The dilemma is simple, the law is growing more complex. A prosecutor wants to tell a rich and complete story, and asks the officer or detective how or why a suspect came to be arrested, or even how a person became the focus of police scrutiny or came to be in a photo array. Yet eliciting that information comes at higher and higher risk—the more complete the story, the more the Constitution might be violated.

How does this crop up? In a criminal case, a police officer might be asked to explain what led to the arrest of the defendant, or what caused that person to be placed in a lineup or photo identification procedure. The answer might be any of the following:

• “Upon information received, I proceeded to arrest the defendant.”
• “After interviewing witnesses to the shooting, I placed the defendant's photo into an array of photos to show to the victim.”
• “My informant told me that [name of defendant] was involved in the drug deal.”

The most recent decision to address this practice found that testimony parallel to the final example brought inadmissible hearsay into the case and, in so doing, violated the right of the accused to confront adverse witnesses. The ruling came from the U.S. Court of Appeals for the Fifth Circuit.

The case is United States v. Jones, 2019 U.S. App. LEXIS 14550, __ F.3d __, 2019 (5th Circuit, May 16). There, Coy Jones was pursued by police after seeing an apparent drug deal. The police lost sight of Jones' vehicle for a brief period, and when they found him there was no contraband in his vehicle. Police did find a firearm and drugs on the stretch of road where Jones was out of their view.

At trial, an issue arose as to why police chose to follow Jones rather than another person who was at the scene of the alleged transaction. Defense counsel sought to highlight that the police did not “know,” i.e., directly observe, that Jones had drugs. The following redirect examination occurred:

Prosecutor: [Defense counsel] also asked you, let me characterize this, sort of confronted you about when you said you knew a drug deal had gone down, but you had not seen anything. Do you recall that?

Agent Clayborne: That's correct.

Prosecutor: How did you know that a drug deal had, in fact, occurred?

Agent Clayborne: So once we saw or the other units saw what looked like a drug deal, I made a phone call to my confidential source, who then made some phone calls himself and got back to me that the deal had happened.

Prosecutor: Based on that information, you decided to stop Coy Jones?

Agent Clayborne: That's correct.

The Fifth Circuit first articulated guiding principles to balance the need for “course of conduct” testimony against the rights of the accused: A witness's statement to police that the defendant is guilty of the crime charged is highly likely to influence the direction of a criminal investigation. But a police officer cannot repeat such out-of-court accusations at trial, even if helpful to explain why the defendant became a suspect or how the officer was able to obtain a search warrant.

The circuit court distinguished between “simple background information showing the police officers did not act without reason” and out-of-court information that “points specifically to the defendant …” It also gave illustrations of instances where the testimony crossed the line, see Kizzee, 877 F.3d at 659-60 (holding that a detective's testimony that he was able to obtain a search warrant for the defendant's house after questioning a witness about drug purchases violated the confrontation clause); Taylor, 545 F.3d at 331, 336 (finding a violation of clearly established law when an officer testified that he was able to develop a suspect after an unnamed individual told him “that the perpetrator was Bruce”); United States v. Hernandez, 750 F.2d 1256, 1257 (5th Cir. 1985) (rejecting argument that hearsay evidence identifying the defendant as a drug smuggler was permissibly used “to explain the motivation behind DEA's investigation”).

Perhaps more important, the Fifth Circuit held that a limiting instruction—an explanation that jurors should use this information not to decide whether the accused was guilty but instead to understand why the police took certain steps—did not take the proof out of the realm of hearsay or otherwise cure the constitutional problem. The circuit court concluded that because hearsay detailing a defendant's criminal activity is too powerful, a limiting instruction cannot work. Likening it to the use of a codefendant's confession at trial, the c ourt stated that “some statements are so 'powerfully incriminating' that they are not cured by jury instructions.”

What does this mean in Pennsylvania? There is decisional law calling for courts to be circumspect before allowing “course of conduct” statements, in particular Commonwealth v. Palsa, 521 Pa. 113, 555 A.2d 808 (Pa.1989). However, there has been great if not excessive tolerance of “course of conduct” testimony. Illustrative is the following summary of case law approving such testimony:

In multiple cases, courts have held out-of-court statements to police officers admissible to explain the officers' course of conduct, notwithstanding the speaker's absence from the witness stand and the possibility of prejudice. See Commonwealth v. Weiss, 622 Pa. 663, 81 A.3d 767, 805-06 (Pa.2013) (in capital murder trial, state trooper's testimony that he received an anonymous telephone call that the defendant had given the victim a ride home on the night she disappeared was not inadmissible hearsay, where the commonwealth offered testimony not to prove that the defendant had given the victim a ride home but to explain what prompted trooper's to interview with the defendant); see Commonwealth v. Trinidad, 2014 PA Super 78, 96 A.3d 1031, 1036-37 (Pa.Super.2014) (in jury trial, the court properly allowed the detective to testify about a recorded statement he took from an individual concerning the victim's murder); Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032, 1035 (Pa.1980) (content of police radio call did not constitute hearsay where the commonwealth introduced a call to explain police conduct and not to prove truth of content of tape); but see Commonwealth v. Mosley, 2015 PA Super 88, 114 A.3d 1072, 1078 (Pa.Super.2015) (error to admit officer's testimony that he was responding to an informant's complaint of “drug activity” at an apartment complex, where the court failed to give he jury cautionary instruction as to its limited admissibility), see Commonwealth v. Smith, 2016 Pa. Super. Unpub. LEXIS 2841, *5-6, 156 A.3d 330. That same case also affirms that a limiting instruction will fix the problem.

Fifth Circuit precedent is not binding upon Pennsylvania courts. But the holding should cause courts to re-examine the lax approach to admissibility of such background/context testimony. Returning to the three paradigms of testimony detailed at the beginning of this article, option one ["Upon information received, I proceeded to arrest the defendant”] is unlikely to raise a constitutional claim, particularly with a limiting instruction; and the final option [“My informant told me that [name of defendant] was involved in the drug deal”] clearly will.

The second option—“After interviewing witnesses to the shooting, I placed the defendant's photo into an array of photos to show to the victim”—is where too many cases fall, and clearly raises the constitutional concerns. It is glaringly implicit—what the witnesses said was to name the suspect as involved in some way. Prosecutors should proceed with caution, using such proof only when the issue of why a person became a suspect is necessary to the case and with a strong limiting instruction; and defense counsel must raise constitutional as well as hearsay objections to such testimony.

Jules Epstein is a professor of law and the director of advocacy programs at Temple University Beasley School of Law.