Gray v. State

BATTAGLIA, Judge,

dissenting.

Without question, the majority and I are on opposite ends of the spectrum in this case. Where the majority believes the trial court has no discretion to consider the reliability of an in-court witness to an out-of-court statement against penal interest, I believe the court may consider, and properly did consider, the in-court witness’s credibility in concluding that the statement itself was untrustworthy. Where the majority believes that a trial court should have discretion in determining whether a witness may be called to the stand for the sole purpose of invoking his or her right to remain silent, I believe a court has no discretion and should never knowingly or *584 intentionally permit a witness to be used for the sole purpose of invoking his or her right to remain silent before a jury. My differences with the majority are not easily bridged, and therefore, I respectfully dissent.

I. Statements Against Penal Interest — Discretion of the Trial Court . *

With respect to the portion of the majority’s opinion regarding the statements against penal interest, there exist three grounds for my dissent. First and foremost, I do not believe that the majority has shown the proper and required deference to the trial court’s evidentiary ruling in this case. Second, contrary to the majority’s view, I believe that in assessing the trustworthiness of the declaration against penal interest, the credibility of the in-court speaker of the statement is a factor inherent in the determination of the statement’s reliability. Third, while the majority and I agree that the Confrontation Clause and other related principles provide the bases for the additional guarantees of trustworthiness for statements which inculpate the accused, I believe that the majority disregards the fact that the language of Rule 5-804(b)(3), itself, provides the basis for the requisite additional guarantees of trustworthiness for statements which exculpate the accused.

A. The Standard of Review — Deference to the Trial Court’s Evidentiary Rulings

Evidentiary rulings are within the domain of the trial judge, and should not be disturbed unless clear error is found. See Merzbacher v. State, 346 Md. 391, 404 , 697 A.2d 432, 439 (1997)(stating that the admissibility of evidence is within the “considerable and sound discretion of the trial court”). The standard of review, then, is particularly deferential when an appellate court considers issues involving the propriety of admitting, or not admitting, evidence at a trial. See Void v. State, 325 Md. 386, 393 , 601 A.2d 124, 127 (1992) (affirming that trial judges are afforded “broad discretion in the conduct *585 of trials in such areas as the reception of evidence”)(quoting McCray v. State, 305 Md. 126, 133 , 501 A.2d 856, 860 (1985)).

Overturning evidentiary rulings cannot simply be a matter of disagreement with the trial judge in the outcome at which he or she arrived. The trial court must have unequivocally abused its discretion by basing its rulings on factual findings which were clearly erroneous or facially incorrect legal postulates. See Williamson v. United States, 512 U.S. 594, 604 , 114 S.Ct. 2431, 2437 , 129 L.Ed.2d 476, 486 (1994)(stating that the trial court’s determination on whether a statement should be admitted under the statement against penal interest hearsay exception is fact-intensive); State v. Booze, 334 Md. 64, 68 , 637 A.2d 1214, 1216 (1994)(explaining that a trial judge’s rulings regarding the conduct of trials, including that which constitutes rebuttal testimony “may be reversed only when it constitutes an abuse of discretion, i.e., it has been shown to be both ‘manifestly and substantially injurious’ ”)(quoting Mayson v. State, 238 Md. 283, 289 , 208 A.2d 599, 602 (1965)). Accordingly, in our appellate review, we generally extend the trial court great deference in determining the admissibility of evidence and will reverse only if a clear abuse of discretion has been shown. Robinson v. State, 348 Md. 104, 121 , 702 A.2d 741, 749 (1997) (referring to evidentiary determinations regarding relevancy). It is, in part, in accordance with and pursuant to the deferential standard of review required of appellate courts that I differ from the majority’s decision today.

