, Joe tells someone that he pulled the knife out of Robert’ chest. Assuming the conspiracy is over, the statement can be admitted against Joe as the statement of a party opponent as evidence that Joe did remove the knife. It cannot be admitted against the others as proof that Joe removed the knife, only for some other purpose such as why the listener took certain actions afterward. There are a host of exceptions in the rules.

    It’s important to remember that hearsay rules are just that rules. Confrontation is a constitutional right for a criminal defendant. Something may be admissible under the rules but not satisfy confrontation. This is the stuff of bar exam hell.

    The rules of evidence can be found online. And you can get cheap bar prep materials at eBay on individual topics. I didn’t go to a bar prep course, but barbri is one of them. I’d just search for bar exam evidence. Cases such as Washington v Crawford and Roviaro can be found at

    • Elizabeth
      06/13/2010 at 5:33 PM

      Can you explain the importance of delineating when the conspiracy is over? It is referred to twice in the comments from this post. But I know in the Affidavits and in the Estate of Robert Wone v. Price, Ward and Zaborsky they both mention that the conspiracy is on-going and continues “to this day.” Thanks.

    • William
      06/13/2010 at 7:24 PM

      JP sounds like the type of person to play up/inflate his role in things to sound important. Could he have told the truth to the police and exaggerated his role to his friends?: “I tried to save his life. I pulled the knife out of his chest and tried to stop the bleeding….” How could he have expected that things he said in private to dear friends would become testimony against him? Presuming he’s innocent, would he have expected his statement to the police to be used as evidence against him – not to mention published on a blog and commented upon by countless frustrated attorneys?

      No, he’s not a good person. He lies to friends. How can saying one thing to friends and another to police be proof that he’s lying to police?

      • Deb
        06/14/2010 at 12:15 AM

        If you are saying one thing to friends and another thing to police — out of the same one moth — you are lying to someone, which makes you a liar worthy of further investigation

  8. Leonard
    06/13/2010 at 5:54 PM

    Remember that the prosecution isn’t trying to prove any of the three committed the murder. The case is about conspiracy. So a hypothetical statement like “I saw him shoot her” isn’t being considered as first hand testimony that “him” shot “her” but only as a basis for whether the attestant of that statement was telling the truth when they said it. “Him” may have indeed shot “her” but if the attestant was blindfolded and locked in a trunk they couldn’t possibly have seen anything and their testimony would be false.

    • Themis
      06/13/2010 at 6:12 PM

      When you have to judge the truth or falseness of the “content” of a statement that’s the same as offering it for the truth of the matter asserted. The out of court statement stands in place of live testimony by the nontestifying declarant and thus subject to credibility determinations. You can’t avoid hearsay rules by saying we’re not offering it for the truth but to show the out of court declarant was lying. Unless it is a statement a coconspirator “in furtherance” of the conspiracy. If not it can not be offered against a nondeclarant.

      • Bea
        06/13/2010 at 7:59 PM

        Themis, with respect to Joe speaking with Jason Torchinsky a couple of days post-murder wanting to find out what the police asked about (and asking him to get Kathy to waive the attorney-client privilege) can’t it be argued that the conspiracy is indeed not yet over? The cover-up was still overt at that time. Likewise, a few weeks later when mutual friend Tara Ragone spoke to Joe by phone and she informed him that she wanted more information about the ‘crime scene tampering charges’ because “that would not set well” with her (she was also a lawyer) can’t it be stated that Joe’s still involved in a conspiracy to obstruct? Likewise, as those statements included (1) that he pulled the knife from Robert’s chest and (2) that “wiping blood when you’re freaked out” isn’t “the same as tampering” perhaps they would go to tampering even if not to conspiracy?

        • Themis
          06/13/2010 at 8:18 PM

          I could also argue that one each defendant had given one full account of the night the conspiracy was over and anything that followed was just an effort to cover up the conspiracy.

          As Krulewitch (not Roviaro which is an informant case) states, every conspiracy will involve a cover up once the game is up, but to allow the government to continue to use the conspiracy after arrest for example turns an exception into the rule and leads to an explosion of conspiracy charges that the founding fathers would abhor. Conspiracy has become the goldfish that swallowed the whale. Justice jackson’s concurrence is well worth the read. Spagnoletti should get on the ball.

          • Bea
            06/13/2010 at 8:25 PM

            But there had been no arrest. Doesn’t that factor in as to both Torchinsky and Ragone communications? Or at least arguably so? If they are still actively misleading the police (trying to find out what the police know and actively trying to interfere with Kathy Wone’s communications with cops) and later when the mutual friend informs Joe Price (arguably that she’d take action) he goes further to argue against it (“wiping up blood” and pulling knife from chest). I recognize and respect your position as a defense attorney but in this setting where you are not in that position, could you not see this as viable (not a winning argument, necessarily, but a viable one)?

