Testimonial Hearsay And Evidence "Created For Trial"

Can recorded jailhouse calls violate the Confrontation Clause? In marriage fraud conspiracy trial, admitting jail recording of defendant, his cousin and uncle's "casual" phone discussions about the cousin's "emotional state and conditions of incarceration"; the recorded statements were not testimonial despite the knowledge of the cousin and uncle, who did not testify, that the phone calls were being recorded, in United States v. Jones, _ F.3d _ (4th Cir. May 29, 2013) (No. 12–4211)

When the Supreme Court confessed in Crawford v. Washington, 541 U.S. 36 (2004) that it would leave "for another day any effort to spell out a comprehensive definition of ‘testimonial’,” even if it would "cause interim uncertainty” in the application of its ruling, it might not have imagined that nearly a decade later a simple, "comprehensive definition" still eludes the justice system. Crawford, 541 U.S. at 68 n.10. At the time, the Court reversed the 24-year precedent in Ohio v. Roberts, 448 U.S. 56 (1980), which it criticized as leading to "inherently, and therefore permanently, unpredictable" results. The Fourth Circuit recently considered the application of the testimonial standard under the Confrontation Clause to jailhouse recordings.

In the case, defendant Jones conspired with others to arrange "fraudulent marriages between Navy sailors and foreign nationals." As aptly described by the circuit, certain recordings were played for the jury:

The government also introduced three jailhouse phone conversations between Jones and his cousin Otis. One of these conversations included a three-way call between Jones, Otis, and Jones's uncle Austin Jones (“Austin”). The phone calls were recorded by the Chesapeake Correctional Center (“CCC”), where Otis was incarcerated. Before a call from a prisoner is connected, the inmate telephone system broadcasts an advisory to the parties that “all calls are subject to recording.”

During one jailhouse phone call, Jones told Otis 'don't let em ... try to break you, man.... We have everything safe for you[.]' Similarly, Jones instructed Otis to 'tell them men there is no fraud, no fraud. Tell your, tell your, tell your attorney to give me a call, man.' Jones also suggested that his family would support Otis should he return home to Grenada. Finally, Otis and Jones both expressed concern that NCIS agents would secure [Otis' wife] Bower's cooperation. Perhaps the most damaging statement occurred when [uncle] Austin joined one of the jailhouse calls and told Otis: 'Tell them you didn't conspire to do anything; you just, you, you, you married this woman because you saw her, you fell in love with her and all this stuff, you know, and just tell him exactly. That's how it is; you didn't conspire, that's not conspiracy!' Defense counsel objected that the statements by Otis and Austin were inadmissible hearsay. The district court, however, admitted the statements under the coconspirator exclusion to hearsay, Fed. R. Evid. 801(d)(2)(E), and to provide context to the admissible statements of Jones.
Jones, __ F.3d at __ (citations to record omitted and paragraphs reformatted for clarity)

In his appeal, the defendant "switched course" in challenging the recordings. At trial, the defendant objected on hearsay gruonds. On appeal, the defendant's strategy was to argue that the recordings of his cousin and uncle Austin were "testimonial" and inadmissible because the defendant had never received a chance to cross-examine his cousin and uncle at trial about the statements. The circuit was not persuaded by this effort. It first noted the current understanding of testimonial statements, while not fully flushed out, was still fairly common to apply. Under prevailing standards, statements are testimonial when “a reasonable person in the declarant's position would have expected his statements to be used at trial—that is, whether the declarant would have expected or intended to ‘bear witness' against another in a later proceeding.” Jones, __ F.3d at __ (citing United States v. Udeozor, 515 F.3d 260, 268 (4th Cir. 2008)).

The circuit seemed to suggest that there were few per se rules in conducting this test. For instance, one could not merely assume that "a declarant's knowledge that he is being recorded is dispositive. Even if Otis and Austin were aware that the prison was recording their conversation, a declarant's understanding that a statement could potentially serve as criminal evidence does not necessarily denote 'testimonial' intent." Jones, __ F.3d at __ (citing Davis v. Washington, 547 U.S. 813, 822 (2006) (holding statements made during 911 emergency phone call were non-testimonial when uttered only “to enable police assistance to meet an ongoing emergency”); United States v. Shavers, 693 F.3d 363, 390, 395–96 (3d Cir. 2012) (holding that inmates who received advisory that prison phone calls were recorded did not give “testimonial” statements); United States v. Ellis, 460 F.3d 920, 926 (7th Cir. 2006) (“[T]he mere fact a person creating a business record (or other similar record) knows the record might be used for criminal prosecution does not by itself make that record testimonial.”)).

The Fourth Circuit concluded its analysis by noting that the defendant's contention that the recorded statements were testimonial for Confrontation Clause purposes made little sense: "[J]use because recorded statements are used at trial does not mean they were 'created for trial," the circuit observed. Jones, _ F.3d at _ (citing United States v. Cabrera–Beltran, 660 F.3d 742, 752 (4th Cir. 2011)). Things were a bit more complicated than a per se rule. The circuit reasoned that practicality was an important virtue in assessing whether a statement is testimonial:

a prison has a significant institutional reason for recording phone calls outside of procuring forensic evidence—i.e., policing its own facility by monitoring prisoners' contact with individuals outside the prison. To adopt the rule Jones proposes would require us to conclude that all parties to a jailhouse phone call categorically intend to bear witness against the person their statements may ultimately incriminate.
Otis and Austin certainly did not speak on these phone calls for that reason. Nowhere in these casual conversations, which primarily concerned Otis's emotional state and the prison conditions at CCC, do either Otis or Austin demonstrate an intent to ‘bear witness' against Jones. In fact, any incriminating statement made during these conversations tended to also incriminate them in the fraudulent scheme.
Jones, __ F.3d at __ (citing record).

The Jones case highlights a recent application of the testimonial standard. Courts continue to wrestle with the contours and definition of this constitutional standard.

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