Pursuant to Maryland Rule 5-802, hearsay generally is inadmissible at trial unless the statement qualifies as a recognized exception to the hearsay rule. Maryland Rule 5-804(b)(3) recognizes declarations against penal interest as a hearsay exception if the declarant, in this case Gatton, is unavailable and the trial court finds the statement to be reasonably trustworthy. 1 Specific to the hearsay exception employed in this case, the trial judge has a duty to evaluate *586 the trustworthiness of the statement; stated differently, whether the evidence is sufficiently reliable for admissibility is a factual determination within the sound discretion of the trial judge. See State v. Standifur, 310 Md. 3, 19-20 , 526 A.2d 955, 963 (1987); see also Powell v. State, 324 Md. 441, 453 , 597 A.2d 479, 485 (1991). Our brethren in the Court of Special Appeals have correctly stated that when considering the declaration against penal interest exception to the hearsay rule, trial courts must make a factual determination concerning whether the statement is trustworthy or “sufficiently reliable for admissibility.” See Wilkerson v. State, 139 Md.App. 557, 577 , 776 A.2d 685, 697 (2001); see also Jacobs v. State, 45 Md.App. 634, 653 , 415 A.2d 590, 600 (1980)(stating that “when dealing with the rule against hearsay and [the declaration against *587 penal interest] exception[ ] ... admissibility is a question addressed exclusively to the discretion of the trial judge”). Similarly, decades earlier in Brady v. State, 226 Md. 422 , 174 A.2d 167 (1961), aff'd, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), Chief Judge Bruñe, speaking for this Court stated, “[t]o what extent a confession or admission of a third party is free of collusion and bears the indicia of trustworthiness is a question which we think should be entrusted in the first instance to the sound discretion of the trial judge.” 2 Id. at 429, 174 A.2d at 171 . As discussed hereinafter, I believe the trial judge was thorough and thoughtful in his discussion of, and rulings on, Gatton’s statements. In the absence of an apparent abuse of discretion, I am unwilling to reverse the trial court’s evidentiary rulings.

B. Assessing the Reliability of the In-Court Speaker of a Declaration Against Penal Interest Which Exculpates the Accused

In Standifur, supra, we articulated a test by which trial courts could determine whether to admit statements under the *588 statement against penal interest hearsay exception. Once the unavailability of the declarant is established, 3 the court must:

carefully consider the content of the statement in the light of all known and relevant circumstances surrounding the making of the statement and all relevant information concerning the declarant, and determine whether the statement was in fact against the declarant’s penal interest and whether a reasonable person in the situation of the declarant would have perceived that it was against his penal interest at the time it was made.

Id. at 17 , 526 A.2d at 962 (emphasis added). The trial court, in this case, ruled that Gatton’s out-of-court statements, i.e., “I took care of her [Bonnie]” and that “I’ll take care of you [Evelyn] like I took care of Bonnie,” were, in fact, declarations against penal interest in that they may involve substantial exposure to criminal liability or have probative value in a trial against the declarant. The trial court did not believe, however, that a reasonable person in the declarant’s shoes would have believed the statement to be against penal interest. See Standifur, 310 Md. at 13 , 526 A.2d at 960 (stating that “[t]he more important criterion is that a reasonable person in the situation of the declarant would have perceived the statement as disserving at the time he made it”)(emphasis added). The court reasoned that Gatton’s statements, which were made while he was in altered states due to alcohol and drug use,' 4 were more likely to have been “bravado designed to bolster his threat” against Evelyn to keep quiet about Gatton’s rape of Evelyn a few days earlier. Concluding that Gatton’s statements were made in an intoxicated state, and that Gatton *589 anticipated that his statement would result in some benefit, i.e., Evelyn’s silence, rather than harm to himself, the court determined that a reasonable person in Gatton’s circumstances could not have perceived that the statement was against his penal interest at the time it was made. 5

As the Standifur Court pronounced, a trial court’s inquiry does not end there. After considering whether the statement was both facially and objectively a declaration against penal interest, the court must also consider:

whether there are present any other facts or circumstances, including those indicating a motive to falsify on the part of the declarant, that so cut against the presumption of reliability normally attending a declaration against interest that the statements should not be admitted.

