Gray v. State

RAKER, Judge,

concurring, joined by WILNER & HARRELL, JJ.:

I join in the opinion of the Court reversing the judgments of conviction and in the concurring opinion of Judge Wilner. The trial court erred in failing to admit testimony regarding Brian Gatton’s statements as declarations against his penal interest pursuant to Maryland Rule 5 — 804(b)(3). The trial court also erred in refusing to permit petitioner to call Gatton to the witness stand to invoke his Fifth Amendment privilege against self-incrimination before the jury.

*566 GRAY v. STATE [ 368 Md. 529 (2002).]

The hearsay question presented in this case, the admissibility of Gatton’s declaration through the in-court witness, Evelyn Johnson, is resolved by consideration of Maryland evidentiary law and, particularly, the law of hearsay; it does not implicate the Sixth Amendment right to confrontation. In evaluating the admissibility of a hearsay statement on the basis of the declaration-against-penal-interest exception, we should avoid conflating the hearsay exception with constitutional analysis under the Confrontation Clause of the Sixth Amendment. This is so for several reasons. First, although the statement-against-penal-interest exception most often arises in the context of criminal cases, the hearsay exception applies equally in civil cases. Second, although the rule excluding hearsay and the Confrontation Clause protect similar values, they are often different in application and substance, and a higher standard as to admissibility is required under the Confrontation Clause. See Dutton v. Evans, 400 U.S. 74 , 91 S.Ct. 210 , 27 L.Ed.2d 213 (1970) (explaining that the Court has never equated the hearsay rule and the Confrontation Clause); California v. Green, 399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970) (stating that, although the hearsay rules and the Confrontation Clause protect similar values, a statement may fall within a recognized hearsay exception while its admission would nonetheless violate the Confrontation Clause); John J. Capowski, Statements Against Interest, Reliability and the Confrontation Clause, 28 Seton Hall L.Rev. 471, 494 (1997).

Because the dissent conflates the hearsay rule and the Confrontation Clause, I think it important to clarify and expand upon their distinctions. See, e.g., diss. op. at 586 n. 1 (discussing the “firmly rooted” exceptions to the hearsay rule and admissibility for the purpose of the Confrontation Clause); diss. op. at 586 (citing Simmons v. State, 333 Md. 547, 560 , 636 A.2d 463, 469 (1994), a Confrontation Clause case, and erroneously stating that “there must be a showing of particularized guarantees of trustworthiness” as the standard under Maryland Rule 5-804(b)(3)); diss. op. at 586 (proposing that the principles of the Confrontation Clause provide the basis for the additional guarantees of trustworthiness for inculpating *567 statements). I also write separately to address the Court’s reference in State v. Matusky, 343 Md. 467 , 481 n. 7, 682 A.2d 694 , 700 n. 7 (1996), to United States v. Alvarez, 584 F.2d 694, 702 (5th Cir.1978).

As to the exercise of a witness’s Fifth Amendment privilege before the jury, I agree with the majority opinion and the concurring opinion of Judge Wilner that, when the witnesses is called by the defendant, it is within the trial court’s discretion whether to allow that witness to exercise his or her Fifth Amendment right before the jury. I write separately to address the relevancy vel non of the witness’s assertion of the Fifth Amendment, the permissible scope of inquiry before the jury, and jury instructions.

I. The Declaration Against Penal Interest

. At trial, petitioner called Gatton to testify. When Gatton invoked his Fifth Amendment privilege against self-incrimination and refused to testify, petitioner called Johnson and sought to introduce through her several exculpatory statements purportedly made to her by Gatton against his penal interest. See maj. op. at 534-37 (detailing the several exculpatory statements that petitioner wished to introduce through Johnson’s testimony). Gatton’s statements were offered by petitioner as a declaration against penal interest, an exception to the hearsay rule under Maryland Rule 804(b)(3). The primary hearsay issue in this case is whether the trial judge abused his discretion in failing to admit into evidence Johnson’s testimony that Gatton had admitted to killing Bonnie Gray.

