No Hearsay/Confrontation Clause Issues In Testimony About Observations And Confidential Informants

In drug trial, agents could testify about their personal observations in interacting with confidential informants which did not raise hearsay or Confrontation Clause concerns, additionally, the use of recorded conversations of non-testifying confidential informants did not implicate the Confrontation Clause when offered to supply context and understanding about the conversation with the defendant, in United States v. Foster, 701 F.3d 1142 (7th Cir. Nov. 28, 2012) (No. 11-3097)

Evidence involving confidential informants can raise hearsay and Confrontation Clause concerns. See, e.g., Using Informant’s Testimonial Statements As Background Did Not Violate The Confrontation Clause." The Seventh Circuit recently considered Confrontation Clause and hearsay challenges to evidence involving confidential informants.

In the case, defendant Foster was prosecuted based on his sale of crack cocaine to a paid confidential informant. At trial, recorded conversations involving non-testifying confidential informants were played for the jury. Agents also testified about receiving drugs, money and other items from confidential informants after they met with the defendant. Following his conviction, the defendant challenged this evidence on Confrontation Clause and hearsay grounds.

The Seventh Circuit affirmed the admission of the evidence.

Agent Observations

Agents testified at trial that after the controlled purchase the confidential informants spoke of seeing the defendants “with drugs, money, a transmitter, and a scale.” Foster, 701 F.3d at 1153. As an example, at trial the following exchange occurred:

And when you and the confidential informant arrived at the debriefing spot, what, if anything, did the informant give you?
Agent [Jacob J.] Casali:
The informant turned over to me the crack cocaine that had been purchased from the defendant, as well as the transmitter and the electronic scale, at which time I removed the recording device from his vehicle, as well—he also turned over any—any—any unexpended funds.
Foster, 701 F.3d at 1153.

The circuit had little trouble concluding that the challenged testimony did not violate either the Confrontation Clause or hearsay rules based on its precedent:

We have many times determined that testimony regarding an agent’s personal observations does not implicate hearsay concerns. See United States v. Pira, 535 F.3d 724, 729 (7th Cir. 2008) (noting “the personal observations of [the] Special Agent . . . are not in fact hearsay); United States v. Bursey, 85 F.3d 293, 296 (7th Cir. 1996) (explaining that the officer’s “testimony about his personal observations of and encounters with [the defendant] during his police work do not qualify as out-of-court ‘statements’ under the hearsay rules.”); United States v. Gandara, 586 F.2d 1156, 1158 (7th Cir. 1978) (an agent’s testimony regarding facts “within his own personal experience” based on surveillance is not hearsay). The challenged testimony in the present case exclusively concerned the agents’ personal observations and actions: the agents personally witnessed the controlled buys, searched the [confidential informant] CI before and after each transaction, and followed the CI to the debriefing location after each transaction to collect the drugs, money, and recording equipment. Accordingly, their own actions formed the basis for their testimony, and their testimony did not relay “nonverbal conduct” statements of the CI.
Foster, 701 F.3d at 1154.

Confidential Informant Recordings

The circuit also concluded that the manner in which the recorded conversations of non-testifying confidential informants was used at trial did not violate the Confrontation Clause. In the recordings played for the jury, the non-testifying confidential informants discussed the weight and quality of the crack cocaine with the defendant. The circuit concluded that these statements were not offered to establish the truth of the weight or quality but “to explain the defendant’s acts and make his statements intelligible” or to clarify the defendant’s “focus on ensuring that his supplier provided the right quantity on that occasion.” Foster, 701 F.3d at 1151. The specific weight or actual quantity did not matter.

As used, these recorded statements between non-testifying confidential informants and the defendant were offered for a non-hearsay purpose -- to “provide context for the defendant’s own admissions” and “relevant background to the defendant’s responses, enabling the jurors to comprehend the conversation as a whole” and therefore did not violate the Confrontation Clause. Foster, 701 F.3d at 1152. In support, the circuit noted its prior precedent:

  • United States v. York, 572 F.3d 415, 427 (7th Cir. 2009) (“[P]laying the tapes of those conversations for the jury does not violate the Confrontation Clause so long as those tapes are offered to provide context for the defendant’s own admissions.”)
  • United States v. Nettles, 476 F.3d 508, 517 (7th Cir. 2007) (“[W]hen statements are merely offered to show context, they are not being offered for the truth of the matter asserted, and therefore, Crawford [v. Washington] does not require confrontation.”)
  • United States v. Van Sach, 458 F.3d 694, 701 (7th Cir. 2006) (“[S]tatements providing context for other admissible statements are not hearsay because they are not offered for their truth.”)

For a case from the Eleventh Circuit reaching a similar result on the use of recorded conversations, see Contextual Use Of Recorded Conversation Did Not Violate Confrontation Clause.

While the use of statements from non-testifying confidential informants (or other witness) can raise Confrontation Clause and hearsay issues, the Foster case demonstrates how these issues may be avoided where testimonial statements offered for the truth of the matter asserted were not presented.


Federal Rules of Evidence