Id. at 17 , 526 A.2d at 962 (emphasis added). These considerations conform to the last line of Maryland Rule 5-804(b)(3) which limits the admissibility of particular declarations against interest. A declaration which tends to exculpate the defendant and expose the declarant to criminal liability “is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Md. Rule 5-804(b)(3). Thus, the default rule is that statements which exculpate the defendant, and inculpate another, are inadmissible and the burden is on the proponent “to establish that it is cloaked with *590 indicia of reliability ... [which] means that there must be a showing of particularized guarantees of trustworthiness.” Simmons, 333 Md. at 560, 636 A.2d at 469 (quoting Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531, 2539 , 65 L.Ed.2d 597, 608 (1980)(intemal quotations omitted)).

We have not, until today, been presented with an issue concerning the propriety of a trial court’s exclusion of a declaration against interest based largely on the “trustworthiness” requirements of Rule 5-804(b)(3). We have, however, discussed the factors which some courts employ in determining whether a declaration against interest is sufficiently corroborated to be deemed trustworthy. In State v. Matusky, 343 Md. 467 , 682 A.2d 694 (1996), we cited the factors used by the Fifth Circuit Court of Appeals:

(1) whether there is any apparent motive for the out-of-court declarant to misrepresent the matter, (2) the general character of the speaker, (3) whether other people heard the out-of-court statement, (4) whether the statement was made spontaneously, (5) the timing of the declaration and [(6)] the relationship between the speaker and the ... [declarant].

Id. at 482 n. 7, 682 A.2d at 701 n. 7 (quoting United States v. Alvarez, 584 F.2d 694 , 702 n. 10 (5th Cir.1978)). As the Court of Special Appeals correctly noted, the trial court performed a factor-by-factor analysis of Gatton’s out-of-court statement in order to determine its trustworthiness pursuant to the factors we furnished in Matusky. See Gray v. State, 137 Md.App. 460, 476-77 , 769 A.2d 192, 201 (2001). The trial court concluded that: (1) Gatton had a motive to misrepresent the matter to Evelyn in that Gatton wanted to induce Evelyn’s silence concerning the fact that Gatton had allegedly raped Evelyn; thus, regardless of whether Gatton had actually “taken care of Bonnie,” Gatton wanted to effectively threaten Evelyn; (2) Evelyn’s character was questionable 6 — she was an admitted *591 crack user and gave testimony that was “self-contradictory, confused, inexact, and incredible;” she failed to disclose Gat-ton’s declaration against interest until nearly two years after the statements were allegedly made; prior to her “disclosure,” Evelyn repeatedly denied having any knowledge about Gatton, and only came forward under circumstances in which she may be highly motivated to fabricate Gatton’s statements; (3) the statement was heard only by Evelyn; (4) the statements were spontaneous; (5) Evelyn’s testimony about the timing of when the statements were made was unclear; and (6) Gatton and Evelyn’s relationship was not one of mutual confidantes, rather, Gatton’s motivation to speak to Evelyn was only to induce her silence. After thoroughly analyzing and balancing these factors, the court found these circumstances to be a greater indicia of the untrustworthiness of the statements, rather than supportive of its reliability. Concluding that the statements were inherently untrustworthy, the trial court ruled the statement to be inadmissible.

The petitioner in the case sub judice argues, and the majority apparently agrees, that the factual findings made by the trial court with respect to these six factors were clearly erroneous. The petitioner relies predominantly on the fact that the trial court considered the credibility of Evelyn in its determination that the declaration was untrustworthy and asserts that such a consideration is improper for a trial judge and should be left to the province of the jury. The trial court, in this case, considered several factors, one of which was the character of the speaker. In so doing, the trial court concluded that it “had serious doubts about whether the statement was in fact made, a concern that also cuts against its admissibility.” 7