The controversy between the parties as to the corroboration requirement is whether the trial judge may take into consideration the credibility of the in-court witness. The State argues that the statements do not fit within Rule 804(b)(3) because a reasonable person in Gatton’s position would have made the statements even though they were not true. The State argues that, based on the language of Matusky, 343 Md. at 481 n. 7, 682 A.2d at 700 n. 7 (citing Alvarez, 584 F.2d at 702 ), a trial *568 court should consider any facts or circumstances that would cut against the presumption of the reliability of a statement against interest, including, but not limited to, the credibility of the in-court witness. The dissent agrees with the State. 1

Petitioner argues that statements against penal interest are simply exceptions to the prohibition against hearsay, that corroborating circumstances do not include consideration of the credibility of the in-court witness, and that consideration of credibility usurps the jury’s role as fact finder.

A declaration against penal interest is one that is contrary to the declarant’s penal interest at the time that it was made,' such that a reasonable person would not have made the statement unless that person believed it to be true. A declaration against penal interest is admissible in evidence as an exception to the rule precluding hearsay so long as the declarant is unavailable. To be contrary to a person’s penal interest, the statement must tend to subject the person to criminal liability. The theory underlying this exception is that persons ordinarily do not make statements against their interest unless they are true. See Fed. R. Evid. 804(b)(3) advisory committee’s notes; Lilly v. Virginia, 527 U.S. 116, 126-27 , 119 S.Ct. 1887, 1895 , 144 L.Ed.2d 117 (1999) (quoting Chambers v. Mississippi 410 U.S. 284, 299 , 93 S.Ct. 1038, 1047-48 , 35 L.Ed.2d 297 (1973)) (noting that the exception is founded on the assumption “that a person is unlikely to fabricate a statement against his own interest at the time it is made”); State v. Standifur, 310 Md. 3, 17 , 526 A.2d 955, 962 (1987). 2

*569 Before a statement may be admitted in evidence as a statement against interest, the court must find it to be reliable. Professor Capowski sets forth what appears to me to be an appropriate approach to resolving statement-against-interest and Confrontation Clause issues, suggesting that it “would be [more appropriate] to recognize the distinct stages or steps involved in the decisions and avoid the conflation of exception and constitutional analysis.” Capowski, supra, at 510. He writes:

“After deciding the unavailability of the declarant, a court needs to discern if any portion of a statement is against interest and, if so, which parts of the statement are against interest, which portions are self-serving, and whether there *570 are any portions that are neither against interest nor self-serving. ...

... In civil cases, the analysis should end here with the court admitting those portions that are against interest and the neutral portions that are closely related.

At this stage in criminal cases, the court should begin its Confrontation Clause analysis. The court should decide whether the statement has sufficient reliability or ‘indicia of reliability’ to be admitted absent confrontation.”

Id. at 510-511. In assessing reliability, Professor Capowski identifies three forms of reliability and different standards for applying each one, noting:

“First, there is the standard for reliability that is to be applied in establishing an [hearsay] exception. This standard, ‘exception reliability,’ requires that the type of statement have some general underpinning of reliability in logic and human experience. For example, in the case of a statement against interest, persons are unlikely to say things against their interest unless they are true.

Once an exception is established, individual statements have to be tested to see if they fit the requirements of the exception and thus have sufficient reliability to be admissible. This form of reliability, ‘admission reliability,’ involves a specific application of reliability in the case being tried or decided on appeal.

In a criminal case, a third form of reliability analysis is required because of the application of Confrontation Clause principles to the potential introduction of evidence that cannot be cross-examined.... ‘[I]ndieia of reliability’ or ‘Confrontation Clause reliability’ requires a higher standard of reliability analysis than ‘admission reliability.’ A major subpart of ‘Confrontation Clause reliability’ is ‘firmly rooted exception reliability.’ ‘No independent inquiry into reliability is required when evidence “falls within a firmly rooted hearsay exception.” ’ ”

*571 Id. at 483-84. When the Confrontation Clause is not implicated, as in the case before us, step three does not come into play. In this regard, the Supreme Court noted that:

“because hearsay statements of this sort are, by definition, offered by the accused, the admission of such statements does not implicate Confrontation Clause concerns. Thus, there is no need to decide whether the reliability of such statements is so inherently dependable that they would constitute a firmly rooted hearsay exception.”

