When Simon and Garfunkle wrote “listen to the sound of silence” they were not urging a principle applicable to hearsay analysis. But the Michigan Supreme Court took that notion to heart in a recent decision that ‘read between the lines’ and found that words never mentioned in court, but inferable from context, violate not only the rule against hearsay but, in a criminal case, the Confrontation guarantee.
For context, imagine the following testimony in a criminal trial:
Q: Officer, were there any leads on the first day after the crime?
A: No.
Q: What did you do to try and solve the case?
A: I spoke to 12 neighbors, people who were home the day of the shooting.
Q: After speaking to them what did you do?
A: I secured an arrest warrant for this defendant.
To put it mildly, one does not need mind-reading skills to know what the 12 people, or at least some of them, told the Officer – this defendant did it. But technically, no out of court statements were introduced at trial.
In People v. Washington (Mich. July 26, 2024), the Michigan Supreme Court confronted similar testimony in a case where Washington was accused of being a convicted felon in possession of body armor. Washington had crossed the border from Michigan to Canada and was caught by a Canadian official – Lavers – with the body armor. Washington was then turned over to Michigan law enforcement. Because the Canadian agent did not appear at trial, the prosecution offered the Michigan officer – Stockwell – who took Washington into custody. As the Court explained,
At trial, Officer Stockwell testified that he met Officer Lavers on the American side of the bridge and that defendant was in a police cruiser. He testified further:
Q. At some point did Officer Lavers from the Canadian services hand you any other evidence?
A. Yes, he did.
Q. What did he hand you?
* * *
A. A body armor.
* * *
Q. Now, without saying anything about what was said, the only question I have for you is were there communications between you and Officer Lavers?
A. There were.
Q. Okay. And . . . based on those communications you took custody of the Defendant?
A. Yes, we did.
Q. And you took possession of the body armor that was turned over at the same time?
A. Yes, sir.
What the jury never heard were Lavers’ words; but what was easily deduced were their “substance.” And that was “Officer Lavers’s out-of-court statement that defendant possessed the bulletproof vest when Officer Lavers encountered him.” People v. Washington, 2024 Mich. LEXIS 1434, *16
The Michigan Court, with ample support in federal court precedent, confirmed that implicit communication of the substance of an out of court statement triggers hearsay concerns. And here, because it was a criminal trial and Lavers’ words to Stockwell were “testimonial” hearsay, that veiled discussion constituted a violation of Washington’s right to confront the adverse witnesses against him. Lavers’s assertion was communicated to the jury; Lavers could not be cross-examined.
What are the lessons? First, jurors are discerning individuals who can, and will, read between the lines. Second, unspoken hearsay is still hearsay if everyone can figure it out. Third, we should not be subjecting people to trial and conviction with this backdoor, unchallengeable proof.
There may be another lesson. In some trials, Lavers’s words would have been repeated and not just alluded to, purportedly not for their truth but to explain what is called “police course of conduct” evidence, the “why” of what police did next. But, as the Michigan decision notes, that rationale should be deployed only when there is good reason, such as a claim of bad faith or ineptness in the investigation, as otherwise the questionable need for such proof is offset by the risk of unfair prejudice and occasioning a Confrontation Clause violation.
Silent hearsay is still hearsay; and a “not for the truth” end run doesn’t un-ring the hearsay bell.