*593 Generally speaking, the issue of credibility of a witness is an issue within the province of the finder of fact. When the issue is the trustworthiness of the hearsay statement against penal interest, however, the trial judge may consider, as one of several factors, the credibility of the witness as well. See United States v. Bagley, 537 F.2d 162, 167 (5th Cir.1976); see also United States v. Satterfield, 572 F.2d 687, 692 (9th Cir.1978), cert. denied, 439 U.S. 840 , 99 S.Ct. 128 , 58 L.Ed.2d 138 (1978)(discussing in dicta some of the justifications for considering the trustworthiness of the witness when determining whether the admit the hearsay statement). This is not to say that the court is permitted to exclude testimony solely on the basis of the lack of credibility of the witness; credibility of the speaker should be a consideration only to the extent that it influences the trustworthiness of the statement itself i.e. whether the statement was made or the actual substance of the statement itself. It is the statement itself that is in contention; thus, a court must affirm the statement’s trustworthiness prior to allowing a jury to hear the declaration. When attempting to determine the actual content of the declaration or whether a hearsay statement was made, it is both natural and necessary for the trial court to consider the veracity of the person purporting to have heard, and now testifying to, the questionable and inherently unreliable statement. See Lee v. Illinois, 476 U.S. 530, 543 , 106 S.Ct. 2056, 2063 , 90 L.Ed.2d 514, 528 (1986)(stating that hearsay evidence that does not fall within firmly rooted hearsay exceptions is *594 ' presumptively unreliable and must be excluded absent “particularized guarantees of trustworthiness”)(emphasis added)(quoting Ohio v. Roberts, 448 U.S. at 66 , 100 S.Ct. at 2539 , 65 L.Ed.2d at 608 ). As the Court of Specials Appeals properly noted, “especially in cases ... in which there is a dispute as to whether the statement was made at all and not only whether, if made, it affords a basis for the matter asserted in it, common sense dictates that the credibility of the in-court witness to whom the out-of-court declarant ostensibly made the statement is a necessary consideration.” See Gray, 137 Md.App. at 479 , 769 A.2d at 203 . 8 When a trial court considers whether the proffered statement was actually made, a court should not be forced to ignore apparent contradictions in the witness’s testimony or the circumstances surrounding the witness’s disclosure of the declaration, considerations which fall under the “general character of the speaker” factor in Alvarez . The Alvarez factors, favorably noted by this Court in Matusky , adequately outline those considerations, as required by Rule 5-804(b)(3) for hearsay statements offered to exculpate the accused, which a trial judge should, and did in this case, make in determining a declaration’s trustworthiness. 9

*595 Such an evaluation does not impede the jury from performing its credibility assessment once the witness takes the stand, rather it ensures that the declaration, if admitted, has been deemed sufficiently trustworthy by a trial court in exercise of the full discretion afforded it. See United States v. Knox, 124 F.3d 1360, 1363 (10th Cir.1997)(stating that “[a]ppellate review is particularly deferential where an evidentiary ruling concerns the admission of alleged hearsay evidence”). When the question of the “credibility” of a hearsay statement requires a hearing outside the presence of the jury and a ruling by the trial court on its admissibility, such a question may result in a two-fold “credibility” determination: as a threshold matter as to admissibility, the trial judge will rule on the trustworthiness of the statement, which may, as part and parcel of the determination, involve considerations of the general character of the speaker, and the jury will, again, weigh the credibility of the testimony of the speaker, should the statement be determined admissible. As the Court of Special Appeals correctly points out:

It often is the role of the trial court in ruling on the admissibility of evidence to make factual findings. In ruling on motions to suppress evidence, for example, the trial court takes evidence, makes factual findings, including credibility assessments, and applies the law to the findings of fact. The trial court’s role as fact-finder in that context does not invade the province of the jury. Indeed, as mentioned earlier, the Supreme Court has described the inquiry that a trial court makes in deciding whether a statement qualifies as one against penal interest as “fact-intensive.” Williamson, 512 U.S. 594, 604 , 114 S.Ct. 2431, 2437 , 129 L.Ed.2d 476, 486 (1994).

Gray, 137 Md.App. at 480 , 769 A.2d at 203 . The evidentiary ruling entrusted to the trial court with respect to the admissibility of a declaration against penal interest does not prohibit a jury from conducting its own credibility assessment should *596 the statement itself meet the requisite requirements of trustworthiness.

