'I’m Going to Dinner with Frank': Admissibility of Nontestimonial Statements of Intent to Prove the Actions of Someone Other Than the Speaker – and the Role of the Due Process Clause as to Nontestimonial Hearsay

A woman tells her roommate that she is going out to dinner with Frank that evening. The next morning her battered body is found along a country road outside of town. In Frank’s trial for her murder, is her statement to her roommate admissible to place Frank with her that night? Since the Court’s 2004 Crawford decision, the confrontation clause is inapplicable to nontestimonial hearsay such as this. American jurisdictions are widely divided on the question of admissibility under their rules of evidence, however. Many say absolutely not. A sizeable number unequivocally say yes. A small number say yes, but condition admissibility on the proof of corroborating evidence that Frank met her. Although this third compromise approach has much to recommend it, the author argues that, as presently framed, it violates the rule adopted in the Supreme Court’s 1990 decision in Idaho v. Wright applying the confrontation clause. The author makes several other novel arguments. First, she argues that Wright continues to apply to nontestimonial hearsay, but via the due process clause. Next she suggests that jurisdictions may constitutionally achieve the same result, however, in one of two ways: (1) they could codify the corroboration requirement in their definition of the applicable evidence rule, the state of mind hearsay exception; or (2) through their case law, they could admit the hearsay statement without requiring corroborating evidence, but invoke a corroboration requirement when evaluating the sufficiency of the evidence, for due process reasons, at the close of the case.