Lilly, 527 U.S. at 130 , 119 S.Ct. at 1897 , 144 L.Ed.2d 117 .

Statements against penal interest ordinarily are offered in evidence, in criminal trials, in three circumstances: (1) as voluntary admissions against the declarant, (2) as exculpatory evidence offered by a defendant to establish that the declarant committed the offense, and (3) as evidence offered by the prosecution to establish the guilt of an accomplice of the declarant. See id. at 128 , 119 S.Ct. at 1895 , 144 L.Ed.2d 117 . In the instant case, we are concerned with the second situation.

Under Maryland Rule 5-802, hearsay is not admissible except as provided by applicable constitutional provisions or statutes. Rule 5-804(b) outlines exceptions to the hearsay rule that apply when the declarant is unavailable as a witness. One such exception is for statements against interest, which are defined as follows:

“A statement which was at the time of its making so contrary to the declarant’s pecuniary or proprietary interest, so tended to subject the declarant to civil or criminal liability, or so tended to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

*572 Maryland Rule 5 — 804(b)(3). Thus, under Rule 5 — 804(b)(3), a codification of the common law hearsay exception for declarations against interest, a hearsay statement exculpating the defendant may be admitted in evidence if (1) the declarant is unavailable, (2) the statement is genuinely adverse to the declarant’s penal interest, and (3) corroborating circumstances clearly indicate the trustworthiness of the statement.

The Circuit Court, in the case sub judice, found that the statements failed the second and third parts of the test: that the statements “would not be made by a reasonable man understanding that he was making a statement against penal interest” and that the statements were not trustworthy. Accordingly, the judge refused to admit the statements into evidence.

In this case, the threshold requirement of unavailability under the rule is not disputed and has been satisfied. Gatton, having asserted his Fifth Amendment privilege not to testify, was not available. See Green, 399 U.S. at 168 n. 17, 90 S.Ct. at 1940 n. 17, 26 L.Ed.2d 489 ; United States v. Harrell, 788 F.2d 1524 (11th Cir.1986); Nance v. State, 331 Md. 549, 572 , 629 A.2d 633, 645 (1993).

The next inquiry under the Rule, then, is whether Gatton’s statements were against his penal interest. The statements “I took care of her,” “he would take care of me just like had took care of Bonnie,” and “this is what I killed her with” amounted to admissions that he had killed the victim, Bonnie Gray. The State does not contend otherwise.

The trial court held that the statements do not fit within Rule 804(b)(3) because a reasonable person in Gatton’s position would have made the statements even though they were not true. The trial court found that Gatton in no way expected any harm from his statements because he was “high and drunk” he was speaking to “his crack-companion’s wife, a woman he had already physically attacked whom he has so far successfully cowed into silence,” and he probably could have expected a benefit from the statement — Evelyn’s silence.

*573 Gatton’s alleged statements sufficiently tended to subject him to criminal liability that a reasonable man in his position would not have made the statements unless he believed them to be true. Some of his remarks amounted to a clear admission that he killed Bonnie Gray, and others amounted to statements incriminating him in her murder. A reasonable person in Gatton’s position would have realized that comments attributed to him implicating him in Bonnie Gray’s murder would have tended to subject him to criminal liability. Even though he may have been under the influence of drugs or alcohol, his statements would be important evidence against him if he were on trial for the murder, and he had to realize the detrimental character of the statements. The trial court erred, therefore, in finding that they did not pose the sort of threat to his interest that the hearsay exception contemplates.

