Habeas – Certificate of Appealability
We pause briefly to note the district court’s error in denying a certificate of appealability in this case. The statute provides that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has interpreted this language to require a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000), following Barefoot v. Estelle, 463 U.S. 880, 893 (1983).
When a state appellate court is divided on the merits of the constitutional question, issuance of a certificate of appealability should ordinarily be routine. A district court could deny a certificate of appealability on the issue that divided the state court only in the unlikely event that the views of the dissenting judge(s) are erroneous beyond any reasonable debate. See Slack, 529 U.S. at 484. That prospect is likely rare enough to call for some explanation in the order denying the certificate of appealability, an explanation that was lacking here.
Confrontation – “Course of Investigation” Exception
The general rule, that testimonial hearsay is barred by the confrontation clause absent declarant unavailability and prior opportunity to cross-examine, “applies only to hearsay, which must be a statement offered for the truth of the matter asserted” (Slip op., p. 16. quoting United States v. York, 572 F.3d 415, 427 (7th Cir. 2009).) In this case, the prosecution offered the statement of a non-testifying declarant inculpating Jones, on the theory that the statement wasn’t offered for substantive proof of Jones’ guilt but, rather, to inform the jury why the police focused attention on Jones. The 7th Circuit rejects the state court’s finding that the statement had non-substantive effect, and thus holds that Jones’ right to confrontation was violated.
The record of Jones’ trial shows beyond reasonable dispute that the Lewis statement was offered for the purpose of showing its truth, and that the trial court actually allowed its use to prove its truth. Time and again, the prosecution admitted that it wanted “to get into” the statement to show that “other independent evidence” linked Jones to the killings. Tr. 590. … By asserting it was using Lewis’ statement to serve as “independent evidence” of Jones’ guilt, the prosecution effectively admitted that Lewis’ statement was inadmissible hearsay being offered to prove the truth of the matters asserted. See, e.g., United States v. Harris, 542 F.2d 1283, 1300 (7th Cir. 1976) (noting that the hearsay rule “precludes the introduction of out of court statements made by one person as evidence against another”). That admission belies any contention that Lewis’ statement was used purely for a permissible collateral purpose.
As if that were not enough, the prosecution was allowed to go to some lengths to convince the jury that Lewis was a credible source of evidence. …
… Lewis’ credibility was important only if the prosecution was using his statement to prove the truth of its contents—in other words, his credibility mattered only if his statement was in fact inadmissible hearsay. See, e.g., In re Sawyer’s Petition, 229 F.2d 805, 809 (7th Cir. 1956) (“Evidence is hearsay when its probative force depends on the competency and credibility of some person other than the witness.”) (quotation omitted); see Black’s Law Dictionary 739 (8th ed. 2004) (defining hearsay as “testimony . . . dependent on the credibility of someone other than the witness”).
How many times have you had to sit through blatant hearsay that all but nailed down the case against your client, on the theory that the State was entitled to show its reasons for going after him in the first place? No? Don’t feel left out, it’ll happen sooner or later. You’ll want to read this decision closely – with the opinion file at 47 pages, the heavy lifting will have to be done by you, not On Point. But here are some highlights to get you started.
- The “course of investigation” hearsay exception – statement offered merely to explain why the investigation proceeded as it did – is narrowly construed:
- Because this readily abused exception can easily violate a core constitutional right, “Courts asked to admit such statements for supposed non-hearsay purposes must be on the alert for such misuse.”
- “For this reason, the ‘course of investigation’ exception is most readily applied to admit only those brief out-of-court statements that bridge gaps in the trial testimony that would otherwise substantially confuse or mislead the jury.” (In other words, “only a small amount of information is legitimately needed in all but the rarest cases. Under the ‘course of investigation’ exception, we typically allow only the briefest out-of-court statements.”)
- Et tu, Bruton? In this instance, the hearsay wasn’t courtesy of just any informant, but of an accomplice, which raises the separate concern of the dangers of even nonhearsay use of one accomplice implicating another. “Pointed” limiting instructions and redaction to the fullest extent possible are called for, and even then admissibility requires that “the asserted non- hearsay purpose actually advances the compelling interests at the heart of the Court’s analysis in [Bruton]: ‘the integrity of the trial’s truth-seeking function’ and the ‘accuracy of the truth-determining process.'”
… Aside from those limited details necessary to show “that the evidence [found] is actually relevant,” United States v. Tanner, 628 F.3d 890, 903 n.5 (7th Cir. 2010), the details of an investigation are generally “of only minimal consequence to the determination of the action.” Mancillas, 580 F.2d at 1310 (quotation marks omitted); see United States v. Linwood, 142 F.3d 418, 426 (7th Cir. 1998) (questioning relevance of such testimony); Reyes, 18 F.3d at 71 (noting that the “history of [an] investigation” is a useful narrative device, but is “not relevant to the guilt or innocence of the defendant”); Teague v. State, 314 S.E.2d 910, 912 (Ga. 1984) (“At heart, a criminal prosecution is designed to find the truth of what a defendant did and, on occasion, of why he did it. It is most unusual that a prose- cution will properly concern itself with why an investigat- ing officer did something.”); 2 McCormick on Evidence § 249 (6th ed.) (“The need for this evidence is slight . . . .”).By the same token, the probative value of a tip on which an investigation was based is “marginal, at best,” absent perhaps a (relevant) allegation of police impropriety. … Even when the police have been accused of acting improperly, how-ever, the relevance of law enforcement’s “reasons for investigation” remains questionable. See Mancillas, 580 F.2d at 1310.