The Out-Of-Court Brain

By Sherry F. Colb

My VERDICT column this week is about the U.S. Supreme Court's decision in Michigan v. Bryant, which held that the words of a dying man who told police the identity of his shooter were not "testimonial" and thus did not trigger any right of cross-examination under the Sixth Amendment Confrontation Clause.  This determination was important because it meant that police could testify at trial about the dying man's earlier accusations without running afoul of the Sixth Amendment.  The column discusses the recent history of the Confrontation Clause and explains two distinct approaches that the Supreme Court has taken to the problem of hearsay offered against a criminal defendant with no opportunity to cross-examine his out-of-court accuser.  It concludes that the Court's current Confrontation Clause doctrine has proved to be a failure.

First, a short primer on hearsay, a concept that tends to elude many non-lawyers.  Hearsay is a prior statement offered at trial for the purpose of proving the truth of what the prior statement asserted.  Here's an example.  Jack says to his friend Jill:  "I just saw Jennifer steal an emerald tiara from Jewelry R Us."  Prosecutors later bring Jennifer to trial on charges of grand larceny call Jill as a witness for the prosecution.  "Did you have occasion to hear anything about the theft of an emerald tiara from Jewelry R Us?," the prosecutor asks Jill.  "Yes," responds Jill, "Jack told me that he saw Jennifer steal that emerald tiara."  If the purpose of this testimony is to help establish that Jennifer really did steal the emerald tiara, then the prosecution has just introduced hearsay into evidence against the defendant.

What's wrong with hearsay?  In everyday life, we frequently rely on hearsay to make decisions.  When deciding whether to buy a Brand X lawn-mower, for example, I might receive the advice of a passerby (Daniel) who says to "avoid the Brand X mowers.  My sister-in-law told me that they break down all of the time."  Hearing this, I might well decide to follow the advice and avoid making the purchase. This is true in spite of the fact that Daniel's sister-in-law could have made a perceptual error (perhaps the bad lawn mower was actually Brand Y, but she read the label incorrectly), could have remembered the brand incorrectly (perhaps she knew originally that she had purchased Brand Y but then forgot and thought it had been Brand X), could have meant to say "Brand Y" but misspoke and said "Brand X," or could have lied to her brother-in-law about the lawn mower.

Anyone who makes a factual statement, in or out of court, of course, could be conveying flawed information in all of these ways.  In the case of hearsay, however, the listener cannot observe the speaker as he speaks and accordingly cannot make direct judgments about how much credence to give the speaker's statements.  The listener also cannot ask follow-up questions of the speaker (such as "Did you use the lawn mower correctly?," "How many times did it actually break down?," or "Have you had better luck with other lawn mowers?").  The listener could ask these questions of the witness (here, Daniel), but Daniel might not be able to answer them, and -- perhaps more importantly -- Daniel's statements will not enable the listener to observe Daniel's sister-in-law directly while she makes the statement and answers the questions to thereby assess whether she appears to be confused, dishonest, or otherwise worthy of skepticism.

As a rule, then, we exclude hearsay from evidence (whether in a civil or a criminal trial), not so much because out-of-court speakers -- like in-court witnesses -- may be saying something false, but because a jury is not in as good a position to assess the truth or falsity of the out-of-court speaker as it would be in the case of a live witness:  by observing the speaker as he speaks and by observing him respond to questions posed to him in front of the jury.  Notwithstanding the lack of these tools, however, some hearsay is admissible in evidence, even at criminal trials against the accused.  Our courts have never been willing to keep all hearsay out of evidence.  Though difficult to evaluate compared to live witness testimony, we have always considered some hearsay worth the cost, just as we regularly consider hearsay in making important decisions in our daily lives.

We have so far reviewed the meaning of hearsay, the reason for its usual exclusion, and the reality that it does regularly come into evidence, notwithstanding the law's overall hostility to it.  Let us consider now the artificiality of the hearsay category, a fact that has arisen over the years in debates over the scope of the hearsay bar.  One important feature of what makes hearsay distinct from other sorts of evidence, for example, is the fact that someone has conveyed information from her mind, and that information is now offered for the jury's consideration, though the jury is not able to watch and listen to the conveyance of that information (and thus make a direct judgment about it), because it occurs outside of their presence.  This inability, however, is not unique to out-of-court communication.

A witness, Paul, could testify, for example, that he looked out of his window at 2pm on July 7th and saw a car drive by with its windshield wipers on.  The party calling Paul may offer this testimony to prove that it was raining at 2pm on July 7th.  The person driving by, however, may have been mistaken about the weather (e.g., she believed that it was raining because some acorns had fallen out of a tree and onto her windshield; she forgot what she once knew (i.e., that it was acorns and not rain falling); she meant to turn on her headlights but turned on the windshield wipers by mistake); or she may have been deliberately misrepresenting the facts (i.e., putting on his windshield wipers in order to make people think it was raining outside so they would stay indoors).  Any time a jury takes out-of-court actions as evidence of what the actor believed and of the accuracy of that belief (in our case, that it was actually raining at 2pm on July 7th), it risks the possibility that the actor either did not believe what he appeared to believe or did believe it but was mistaken.  The jury cannot, in such cases, directly watch the actions in question to make an independent assessment of that risk.  In teaching this problem to my Evidence students, I say that jurors are compelled to rely on the competence and honesty of the "out-of-court brain" without being able to observe that brain's workings directly.

The reason that the Bryant case brings to my mind the problem of the out-of-court brain is that whether a court is developing the rule against hearsay (and its exceptions) or the proper scope of the Confrontation Clause as applied to hearsay, the out-of-court brain will almost inevitably make its way into evidence, offering up its beliefs as accurate reflections of the truth.  Even if all of what currently qualifies as "hearsay" were to be excluded without exceptions, as a matter of Evidence or Sixth Amendment law, there would continue to be witnesses who would testify about observed out-of-court behavior as a means of proving the truth of facts apparently believed by the person engaged in the behavior in question.  Witnesses will testify about screams to prove that something scream-worthy took place just prior to the screams; witnesses will testify about silence, in turn, to prove that nothing scream-worthy was happening at the time.

However strict we are about the admissibility of hearsay, then, we are ultimately left having to draw a line between reliable and unreliable out-of-court behavior, whether assertive or not, based on whether surrounding circumstances make the behavior seem trustworthy.  It is this judgment of reliability that largely drives the hearsay exceptions, and I expect that in due time, it will also be this judgment of reliability that will drive the Confrontation Clause, under which -- prior to 2004 -- hearsay uttered in the presence of particularized guarantees of trustworthiness were admitted into evidence against criminal defendants, even in the absence of an opportunity for cross-examination.