C. Rule 5-804(b)(3) Requires Additional Guarantees of Trustworthiness for Statements Which Exculpate the Accused

As the majority correctly acknowledges, the Matusky opinion notes that “when a declaration against interest of a defendant is at issue, the confrontation clause requires additional assurances of reliability before such declarations against interest should be admitted.” See maj. op. at 538. (emphasis omitted) I do not disagree with this principle. The Confrontation Clause does, indeed, require courts to ensure the reliability and trustworthiness of statements which are inculpatory against the defendant but made by another unavailable declar-ant. See Matusky, 343 Md. at 481 n. 7, 682 A.2d at 700 n. 7. That principle, however, does not preclude, and should not preclude, our Court from holding that Rule 5-804(b)(3) itself requires additional assurances of reliability when the statement against interest exculpates the defendant and inculpates another — the Rule specifically provides that such a statement is inadmissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. See Md. Rule 5-804(b)(3). If the intent is not vivid enough by the language of the Rule itself, I point also to the Reporter’s Note to Maryland Rule 5-804(b)(3), which specifically states that, “[t]he [Evidence] Subcommittee [of the Rules Committee] notes that, under this exception, the statements that are scrutinized most closely and viewed with most suspicion are (A) statements tending to expose the declarant to criminal liability and offered to exculpate the accused; and (B) statements against the interest of both the declarant and another person and offered to prove the other person’s acts.” Despite the clear intention of the Rules Committee, the majority prefers to ignore part (A) of the Committee’s concerns.

Certainly, as the majority notes, the Matusky and Standi-fur courts were concerned with the reliability of hearsay statements, or portions of hearsay statements, which inculpat *597 ed the accused. This concern should not be to the exclusion of a second and equally valid concern regarding hearsay statements offered by the defense to exculpate the accused and inculpate another. Both concerns may co-exist. The Rule itself provides the basis for additional guarantees of trustworthiness when the statement offered exculpates the accused and inculpates another, and while the Rule is silent as to statements which inculpate the accused, other principles, such as the Confrontation Clause, provide the basis for the additional guarantees of trustworthiness for inculpating statements. See Lilly v. Virginia, 527 U.S. at 127, 130, 119 S.Ct. at 1895, 1897, 144 L.Ed.2d at 128, 130 (distinguishing the triad of statements against penal interest § (1) voluntary admissions offered against the declarant-defendant; (2) exculpatory evidence offered by a defendant claiming that the declarant committed the offense; and (3) evidence offered by the prosecution to establish guilt of an alleged accomplice of the declarant, and noting that unlike the first and third categories, the second category does not implicate Confrontation Clause concerns).

In summary, to conclude that excluding the alleged statement against interest was incorrect, an appellate court must hold that the findings of fact supporting the trial court’s decision were clearly erroneous or that the trial judge based his decision on incorrect principles of law. In my view, neither of these circumstances exists. The trial court’s factual findings appear sound and judicious, and the law upon which the court based its rulings is correct. Standards of review, which define the degree of authority shared by or granted to a judicial entity, are developed and utilized to prevent that which occurred today. The majority’s conclusion that the trial court abused its discretion is unjustified — the trial court employed correct legal postulates and its factual findings cannot be said to be clearly erroneous — and results in an over-extension of appellate authority. The lack of deference to the trial court and the lack of merit in its legal arguments makes the majority appear more like a thirteenth juror than an appellate court.

*598 II. A Witness’s Invocation of the Right to Remain Silent Before a Jury

I cannot, in good conscience, join a decision which effectively condones the use of a witness’s invocation of his right to remain silent to purposely create an adverse inference of guilt against the witness in the minds of the jury. This is a matter which cannot fall, as the majority asserts, under a trial court’s discretionary authority. Courts should, to every extent possible, protect the right to remain silent from adverse inferences of guilt by preventing a witness from taking the stand for the sole purpose of invoking his or her right to remain silent before the jury. The affirmation of this vigilance by the United States Supreme Court in Boyd v. United States, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 , (1886), is eloquent in this regard:

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

Id. at 635 , 6 S.Ct. at 535 , 29 L.Ed. at 752 (emphasis added). We are to be vigilant in our protection of the constitutional rights of citizens, not just of defendants; and today’s majority opinion both unnecessarily and abruptly drains the constitutional right to remain silent of the important principle that adverse.inferences should not be drawn from invocation of this right. The Fifth Amendment of the United States Constitution 10 and Article 24 of the Maryland Declaration of Rights 11 *599 provide a right, sacrosanct in our criminal justice system. By permitting, if not encouraging, the use of one’s invocation of the right to remain silent to create an adverse inference of guilt, the majority today performs, in the Supreme Court’s words, “the obnoxious ... in its mildest and least repulsive form....” Boyd, 116 U.S. at 635 , 6 S.Ct. at 535 , 29 L.Ed. at 752 .