I am not unmindful of the circumstances under which the proffered statements were made and that Gatton may not have so readily expected his remarks to have been repeated to the police. However, the rule does not require that the witness actually be speaking to someone who could cause him to be prosecuted. See Harrell, 788 F.2d at 1527 . Furthermore, the contextual circumstances do not “so far impugn the reliability presumed from the remarks’ disserving character as to take them outside the first part of the Rule.” United States v. Barrett, 539 F.2d 244, 251 (1976). See Chambers, 410 U.S. at 300 , 93 S.Ct. at 1048 , 35 L.Ed.2d 297 (holding that a confession made “spontaneously to a close acquaintance” was sufficiently reliable); United States v. Bagley, 537 F.2d 162 (5th Cir.1976) (finding that a reasonable man would not falsely admit to the commission of serious crime to a cellmate knowing that there was a chance, even if slight, that it could lead to his conviction).

Since the statements were against Gatton’s penal interest, they were admissible if corroborating circumstances clearly indicated the trustworthiness of the statements. As I have noted, the requirement of corroborating circumstances was designed to protect against the possibility that a statement, offered by the defense, would be fabricated to exculpate the *574 defendant. I think that the factors relied upon by the trial court are better considered under the part of the rule requiring an evaluation of whether, overall, there is sufficient corroboration clearly to indicate the trustworthiness of the statement. Professor McCormick notes:

“Both the proper role for, and definition of, corroboration for statements against interest is almost hopelessly confused ....

Turning first to statements that exculpate the defendant, the federal courts have disagreed on whether the corroboration requirement applies to the veracity of the in-court witness testifying that the statement was made in addition to the clearly required showing that the statement itself is trustworthy.”

McCormick on Evidence, § 319 (John Strong, ed., 5th ed.1999). Courts have recognized that the nature of the corroboration required by Federal Rule 804(b)(3) is not precisely delineated, although some courts have identified several factors deemed relevant to determining whether sufficient corroboration exists to allow the declarations into evidence under the rule. See United States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir.1995). 3 In considering the identified factors, courts must be vigilant in evaluating the context in which a statement is offered — in particular, by whom and under what circumstances. For example, if offered by the State against the defendant, the Confrontation Clause may be implicated, *575 triggering additional and often different considerations than when a statement is offered by the defendant as a hearsay exception. See, e.g., Idaho v. Wright, 497 U.S. 805, 822-23 , 110 S.Ct. 3139, 3150 , 111 L.Ed.2d 638 (1990) (holding that courts cannot rely on corroborating evidence to conclude that a hearsay statement is trustworthy for the purposes of the Confrontation Clause). 4

It is important to note that Alvarez involved the admissibility of a hearsay statement that was inculpatory as to the accused and, as such, was a Confrontation Clause case. That issue, however, is not before us today. 5

*576 Professor McCormick sets out what I believe should be the rule when the defendant offers a statement against penal interest as an exception to the hearsay rule: “As a matter of standard hearsay analysis, the credibility of the in-court witness- regarding the fact that the statement was made is not an appropriate inquiry.” McCormick, supra, at § 319. See United States v. Katsougrakis, 715 F.2d 769, 777 (2nd Cir. 1983) (disapproving of Alvarez, 584 F.2d at 702 , and noting that “to require a preliminary assessment of the in-court witness’ credibility would, in our judgment, be a usurpation of the jury function”); United States v. Atkins, 558 F.2d 133 (3rd Cir.1977) (rejecting the credibility of an in-court witness as a consideration in whether to exclude evidence under Rule 804(b)(3) and stating that “[r]ule 804(b)(3) directs the court to the trustworthiness of the declarant, not of the witness”); United States v. Goodlow, 500 F.2d 954, 958 (8th Cir.1974) (noting, in considering the admissibility of a statement as a declaration against penal interest hearsay exception, that “[t]o reason that the credibility of these [in-court] witnesses is such that their testimony would not be believed attempts to substitute judicial discretion in an area where fact-finding preroga *577 tives control”); People v. Cudjo, 6 Cal.4th 585 , 25 Cal.Rptr.2d 390 , 863 P.2d 635, 649 (1993) (holding that the credibility of an in-court witness was not a proper consideration in the context of the admissibility of evidence offered under the declaration-against-interest hearsay exception).

