The Fifth Circuit reversed a defendant’s conviction after finding that the Government violated his rights under the Confrontation Clause when it presented testimonial hearsay from two non-testifying witnesses that alleged the defendant sold drugs. In doing so, the Fifth Circuit recounted its recent cases involving Confrontation Clause challenges and how the government “has repeatedly failed to take the lesson.”
In particular, the Court stated:
If the government elects to introduce out-of-court statements to attempt to provide context for its investigation, its use must be “circumspect” and “limited.” ….
It is not “circumspect” to introduce a statement accusing the defendant of selling “multiple ounces” of meth. Nor
is it “limited” to give a play-by-play account of the defendant selling meth to a confidential informant. If those uses have any probative value in explaining why police began an investigation, they “pale in comparison to the risk that
the jury will consider [the statements for their] truth.”
Here, the jury heard the lead investigator testify regarding the use of a confidential source/informant for a controlled buy, including statements the confidential source made regarding the defendant’s drug sales and statements by another officer who was describing what the CS and the defendant were doing. The trial court erred in allowing those statements in “to detail the investigation.”
On appeal from Western District of Texas
Opinion by Smith, joined by Costa and Wilson
Click here to read the opinion.