Thursday, March 4, 2010

CCA Holds: Out-of-Court Statements by Confidential Informant Violate Crawford and Confrontation Clause

In a big case for the 6th Amendment and the ever-expanding Crawford jurisprudence, the Texas Court of Criminal Appeals released its opinion in Langham v. State yesterday.

Langham v. State, NO. PD-1780-08

In Langham, the Texas Court of Criminal Appeals reversed the 11th Court of Appeals, which previously upheld the admissibility of out-of-court statements made to a detective by a confidential informant. In so doing, the 11th Court of Appeals reasoned that "[h]ere, the primary purpose behind the [out-of-court] statements of the confidential informant was not to provide testimony but to provide information to Detective Smith in order that he could obtain a search warrant." The testimony was later offered at trial through the Detective and used substantively in the State's case.

The CCA reversed, citing the 11th Court's "flawed understanding of what the Supreme Court meant" in Crawford v. Washington. Writing for the majority (6-3), Judge Price stated, "[w]e conclude that the court of appeals erred to hold that Smith's testimony recounting the statements of the out-of-court confidential informant did not violate the Confrontation Clause." "[I]t is manifest that the 'primary purpose' of Detective Smith's communication with his confidential informant was to pave the way for a potential criminal prosecution."

This case appears very fact dependant, so I'm not positive that a bright-line rule has emerged. From my point of view, however, the State is going to have an uphill battle if it wants to introduce any statements by confidential informants.

Presiding Judge Keller dissented. While she did not denounce the rule that statements from a CI would violate the CC, she would affirm this case because the substance of the statements from the CI was slight. Judges Hervey (Keller, Keasler joined) also dissented due to "reservations" regarding whether the statements of the CI were "testimonial."