In
United States v. Diamond, __ M.J. ___, No. ARMY 20010761 (A. Ct. Crim. App. Dec. 21, 2007), the second major issue is whether post-murder statements made by a co-conspirator to misinform law enforcement agents constituted uncharged misconduct about a separate conspiracy to obstruct justice rather than statements in furtherance of the conspiracy to commit premeditated murder. ACCA rules that this is a fact-based issue. In this case, the court held that the statements were in furtherance of the premeditated murder and its objective.
Id., slip op. at 27-28. ACCA relied, in part, on a 195 CMA case indicating:
[N]ot infrequently the commission of a criminal offense is followed immediately by an active attempt to conceal it. Thus, a rule has arisen to the effect that the declarations of a co[-]conspirator are admissible against a co[-]conspirator not only when they are made during the perpetration of the offense, but also when expressed during the course of a subsequent attempt to conceal the crime and relating to it.
Id., slip op. at 26 (quoting
United States v. Taylor, 6 C.M.A. 289, 293, 20 C.M.R. 5, 9 (!955) (second and third alterations in the original)).
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So now there is yet another judicially created exception to the Confrontation Clause. First, the NMCCA in U.S. v. Rankin (affirmed by CAAF) invents a primary purpose test and now ACCA invents a new exception with its opinion in U.S. v. Diamond. Adherence to the Confrontation Clause certainly makes the prosecution of cases more difficult for the Government. However, is this a reason to create new exceptions to the Confrontation Clause?
The Supreme Court did away with the exception to the Confrontation Clause that was created by Ohio v. Roberts. This should be a clue to the military courts that the creation of new exceptions to the Confrontation Clause is contrary to the Framer's intent that testimonial statements be subjected to the crucible of cross-examination.
OL, Crawford tells us that the Framers intended the 6th Amendment confrontation clause to apply only to "testimonial" evidence – not out of court statements in general. The point in Diamond, which has already been adopted by several federal circuits, is that statements made by co-conspirators during the course of and in furtherance of conspiracy are not "testimonial." That is, if A and B conspire to rob a bank, and then after the robbery discuss how to conceal the loot, those are hardly “testimonial” statements as envisioned by the Framers. Besides, the main opinion in Crawford, much to the ire of the late Justice Rehnquist in his dissent, seems to leave it to lower courts to determine the size and scope of what would be testimonial evidence. So I don't see that either CAAF or ACCA is overstepping its bounds,
Anonymous, I certainly agree that only testimonial statements are subject to the dictates of the Confrontation Clause. Crawford makes that much clear.
However, I take issue with ACCAs determination that statements made after the object of the conspiracy is complete are not hearsay. Of course, this issue does not implicate the 6th Amendment because nontestimonial statements are not subject to the Confrontation Clause. See Whorton v. Bockting, 127 S. Ct. at 1183 where the Supreme Court stated that “[u]nder Crawford, . . . the Confrontation Clause has no application to [nontestimonial statements] and therefore permits their admission even if they lack indicia of reliability.” However, that said, even though the 6th Amendment is inapplicable to nontestimonial hearsay, I am greatly concerned that the military courts and other federal courts see fit to continue to create exceptions to the rules of evidence (such as in U.S. v. Diamond) and to the Confrontation Clause (such as in U.S. v. Rankin and its progeny).
I should note that my greatest concern is the creation of a primary purpose test in U.S. v. Rankin which is poorly reasoned and which has resulted in the creation of a new exception to the Confrontation Clause. Specifically, the Supreme Court opined that testimonial statements (absent some exceptions) must be subjected to the crucible of cross-examination. However, in U.S. v. Rankin, 64 M.J. 348, 352 (2007), the CAAF (adopting the lower court's new exception to the Confrontation Clause) opined that:
Consistent with Crawford and
Davis, . . . a number of
questions emerge as relevant
in distinguishing between
testimonial and
nontestimonial hearsay made
under circumstances that
would cause an objective
witness to reasonably believe
that the statement would be
available for use at a later
trial. First, was the
statement at issue elicited
by or made in response to law
enforcement or prosecutorial
inquiry? Second, did
the “statement” involve more
than a routine and objective
cataloging of unambiguous
factual matters? Finally,
was the primary purpose for
making, or eliciting the
statements the production of
evidence with an eye toward
trial?
It is one thing to state that a criminal defendant has no right to test the reliability of a nontestimonial statement. In light of U.S. v. Crawford, this much is a given. However, it’s fallacious to hold that a statement that bears witness against a criminal defendant is not subject to Confrontation Clause scrutiny simply because it also serves a primary nontestimonial purpose. After all, despite the statement’s dual purpose nature, the need to test its reliability is not diminished. To hold otherwise is equivalent to replacing the Ohio v. Roberts, 448 U.S. 56, 66 (1980) reliability morass.
What's all the hubbub about? This guy murdered his girlfriend's husband. Confrontation clause or no confrontation clause, this guy's a scumbag. Case closed. Thanks for playing.
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