End runs and talismanic incantations

No, we are not discussing Macbeth.

The great Professor Friedman, on his confrontation rights blog has some thoughts and commentary and confrontation issues, some of which involve the recently granted Williams v. Illinois. In his recent comment he reminds us of two errors prosecutors like to commit: making an end run around hearsay and confrontation, often coupled with a talismanic incantation that the testimony or evidence isn’t offered for the truth. (This BTW is another aspect of the “context” issue I’ve posted about already: Just laying the groundwork your honor! Background testimony by police; Investigator context testimony .)

The point Professor Friedman is making is that we often make the correct hearsay objection, but we also need to consider making a 6th amendment objection to preserve the issue.

Prosecutors occasionally try to evade the Confrontation Clause by offering, rather than the actual words of a statement, evidence from which the substance of the statement can be inferred. This attempt should not be countenanced. So we have what actually can be a tricky problem, determining when a statement is sufficiently presented to invoke the Confrontation Clause.

If it’s a constitutional error, then any error has to be shown to be harmless beyond reasonable doubt, a supposedly higher standard for the prosecution to overcome on appeal. MJ’s evidentiary errors are usually evaluated by the abuse of discretion standard and for general harm/prejudice.

Later in his post Professor Friedman gets to the “context” issue again.

And this is where the “not for truth” end run comes in. The prosecution says that it was only offering the evidence to explain the conduct of the police. The First Circuit properly rejected this argument, elaborating on “the limitations on so-called background or context evidence[.]”

The talismanic incantation is meant to get past the judge, but it is intended that the members infer the testimony about what others said to be truthful and helpful to the prosecution.

And of course, when stuff gets in don’t forget my favorite point about so-called “curative” or limiting instructions and putting a skunk in the members box and then asking the members not to smell it.

It is better to follow the rules than to try to undo what has been done. Otherwise stated, one ‘Cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it’. Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962); Diamond Shari Seidman, and Neil Vidmar, Jury Room Ruminations on Forbidden Topics, 87 VA. L. REV. 1857 (2001); Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 EMORY L.J. 135, 175-78 (1989) (discussing studies on curative instructions and noting that “[t]he empirical research demonstrates that jurors are deeply affected by prejudicial comments and evidence and that curative instructions tend to increase the prejudice rather than decrease it. Moreover, the research shows that the impact is much greater in weak cases than in strong ones.”).