As a basic hearsay matter, the witness is present in court, can be fully cross-examined as to whether the statement was actually made, and the fact-finder can and should fully evaluate the witness’s credibility. Unlike the hearsay declarant who is necessarily unavailable to testify, the in-court witness is present in the courtroom and is subject to cross-examination, enabling the jury to assess credibility as with any other witness. The admissibility of the statement should be determined under the ordinary rules of evidence and should be controlled by Rule 5-104. 6 The rules require only that the corroborating circumstances clearly indicate the trustworthiness of the statement; they need not remove all doubt with respect to the hearsay statement. See Bumpass, 60 F.3d at 1102 (citing United States v. Brainard, 690 F.2d 1117, 1124 (4th Cir.1982)). Judge Moylan, writing for the Court of *578 Special Appeals, in Jacobs v. State, 45 Md.App. 634 , 415 A.2d 590 (1980), succinctly expressed the same view as follows:

“The trustworthiness in issue in this regard is the trustworthiness of the declaration, assuming it to have been made and to have been made in the form recounted from the witness stand. The trustworthiness of the witness who serves as the mere conduit for the out-of-court declaration is, on the other hand, tested by other devices such as the oath and cross-examination at the trial itself. All too frequently, we allow our distrust of the witness on the stand to be transmuted into a mistrust of the out-of-court declaration, and this frequently subconscious transfer serves only to blur analysis.”

Id. at 643 n. 2, 415 A.2d at 595 n. 2. As Judge Niemeyer said in Bumpass , “the level of corroboration therefore must be sufficient that cross-examination would add little to test the hearsay’s reliability.” Bumpass, 60 F.3d at 1102 .

Judge Cathell, writing for the Court, has set out the circumstances that provide an assurance of reliability to justify the admissibility of the statements. I agree. Gatton surely was unavailable, and his statements were against his penal interest. The trial judge erred in considering Johnson’s credibility beyond the ordinary witness considerations under Rule 5-104. The statements were sufficiently corroborated to establish their trustworthiness. The jury should have been permitted to hear Johnson’s testimony with respect to Gatton’s statements.

II. Invocation of Fifth Amendment Privilege

I agree with both the majority and concurring opinions that it is within the discretion of the trial judge to permit a defendant to call a witness before the jury to invoke the Fifth Amendment privilege against self-incrimination. I join the opinion of the Court with the understanding that, in “single culprit crimes,” see Peter W. Tague, The Fifth Amendment: If an Aid to the Guilty Defendant, an Impediment to the Innocent One, 78 Geo. L.J. 1 , 6 (1989), a defendant is not barred, as a matter of law, from calling a witness before the *579 jury for the witness to exercise his or her Fifth Amendment right and from attempting to convince the jury that the witness’s assertion of the Fifth Amendment privilege inferentially supports his or her claim of innocence.

Judge Cathell, writing for the Court, has crafted a workable and limited exception to the general rule in criminal cases that a witness may not invoke the Fifth Amendment before the jury. I would require, however, that the defense inform the prosecution and the court of the theory of the defense, i.e., “some other dude did it,” and of the intention to call the alternate suspect as a witness. 7 I would also caution trial judges, in the exercise of their discretion in controlling the conduct of the trial, to make sure that the practice is not abused and that counsel will not be permitted to pose fact-specific questions to the witness before the jury with the sole purpose of creating prejudicial inferences from the assertion of the privilege. Counsel should not be permitted, as counsel wished to do in the instant case, to ask a long string of fact-specific questions designed to suggest to the jury that, but for the privilege, the answer to the questions would have been “yes.”

