The Louisiana 'Explanatory Exception': Faithfulness to Louisiana?s Hearsay Framework or Mere Storytime with the Prosecution?

• Author: Joshua P. Clayton
• Pages: 1259-1304

The Louisiana “Explanatory Exception”: Faithfulness

to Louisiana’s Hearsay Framework or Mere Storytime

with the Prosecution?

TABLE OF CONTENTS

I. Introduction ........................................................................1260

II. Anatomy of an Anecdote: What Is the Explanatory

Exception? ..........................................................................1262

A. The Rule: Hearsay ........................................................1262

B. The “Exception”: Explanation .....................................1263

C. What It Was and What It Is ..........................................1265

D. Scope of the Exception ................................................1267

1. Relevancy ...............................................................1267

2. Verbal Statements v. Conduct ................................1268

3. Constitutional Restrictions .....................................1269

4. Other Evidentiary Limitations ...............................1269

III. Louisiana’s Application of the Explanatory Exception:

A Tumultuous Tale ............................................................1270

A. The Supreme Court Trilogy .........................................1271

B. Too Much Hearsay Relevancy .....................................1274

C. Uncaging of the Beast: Inconsistent Appellate

Application ...................................................................1275

1. Blatant Explanatory Exception Abuse ...................1276

2. Specific Categories of Misuse ...............................1279

IV. Resolving the Plot’s Central Conflict: How to Legally

Apply the Explanatory Exception in Louisiana .................1285

A. Return to a Proper Relevancy Analysis .......................1286

1. Explanations of an Officer’s Conduct ....................1286

2. Explanations of the Sequence of Events ................1290

B. Perform a More Vigilant Harmless Error Analysis .....1296

C. Reformulate the Explanatory Exception ......................1301

V. Conclusion .........................................................................1303

1260 LOUISIANA LAW REVIEW [Vol. 71

I. INTRODUCTION

In the impassioned film 12 Angry Men, 12 sweating jurors

decide whether a young man will be put to death.1 As they

deliberate, more and more jurors express their reasonable doubt of

the defendant’s guilt.2 Nearing the movie’s rousing finale, Henry

Fonda’s character points out to the other jurors that he noticed that

the crucial eyewitness had marks over her nose, indicating that she

must regularly wear eyeglasses.3 The jury acquits the defendant in

light of the woman’s testimony that she looked up from her bed to

see the murder out of her window; she could not have been certain

of the perpetrator’s identity because she did not have time to place

her eyeglasses on her face.4 This classic film demonstrates one fine

point, among others: the jury takes everything into account in

rendering its verdict.

Imagine a jury considering a police officer’s testimony about

her first “big break” in an investigation. The prosecutor asks

Officer Mary McFadden what a particular informant told her about

the defendant. Officer McFadden replies that the informant said

that he had known the defendant for years as a partner in crime and

that the defendant was the one who committed the criminal act.

Normally, defense counsel would object on hearsay grounds

because Officer McFadden testified to an out-of-court statement

not made under oath and used to prove the defendant’s guilt.5 The

Louisiana explanatory exception would purport to admit the

statement, not to prove the defendant’s guilt, but to show Officer

McFadden’s valid reason for suspecting the defendant to be the

perpetrator.6 The explanatory exception is a principle that allows a

testifying law enforcement official like Officer McFadden to refer

to out-of-court statements made to the official to explain the

criminal investigation or the officer’s conduct.7 Even though the

judge who permits the use of the explanatory exception might

instruct the jury to only consider the out-of-court statement as

relevant to the officer’s conduct, the judge cannot “unring the

Copyright 2011, by JOSHUA P. CLAYTON.

1. 12 ANGRY MEN (United Artists 1957).

2. Id.

3. Id.

4. Id.

5. See discussion infra Part II.A.

6. See discussion infra Part II.B.

7. See infra text accompanying note 50.

2011] COMMENT 1261

bell”8—an out-of-court speaker not under oath said the defendant

is guilty.

The Louisiana Code of Evidence (LCE) is designed to ensure

that jurors take appropriate evidence into account,9 including

police testimony that is omnipresent in criminal trials.10 Louisiana

appellate courts regularly violate the LCE through winking at

improper use of the explanatory exception in the trial courts,

allowing jurors to take improper police testimony into account.11

Prosecutorial abuse of the exception by engaging in illegitimate

storytelling through hearsay statements is not as much to blame as

is the courts’ unfaithfulness to Louisiana’s statutory hearsay

framework. Trial courts and reviewing appellate courts have yet to

apply the exception in a way that properly balances the

prosecution’s need to present evidence with the defendant’s

statutory right to not have inadmissible hearsay evidence heaped

up against him.

This Comment explains how Louisiana courts should properly

apply the explanatory exception. Part II describes the explanatory

exception through examining its adoption from the federal

jurisprudence, its relation to the Louisiana rule of hearsay, and its

potentially limited use. Part III demonstrates the illicit judicial use

of the explanatory exception by showing how the courts have

refused to implement Louisiana Supreme Court directives. Part III

also illustrates specific areas of abuse by the appellate courts—

allowing testimony about informants’ statements, testimony to

explain the reason for the defendant’s arrest, testimony

establishing a sequence of events, and testimony as to conduct that

is an assertion. Part IV proposes solutions to restore legality to the

application of the exception: (1) limiting the use and content of

officers’ testimony, (2) performing a vigilant harmless error

analysis, and (3) reformulating the exception for logical

consistency. This Comment concludes that if the explanatory

exception is to have continued existence, the judiciary should give

less weight to prosecutorial storytelling and more attention to

establishing proper norms for prosecutorial questioning of police

witnesses.

8. MICHAEL H. GRAHAM, HANDBOOK OF FEDERAL EVIDENCE § 105:1 (6th

ed. 2006).

9. See LA. CODE EVID. ANN. art. 103(C) (2006) (inadmissible evidence

should not be suggested to the jury by any means).

10. See infra notes 193–94 and accompanying text.

11. See discussion infra Part III.C.