Our Court has been steadfast in protecting the invocation of the privilege against self incrimination against the presumptions that are often inherent in such invocation. Smith v. State, 367 Md. 348, 351 , 787 A.2d 152, 153 (2001); Woodson v. State, 325 Md. 251, 265 , 600 A.2d 420, 426 (1992); Booth v. State, 306 Md. 172, 226-27 , 507 A.2d 1098, 1126 (1986)(Eldridge, J., concurring in part, dissenting in part), cert. granted, in part, 479 U.S. 882 , 107 S.Ct. 269 , 93 L.Ed.2d 246 (1986), and vacated, in part, 482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987); Littreal v. Redwine, 252 Md. 662, 668 , 250 A.2d 894, 897 (1969); Veney v. State, 251 Md. 159, 179 , 246 A.2d 608, 620 (1968), cert. denied, 394 U.S. 948 , 89 S.Ct. 1284 , 22 L.Ed.2d 482 (1969). We cannot admonish courts and practitioners for purposely creating adverse inferences regarding a defendant’s invocation of his right to remain silent, and yet effectively encourage those very inferences by allowing witnesses to take the stand for no other purpose but to invoke the right to remain silent in front of the jury. Nor can we expect jury members to distinguish between the (intentionally sought) adverse inferences created by a witness’s invocation of the right to remain silent and the adverse inferences, which we caution against, created by a defendant’s invocation of the right to remain silent.

Granted, there may be occasions where a witness, unbeknownst to the State or defense counsel, decides to invoke his right to remain silent on the stand. The procedure for handling such occurrences, however, has long been estáb- *600 lished. See Richardson, v. State, 285 Md. 261, 265 , 401 A.2d 1021, 1024 (1979)(stating that when a sworn witness invokes his right to remain silent in front of the jury, the jury should be dismissed and the trial court should “determine whether the claim of privilege is in good faith or lacks any reasonable basis”)(quoting Midgett v. State, 223 Md. 282, 289 , 164 A.2d 526, 530 (1960)). In determining whether a witness’s invocation of his/her right to remain silent is justified, a court is required to question the witness outside the presence of the jury, see Midgett, 223 Md. at 289 , 164 A.2d at 529 ; thereby minimizing to the extent possible, any adverse inferences that may result from the invocation. I agree with the majority’s recitation of the proper procedure for determining whether a witness may invoke his right to remain silent. See maj. op. at 550-54.

I further agree with the majority’s recitation of the proper considerations for determining whether a witness is entitled to invoke the privilege against incrimination. We have utilized, on countless occasions, the Supreme Court’s decree that invocation should be protected “where the witness has reasonable cause to apprehend danger from a direct answer ... it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman v. United States, 341 U.S. 479, 486-87 , 71 S.Ct. 814, 818 , 95 L.Ed. 1118, 1124 . As we articulated in Bhagwat v. State, 338 Md. 263 , 658 A.2d 244 (1995), a witness is entitled to invoke the privilege against self-incrimination when a reasonable basis for the invocation exists and the privilege is invoked in good faith. Id. at 272 , 658 A.2d at 248 . See also Adkins v. State, 316 Md. 1, 6-7 , 557 A.2d 203, 205-06 (1989); Vandegrift v. State, 237 Md. 305, 309 , 206 A.2d 250, 253 (1965) (stating that “[t]he test is whether the State’s Attorney calls the witness for the effect of the claim of privilege on the jury”). The majority and I agree that the trial court, in this case, conducted the proper procedure and employed the correct legal standard in determining whether Gatton had a reason *601 able and good faith basis for invoking his right to remain silent.