It is beyond question that it is error under the Fifth Amendment to the United States Constitution, see Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), as well as under Article 22 of the Maryland Declaration of Rights and Maryland Code (1957, 1998 Repl.Vol., 2000 Supp.) § 9-107 of the Courts and Judicial Proceedings Article, see Smith v. State, 367 Md. 348, 353-54 , 787 A.2d 152, 155 (2001), to instruct a jury in a criminal case that it may draw an inference of guilt from a defendant’s failure to testify. Maryland recognizes, however, as do many other states, that the invocation of the Fifth Amendment privilege by a party in a civil case may result in an adverse inference. See Baxter v. Palmigiano, 425 U.S. 308, 317 , 96 S.Ct. 1551, 1557 , 47 L.Ed.2d *580 810 (1976); Robinson v. Robinson, 328 Md. 507 , 615 A.2d 1190 (1992). 8 In this case, there is a significant difference — we are not talking about the defendant, but rather a witness, called to testify at the trial by the defendant.

The dissent properly points out that many jurisdictions bar the drawing of an adverse inference in any criminal case per se. There are several reasons for this view. See Tague, supra, at 13. In addition to evidentiary concerns of relevancy and prejudice, courts cite to the possibility of collusion between the defendant and the witness, symmetry between the prosecution and the defendant, 9 and a concern for the interest of the witness in not having to assert the privilege publicly. 10 See id. According to those courts, it is high drama, causing unfair prejudice, when a witness “takes the Fifth Amendment.”

In addition, there are many reasons why a witness might invoke the protection of the Fifth Amendment other than an *581 admission of guilt for the crime charged. A witness need not be guilty of any offense in order to invoke the privilege. We have held that a witness may invoke the Fifth Amendment privilege against self-incrimination if “the witness has reasonable cause to apprehend danger from a direct answer.” Choi v. State, 316 Md. 529, 536 , 560 A.2d 1108, 1111 (1989) (quoting Hoffman v. United States, 341 U.S. 479, 486 , 71 S.Ct. 814, 818 , 95 L.Ed. 1118 (1951)). The privilege is invoked properly whenever the witness’s answers “will tend to incriminate him or subject him to fines, penalties, or forfeitures.” Smith v. State, 283 Md. 187, 194 , 388 A.2d 539, 542-43 (1978) (quoting Counselman v. Hitchcock, 142 U.S. 547, 564 , 12 S.Ct. 195, 198 , 35 L.Ed. 1110 (1892)). These issues, however, can be dealt with through jury instructions. Also, the witness, when invoking the privilege, is not available for cross-examination. Of course, there are constitutional implications preventing the drawing of such an inference when the privilege is invoked by the defendant in a criminal case. See Douglas v. Alabama, 380 U.S. 415 , 85 S.Ct. 1074 , 13 L.Ed.2d 934 (1965). Although there are good reasons for precluding a witness from ever invoking the Fifth Amendment privilege before the jury, I find that there is no good basis for distinguishing between civil cases and criminal cases in which it is not the defendant who is invoking the privilege.

If the court permits a witness to invoke the Fifth Amendment before the jury, either party should be entitled to a jury instruction indicating that the invocation of the privilege against self-incrimination is not, in and of itself, evidence that the witness is guilty of a crime. Of course, counsel should be permitted to argue any appropriate inferences raised by the evidence at the trial.

Judges W1LNER and HARRELL have authorized me to state that they join in this concurring opinion.

. The dissent conflates the evidentiary basis for admitting the statements against interest and the Confrontation Clause analysis in concluding that the trial court should consider the credibility of the in-court witness when assessing the reliability of the hearsay statement.

. Dating back to the Sussex Peerage Case, 8 Eng. Rep. 1034 (1844), a declaration confessing to the commission of a crime was not admissible in evidence as a declaration against penal interest. See McCormick on Evidence, § 318 (John Strong, ed., 5th ed.1999). This rule, followed by most courts in this country, came under criticism, particularly by Professor Wigmore, who wrote:

*569 "The only practical consequences of this unreasoning limitation are shocking to the sense of justice; for, in its commonest application, it requires, in a criminal trial, the rejection of a confession, however well authenticated, of a person deceased or insane or fled from the jurisdiction (and therefore quite unavailable) who has avowed himself to be the true culprit.