            • Themis
              06/13/2010 at 9:08 PM

              I actually think the judge will buy it if she finds that Joe knew his conversations would be communicated to the police. But, assuming there is money left, see it as a strong basis for appeal. I think we’ll learn more about the judge’s leanings next week. I don’t know why the defense has not asked the judge to resolve this issue on the record giving her reasoning. I realize I am generally considered a very aggressive advocate, but court’s job is to rule and cousel’s job is to make her rule whether for reasons related to offense or defense (strategically speaking). There’s no shame in being told to sit down if you’re doing your job. At least you’ve made a record where the higher court can’t find waiver.

              • chilaw79
                06/13/2010 at 10:47 PM

                As a matter of trial strategy, do you think the defense counsel has been a little slow in objecting and failing to build a record on some of these issues? To me, it looks like the judge is letting everything in.

                I have no idea where I would come out if I were the judge, but it seems like she either has made a decision or it is too late for the defendants to object. To be fair, the prosecution does not seem to want to commit itself as to whether statements are coming in for the truth of the matter asserted.

                • Bill Orange
                  06/13/2010 at 11:34 PM

                  “To me, it looks like the judge is letting everything in.”

                  I don’t agree. She threw out the padded restraints, not to mention all the rest of the BDSM gear and literature.

                  • chilaw79
                    06/14/2010 at 9:00 AM

                    You are correct on that score, although I was thinking more about statements to the police, including the on-scene statements, the 911 call, and the interviews at the police station.

          • chilaw79
            06/13/2010 at 9:17 PM

            If this were a murder trial, I might agree with you. It is not. The defendants are charged with obstruction of justice and tampering with evidence.

            In Krulewitch, when the “co-conspirator” defendant called the witness to tell her not to talk without a lawyer, the conspiracy to take the woman across state lines for purposes of prostitution was over. The defendant was not charged with obstruction of justice or witness tampering. As a result, the Supreme Court would not let the evidence of the co-conspirator’s attempt to cover-up the crime come in as evidence of the underlying crime.

            I agree there are thorny issues in this case and I am glad I do not have to think about them every day. I am sure the issues raised by Crawford, Davis and their progeny are front and center in Mr. Spagnoletti’s mind.

          • Bob
            06/14/2010 at 11:05 AM

            “Conspiracy has become the goldfish that swallowed the whale.” Is the whale the murder? Isn’t a conspiracy to cover up always a scheme to swallow a crime.

  9. christy love
    06/14/2010 at 1:35 AM

    You guys are confusing the hell out of me. Is what they told police hearsay? Or just the other people?

    • chilaw79
      06/14/2010 at 9:08 AM

      It is confusing because of the Confrontation Clause. Basically, each of the defendants want to keep out the statements made to the police by the other two defendants.

      The prosecution should say that the statements to the police and the 911 operator are not hearsay because what was said to the police constitute statements by co-conspirators in furtherance of a conspiracy to obstruct justice.

      • christy love
        06/14/2010 at 10:46 AM

        Thank you. I went back last night and re-read the post and all the comments in this thread and now I understand a bit better. Many props to you lawyers, this stuff had my head spinning. What I get from it, and I will reduce it to its simplest terms, it seems that the law allows for the human element or the benefit of the doubt(for lack of better phrases) to come into play. I couldn’t for the life of me understand how statements to police could be hearsay, especially in this case, where a friend has been killed and they supposedly go and speak voluntarily to police to HELP and to do all they can to find friends said killer. But, then I started thinking about the human element and maybe they were stunned, in shock, not remembering things well, maybe they even misspoke, and maybe police got some things wrong, misinterpreted some things or flat out lied(regarding statement not recorded) and now want to use those things against them. It makes sense. But, it’s still complicated. Maybe this has already been discussed, but why are those statements allowed to be played and then these arguments presented? I would have wanted to hash this out, if I was the defense, BEFORE I let the judge listen to the statements. Since they are already in, how the heck can she disregard them? She’s human!!! I don’t care how good a judge you are and how impartial you claim you are.

        • chilaw79
          06/14/2010 at 11:12 AM

          I would be the first person to admit that I may have it all wrong.

          I agree with you that the defense should have insisted more on having this hashed out before the trial started. I think they tried to some extent. Also, the judge should have made the prosecution commit to a trial strategy before she heard the evidence. The lawyers all are giving the judge a lot of credit for being able to say after the fact that she will not consider testimony that already has been heard. Like the old saying goes, “How you do unring the bell?”

          • christy love
            06/14/2010 at 2:09 PM

            Exactly, I don’t think you can unring it, no matter what they say. It’s not a chance I would want to take with my freedom at stake.

            You have done a great job, I think you have it exactly right.

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