My departure from the majority opinion stems from the majority’s granting of discretionary authority to trial courts in an area where I believe none should exist. 12 The sanctity of the right to remain silent is not dependent upon whether the party calling the witness is the defense or the State or whether the use of a witness’s invocation of the right to remain silent prejudices the defendant — i.e., it is acceptable to use the adverse inferences from a witness’s invocation of the right to remain silent if it benefits the accused, but unacceptable if it prejudices the accused. See Vandegrift, 237 Md. at 308-09 , 206 A.2d at 252 (describing the requirements for prejudicial error when a State witness invokes the right to remain silent). Not only is this anathema to our roles as guarantors of the civil liberties of our State citizenry, but there is far more at stake than the mere potential prejudice to an accused. The integrity of the constitutional right to remain silent is undermined when trial courts are forced to condone or even encourage an adverse inference from the invocation of that right when it benefits a defendant, but are required, often simultaneously, to discourage that same adverse inference each and every other time. We have tried valiantly throughout this Court’s history to curb the adverse inferences that naturally result from one’s invocation of his right to remain silent. See Lakeside v. Oregon, 435 U.S. 333 , 340 n. 10, 98 S.Ct. 1091 , 1095 n. 10, 55 L.Ed.2d 319, 325 (1978) (explaining that “[t]he layman’s natural first suggestion would probably be *602 that the resort to privilege in each instance is a clear confession of the crime”) (quoting 8 Wigmore, Evidence § 2272, p. 426 (J. McNaughton rev. 1961)); Ullmann v. United States, 350 U.S. 422, 426 , 76 S.Ct. 497, 500 , 100 L.Ed. 511, 518 (1956) (acknowledging that “[t]oo many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of a crime or commit perjury in claiming the privilege”). In fact, it is because the exercise of the right to remain silent often carries with it overtones of adverse inferences, standard jury instructions in this State and others direct the jury not to make such inferences from the failure to testify. See Maryland Criminal Pattern Jury Instructions, 3:17. Yet today, the majority devalues our resolute stance on impermissible inferences on an invocation of the right to remain silent because “a defendant is entitled to have his defense fully presented to the jury.” See maj. op. at 550.

The defendant, indeed, is entitled to present his or her defense; I disagree, , however, that the petitioner’s right was impeded by the court’s refusal to allow Gatton to invoke his right to remain silent before the jury. In fact, I do not believe that the mere ability to present a witness for the sole purpose of invoking the privilege against self-incrimination before the jury is an essential component of any defense, which is why, in part, I do not believe that a court should have discretion in this matter. The United States Supreme Court described the right to present a defense as including:

[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary ... the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

Washington v. Texas, 388 U.S. 14, 19 , 87 S.Ct. 1920, 1923 , 18 L.Ed.2d 1019, 1023 (1967). A close analysis of some of the *603 facets of presenting a defense, as articulated by the Supreme Court, demonstrates that in refusing to allow a witness who invokes his right to remain silent to take the stand for the sole purpose of making that invocation in the presence of the jury, a court is not depriving a defendant of the ability to present a defense. A defendant cannot be deprived of the right to offer testimony of witnesses because a witness who properly invokes his right to remain silent will not offer testimony. Nor is the defendant deprived of the right to present his version of the facts, as the exclusion of a self-declared mute witness does not alter the other methods (witnesses, circumstantial or concrete evidence) available to the defendant in order to establish reasonable doubt in the minds of the jurors that “someone else did it.” Nor is the defendant deprived of the right to present his own witnesses to establish a defense; the natural caveat to presenting any witness being that, to present a witness, the witness must be available. When a witness invokes his constitutional right to remain silent, he or she is no longer available to either the State or the defense.