... It is therefore not too late to retrace our steps, and to discard this barbarous doctrine, which would refuse to let an innocent accused vindicate himself even by producing to the tribunal a perfectly authenticated written confession, made on the very gallows, by the true culprit now beyond the reach of justice.”

5 John Henry Wigmore, Evidence § 1477 (3d ed.1940). Wigmore's view was embraced by Justice Holmes in his now famous dissent in Donnelly v. United States, 228 U.S. 243, 277-78, 33 S.Ct. 449, 461 , 57 L.Ed. 820 (1913) (Holmes, J., dissenting), a case in which the Supreme Court refused 1o recognize any penal interest exception to the hearsay rule, permitting only pecuniary and perhaps proprietary interests as sufficiently reliable to be admissible. Donnelly received a great deal of criticism and, as a result, when the Federal Rules of Evidence were drafted and under consideration by Congress, several different versions emerged providing for the admission of declarations against penal interest. The Federal Rules of Evidence, and those of most states, now permit admission into evidence of declarations against penal interest. The Supreme Court ultimately recognized, in Chambers v. Mississippi, 410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973), that "the Due Process Clause affords criminal defendants the right to introduce into evidence third parties’ declarations against penal interest — their confessions — when the circumstances surrounding the statements 'provide considerable assurance of their reliability.' ” Lilly v. Virginia, 527 U.S. 116, 130 , 119 S.Ct. 1887, 1897 , 144 L.Ed.2d 117 (1999).

. In United States v. Bumpass, 60 F.3d 1099 (4th Cir.1995), Judge Paul Niemeyer, writing for the United States Court of Appeals for the Fourth Circuit, noted that "the precise nature of the corroboration required by Rule 804(b)(3) cannot be fully described.” Id. at 1102 . He suggested, however, that factors to consider under the rule include:

"(1) whether the declarant had at the time of making the statement pled guilty or was still exposed to prosecution for making the statement, (2) the declarant's motive in making the statement and whether there was a reason for the declarant to lie, (3) whether the declarant repeated the statement and did so consistently, (4) the party or parties to whom the statement was made, (5) the relationship of the declarant with the accused, and (6) the nature and strength of independent evidence relevant to the conduct in question.”

Id.

. Again, it is important to keep in mind that the standards for admissibility under the Confrontation Clause are stricter than under the hearsay exception, requiring independent corroboration, while the hearsay exception under the rule does not. That is why it is so important to keep the analysis separate and not to use hearsay and Confrontation Clause cases interchangeably.

. Courts around the cotmtry are split as to the viability of the factor, outlined in United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978), that, before a hearsay statement is admissible under 804(b)(3), the trial court should consider as a threshold matter the credibility of the in-court witness in assessing the trustworthiness of the statement. See, e.g., United States v. Katsougrakis, 715 F.2d 769, 777 (2nd Cir.1983) (noting that "[w]e do not adopt the position taken by the Fifth Circuit [in Alvarez ] that the credibility of the in-court witness must be evaluated before the jury is permitted to hear testimony that inculpates both the out-of-court declarant and the accused”).

