The Confrontation Clause prominently embedded in the Sixth Amendment to the United States Constitution provides that a criminal defendant has a fundamental right “to be confronted with the witnesses against him.”


Fifteen years ago the U.S. Supreme Court forcefully pronounced that the “bedrock” of this constitutional guarantee prohibits prosecutors from obtaining criminal convictions based on out-of-court statements a defendant cannot challenge “in the crucible of cross examination.”


Constitutional Requirement of Confrontation


Inherent in this constitutional precept is the procedural rule that testimonial statements of witnesses not present at trial may be used only when that witness is unable to attend the trial and only if the defendant had a prior opportunity to cross-examine the unavailable witness.


Coy Jones was arrested by federal agents in Austin, Texas in 2017 and was subsequently charged through a grand jury indictment with 1) possession with intent to distribute 500 grams or more of methamphetamine; 2) conspiracy to possess with intent to distribute 500 grams or more of methamphetamine; 3) possession of a firearm by a convicted felon; and 4) possession of a firearm in furtherance of a drug trafficking crime.


Federal Drug Case Results in 300 Months in Prison


Following a four-day trial, a jury convicted Jones on all four counts. He was sentenced to the mandatory minimum of 300 months in federal prison.


A confidential informant was used during the law enforcement investigation into Jones’s charged criminal conduct. Prior to trial, Jones’s attorney moved for disclosure of the informant’s identity under Rule 403 of the Federal Rules of Evidence and also moved to have any testimony pertaining the informant be excluded from the trial based on the Confrontation Clause. The court denied the motion, explaining that the “information, I suspect, is simply going to be a suspected drug transaction” but added that “if the government is going to go further, the government needs to tell [defense] counsel.”


Prosecutorial Slight of Hand Elicits Unconstitutional Hearsay


Government prosecutors, in fact, went much further. At trial they elicited testimony from law enforcement officers about tips and other detailed information they had received from the confidential informant against Jones. Jones’s attorney objected to this testimony as hearsay, but the trial court overruled the objection on the premise that the officers’ references to what the confidential informant told them was more to explain their action rather than vouching for the truth of the informant’s information about Jones.


On May 19, 2019, the Fifth Circuit reversed Jones’s conviction.


Federal Appeals Courts Reverses Conviction


The law in the Fifth Circuit concerning the admissibility of informant statements has been clear since at least 2008: “Police officers cannot, through their trial testimony, refer to the substance of statements given to them by nontestifying witnesses in the course of their investigation, when those statements inculpate the defendant.”


The court in Jones added that, “An officer’s testimony need not repeat the absent witness’s exact statement to implicate the Confrontation Clause. Rather, ‘[w]here an officer’s testimony leads to the clear and logical inference that out-of-court declarants believed and said that the defendant was guilty of the crime charged, Confrontation Clause protections are triggered.’”


The appeals court addressed specifically not only the scope but the impact of the officers’ testimony during Jones’s trial:


“Agent Clayborne testified that he knew that Jones had received a large amount of methamphetamine because of what the confidential informant told him he heard from others. The jury was not required to make any logical inferences, clear or otherwise, to link the informant’s statement (double hearsay) to Jones’s guilt of the charged offense of methamphetamine possession. The government reinforced this connection during both opening and closing statements. In opening remarks, the prosecutor described the May 3, 2017, surveillance and stated: ‘Of course, the information the agents have at this point is that Coy Jones is now in possession of a large amount of methamphetamine, so they follow Coy Jones.’


“In closing arguments, the prosecutor told the jury: ‘And then, as you heard from Agent Clayborne when the defense asked him, how do you know the drug deal happened? Well, the informant told me. We called the informant and said, did the deal happen and he said, yep, it sure did. And that’s why they chose to follow Coy Jones because they knew he had the drugs.’”


Prosecutor Intentionally Oversteps Constitution


This is a case where federal prosecutors knew they were either skirting up to or stepping over the constitutional limits of the Confrontation Clause. And the effort by government appellate attorneys to convince the Fifth Circuit that the trial prosecutors relied on the informant’s out-of-court statements only to explain the officers’ investigative tactics and not to identify Jones failed miserably.


“In light of this testimony and argument,” the appeals court said, “we differ with the government’s assertion that the informant’s statements did not directly identify Jones. Both Agent Clayborne and the prosecution ‘blatantly link[ed]’ Jones to the drug deal and ‘eliminated all doubt’ as to who the informant was referring to.”


Court Also Played Roles in Unconstitutional Conviction


The trial court also bears significant responsibility for the reversal of Jones’s conviction. Citing a prior decision, the Fifth Circuit underscored the court’s failure:


“‘[C]ourts must be vigilant in ensuring that these attempts to ‘explain the officer’s actions’ with out-of-court statements do not allow the backdoor introduction of highly inculpatory statements that the jury may also consider for their truth.’”


The constitutional rule here is simple:  an informant’s statement to the police that the defendant committed a crime is permissible to shape the direction of an investigation, but it is impermissible for the police officer at defendant’s trial to convey the informant’s statements to the jury, “even if helpful to explain why the defendant became a suspect or how the officer was able to obtain a search warrant.”


Our adversarial trial system works only when all the parties involved, including the trial court, play by the rules. This is a shared responsibility by the prosecutor, defense counsel, and the judge.