The Second Circuit, in Orlando v. Nassau County District Attorney’s Office, a habeas
action, the Second Circuit held that the state trial court had erred in
allowing a police officer to testify that the defendant in a related case had
told him that Orlando had hired him to kill Bobby Calabrese. The defendant in the related case had not
testified in Orlando’s case. Orlando had
argued that allowing the police officer to testify violated his rights under
the Confrontation Clause. The district
court had held that because the testimony was not offered for the truth, but
for a collateral reason (to explain a change in Orlando’s story), allowing the
police officer did not violate Orlando’s Sixth and Fourteenth Amendment right. (The district court had issued an instruction
to the jury that the testimony should not be considered to show that Orlando
had hired the other defendant to kill Calabrese.) The district court issued a certificate of
appealability. The Second Circuit held
that the limiting instruction was not sufficient when testimony directing
incriminating Orlando was given.
The Second Circuit's decision can be found here.