In Alvarez , the court "was also concerned that a failure to impose a corroboration requirement would allow statements against interest to become an easier alternative to admission of coconspirator statements, which it believed required external proof of the conspiracy.” McCormick on Evidence § 319 (John Strong, ed., 5th ed.1999). A statement made by one coconspirator during the course of the conspiracy and in furtherance thereof is admissible in evidence as a hearsay exception. See Maryland Rule 5-803(5) ("[a] statement by a coconspirator of the party during the course and in furtherance of the conspiracy”). Under Bourjaily v. United States, 483 U.S. 171, 183 , 107 S.Ct. 2775, 2782 , 97 L.Ed.2d 144 (1987), in the Confrontation Clause analysis, as a firmly rooted hearsay exception, no independent inquiry into reliability is required. See Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531, 2539 , 65 L.Ed.2d 597 (1980). Thus, if the statement in Alvarez had been admitted as a declaration against penal interest, it could, in fact, have expanded the admissibility of coconspirators’ statements to include ones made after the conspiracy ended. Thus, when offered by the State as an inculpatory statement, implicating the Confrontation Clause, *576 under those circumstances, it may well be appropriate for the court, as a threshold matter, to consider the credibility of the in-court witness in assessing the trustworthiness of the statement.

I suggest, however, that the viability of the Alvarez factor in the center of this controversy, even within a Confrontation Clause analysis, may be in serious doubt based upon the language of Justice Stevens plurality opinion in Lilly v. Virginia, 527 U.S. 116 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999). In discussing the appropriate standard of review for determining whether a hearsay statement has particularized guarantees of trustworthiness for Confrontation Clause purposes, the plurality opinion, adopting a de novo standard of review, stated:

"But the surrounding circumstances relevant to a Sixth Amendment admissibility determination do not include the declarant's in-court demeanor (otherwise the declarant would he testifying) or any other factor uniquely suited to the province of trial courts. For these reasons, when deciding whether the admission of a declarant’s out-of-court statements violates the confrontation Clause, courts should independently review whether the government's proffered guarantees of trustworthiness satisfy the demands of the Clause.”

Id. at 134 , 527 U.S. 116 , 119 S.Ct. at 1900 , 144 L.Ed.2d 117 (emphasis added).

. Maryland Rule 5-104 provides as follows:

“(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b). In making its determination, the court may, in the interest of justice, decline to require strict application of the rules of evidence, except those relating to privilege and competency of witnesses.

(b) Relevance conditioned on fact. When the relevance of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding by the trier of fact that the condition has been fulfilled.

(c) Hearing of jury. Hearings on preliminary matters shall be conducted out of the hearing of the jury when required by rule or the interests of justice.

(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter of admissibility, become subject to cross-examination as to other issues in the case.

(e) Weight and credibility. This rule does not limit the right of a party to introduce before the trier of fact evidence relevant to weight or credibility.”

. It is clear in the instant case that there was no surprise to the State that the theory of the defense was that Gatlon killed Bonnie Gray and that the defense intended to call Gatton as a witness.

. I recognize that, in Robinson v. Robinson, 328 Md. 507 , 615 A.2d 1190 (1992), and Baxter v. Palmigiano, 425 U.S. 308, 317 , 96 S.Ct. 1551, 1557 , 47 L.Ed.2d 810 (1976), the courts were dealing with a party and not merely a witness in the case.

. I do not accept the symmetry argument-that because the State cannot benefit from the inference, the defendant should be precluded from doing so. The State has the power to grant use immunity, which is not available to the defendant. See Maryland Code (1957, 1998 Repl.Vol., 2001 Supp.) § 9-123 of the Courts and Judicial Proceedings Article (authorizing the State to grant use immunity to a witness compelled to testify in a criminal prosecution or before a Grand Jury). The dissent is simply wrong in stating that "[w]hen a witness invokes his constitutional right to remain silent, he or she is no longer available to the State or the defense." Diss. op. at 601.

. The dissent overstates the witness's interest in not having to invoke the privilege and the protection that the witness may be entitled to enjoy. See diss. op. at 596-98. Although it may be embarrassing and, even under some circumstances, harmful to the witness to assert the Fifth Amendment in public (at the defendant's trial before a jury), the witness' protection is limited to the right to remain silent and to the protection against subsequent use by the prosecution against him or her at any future trial. See Peter W. Tague, The Fifth Amendment: If an Aid to the Guilty Defendant, an Impediment to the Innocent One, 78 Geo. L.J. 1 , 51 (1989).