Whether documents were testimonial depended on whether the declarant realized she was talking to a government agent, in United States v. Honken, 541 F.3d 1146 (8th Cir. Sept. 12, 2008) (No. 05-3871)
The Eighth Circuit recently considered whether a declarant's statements in the form of a map and notes given to a cooperator acting as a government agent were testimonial. Defendant Honken was initially charged with federal drug trafficking counts. Subsequently, he and his girlfriend, Johnson, kidnapped and murdered five persons, including likely witnesses. Investigators connected Johnson and Honken to the murders. While Johnson was in custody in county jail, another prisoner, McNeese, who was serving a life sentence, told Johnson that another prisoner, who was also serving a life sentence, was willing to take responsibility for the five murders.
McNeese suggested that the other prisoner would need a plausible basis to claim responsibility such as providing details about where the five bodies were buried. Johnson gave McNeese maps and notes identifying the location of the five buried bodies. McNeese gave the maps and notes to officials who used them to find the bodies. At trial, the maps and notes were admitted over defendant Honken’s objection that they violated his Confrontation Clause rights and were inadmissible hearsay. Johnson was unavailable to testify in light of asserting her right against self-incrimination. Defendant Honken was convicted on charges involving witness tampering, murder, and drug conspiracy counts. Death and life sentences were imposed.
In applying Crawford v. Washington, 541 U.S. 36 (2004), the circuit concluded the maps and notes were not testimonial and therefore did not violate the Confrontation Clause. As the circuit explained:
“McNeese’s attempt to trick Johnson into revealing the location of the bodies was not tantamount to a police interrogation. McNeese was acting as a government agent when he received the maps from Johnson. McNeese most likely anticipated Johnson’s maps would be used at a later trial. However, we conclude the proper focus is on Johnson’s expectations as the declarant, not on McNeese’s expectations as the recipient of the information. Johnson did not draw the maps with the expectation they would be used against Honken at trial, nor did she draw the maps ‘for the purpose of establishing or proving some fact’ against Honken. Johnson drew the maps for the express purpose of recruiting another inmate to confess to the murders so she and Honken could go free. Further, the maps obviously were not a ‘solemn declaration’ or a ‘formal statement.’ Rather, Johnson more likely was ‘mak[ing] a casual remark to an acquaintance.’ We simply cannot conclude Johnson made a ‘testimonial’ statement against Honken without the faintest notion she was doing so.”
Honken, 541 F.3d at 1160 (quoting Crawford) (emphasis added). As an alternative basis, the circuit concluded that assuming the statements were “testimonial,” any error was harmless beyond a reasonable doubt based on the strength of other evidence, including other statements in which defendant Honken admitted murdering witnesses. As for the hearsay challenge, the circuit found the maps and notes were admissible as a statement against interest. The maps and notes implicated Johnson in the murders. The maps and notes were trustworthy and reliable, as they aided in finding the bodies.
The Honken case is significant since it resolves the issue on whether a statement is testimonial based on the view of the declarant, here Johnson. If the statements had been made during an interview with law enforcement, they would have been testimonial. See, e.g., Crawford, 541 U.S. at 56 n.7 (“Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse—a fact borne out time and again throughout a history with which the Framers were keenly familiar.”). The circuit recognized that the cooperator was operating as a government agent. Yet because the defendant did not know of the government agency, the statements were non-testimonial. The extension of this holding suggests that if the government can show the declarant does not know the person they are communicating with is an undercover officer or cooperating with law enforcement, the statement would be non-testimonial and admissible under the Confrontation Clause.
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