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SCOW will take up hearsay rules; “opening the door” to confrontation violations

State v. Garland Dean Barnes, 202AP226-CR, petition for review of a per curiam opinion granted 4/15/22; affirmed 6/6/23; case activity (including briefs)

Questions Presented:

Can a defendant open the door to testimonial hearsay violating his confrontation rights, and which was excluded based on an egregious discovery violation, by challenging the quality of the police investigation?

Can the claim that a non-testifying officer witnessed the defendant commit the crime be admitted over hearsay objections under the theory that it is admissible to show the course of investigation, not for the truth of the matter asserted?

The above are the issues SCOW agreed to decide in this case; they did not grant review of several other issues raised in the petition.

Astute readers may note that the first question it nearly identical to the question presented to SCOTUS in Hemphill v. New York. That decision held that, no, a defendant’s challenge to the state’s case does not “open the door” for the state to go ahead and put on testimony that violates the confrontation clause. Here, due to an “egregious” discovery violation, the trial court had excluded the state’s proffered testimony from an officer who said he’d witnessed Barnes delivering methamphetamine. The court of appeals held that Barnes’s counsel “opened the door” for the state to introduce another officer’s testimony that he’d overheard the excluded officer’s statements about witnessing the deal. The door-opening maneuver: the defense noted the police had failed to make any video recording of the purported buy. Under Hemphill, it seems clear that such a challenge to a weakness in the state case doesn’t give the state free hand to violate the Constitution. We’ll see what SCOW says.

As to the second issue, the lower courts also held that the second officer’s testimony about the first one’s statements was really hearsay because it was offered to explain that second officer’s state of mind as the investigation continued. As the petition aptly notes, though, the “state of mind” hearsay exception pertains to the state of mind of the declarant, not, as here, a person who heard the remark. What’s more,

this type of “state of mind” exception, showing the course of investigation and why an officer does something, is narrowly construed and cannot extend to key facts of the controversy. See, e.g., Jones v. Basinger, 635 F.3d 1030, 1046 (7th Cir. 2011); United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004). As the Second Circuit explained in United States v. Reyes, background information can be admissible to show an officer’s state of mind so the jury will understand the agent’s subsequent actions when that evidence clarifies “noncontroversial matter without causing unfair prejudice on significant disputed matters.” Id., 18 F.3d 65, 70 (2d Cir. 1994). The Reyes court offered a balancing test of weighing relevance against prejudice. Id. at 70-71. Since these statements pertained to the key contested issue at trial—who provided the box of methamphetamines—they clearly pertained to disputed matters and were hearsay.


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