The majority instructs trial courts to determine “whether sufficient evidence has been presented, believable by any trier of fact, of the possible guilt of the witness the defendant wants to cause to invoke his Fifth Amendment privilege before the jury.” Maj. Op. at 558. This strikes me as self-contradicting. The majority argues that the defendant’s right to present a defense could be hindered without a witness’s invocation of his privilege against self-incrimination before the jury, yet requires the defendant to present “sufficient evidence” to support a reasonable belief that someone else might have committed the crime before he or she can call the “silent” witness to the stand. A defendant’s ability to present a defense cannot be so impeded by the absence of the “silent” witness, or the adverse inferences therefrom, if he or she is able to procure sufficient evidence that someone else committed the crime without that “silent” witness. Stated differently, the majority believes that sufficient evidence warrants the use of a silent witness for the sole purpose of creating an adverse inference because a defendant’s right to present a defense is otherwise *604 hindered. That sufficient evidence exists, in my view, however, confirms that permitting the purposeful generation of an adverse inference from a witness’s exercise of his or her constitutional right to remain silent, based largely on notions that a defendant’s right to present a defense would otherwise be impeded, is completely without merit. Before the majority would permit the otherwise impermissible (i.e., the adverse inference from the exercise of one’s right to remain silent), sufficient evidence is needed; yet because sufficient evidence is generated, the right to present a defense clearly could not have been hindered. The petitioner in this case would not have obtained any more “evidence” from Gatton had he been permitted to invoke his privilege before the jury, except for an adverse inference of guilt which this Court has repeatedly warned against.

A defendant’s right to present a defense should not be upheld at the expense of diminishing the constitutional protections afforded to others. Furthermore, an adverse inference from a witness’s invocation of the right to remain silent is not, and never should be “evidence” whether favorable to the prosecution or to the defendant, and thus, a defendant cannot claim an entitlement to have a witness invoke his or her right to remain silent in the presence of the jury. See Johnson v. United States, 318 U.S. 189, 196-97 , 63 S.Ct. 549, 553 , 87 L.Ed. 704, 711 (1943) (quoting Phelin v. Kenderdine, 20 Pa. 354, 363 (1853)) (“If the privilege claimed by the witness be allowed, the matter is at an end. The claim of privilege and its allowance is properly no part of the evidence submitted to the jury, and no inferences whatever can be legitimately drawn by them from the legal assertion by the witness of his constitutional right.”); United States v. Griffin, 66 F.3d 68, 71 (5th Cir.1995) (stating that “[njeither side has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege either alone or in conjunction with questions that have been put to him”) (quoting United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973)); Bowles v. United States, 439 F.2d 536, 541 (D.C.Cir. 1970) (en banc), cert. denied, 401 U.S. 995 , 91 S.Ct. 1240 , 28 *605 L.Ed.2d 583 (1971) (“[T]he jury is not entitled to draw any inferences from the decision of a witness to exercise his constitutional privilege whether those inferences be favorable to the prosecution or the defense.”)

We recently explained that a court’s refusal to allow a defense witness to testify compels consideration of the important protections afforded a criminal defendant by the Sixth and Fourteenth Amendments, namely, the guarantees of compulsory process and due process. Redditt v. State, 337 Md. 621, 634 , 655 A.2d 390, 396 (1995). These considerations, unique to criminal defendants, are not present when a court denies the testimony of a State witness, nor for either of the parties in a civil action. See id. While noting that a criminal defendant’s compulsory process and due process protections are not absolute, we acknowledged that “where the appropriateness of excluding an accused’s witness is a relatively close call, the trial court should avoid possible infringement of the constitutional rights by permitting the offending defense witness to testify.” Id. at 635 , 655 A.2d at 397 . Thus, in Redditt , we held that the circuit court abused its discretion in excluding a witness proffered by the defense because the witness was not properly sequestered in accordance with Rule 5-615. 13 Id.

That we held that a sequestration violation should not be the basis for the court’s ruling to prohibit the testimony of a defense witness, a possible infringement of a defendant’s constitutional right to present witnesses in his or her defense, does not mean that we must hold similarly when the basis for the court’s ruling was the protection of a witness’s constitutional right to remain silent. The appropriateness of the exclusion of a defense witness is not, in this case, the “relatively close call” that we deemed an exclusion based on a sequestration violation to be. If a court affirmatively rules that a witness, whether proffered by the defense or the State, has a reasonable basis for invoking his or her right to remain silent, *606 as articulated in Adkins, 316 Md. at 6-7 , 557 A.2d at 205-06 , and its progeny, and the court determines that the witness will elect to exercise his or her right to remain silent if he or she takes the stand, then a court has no choice but to exclude this witness.

A court is obligated, not only to ensure a fair trial for, and protect the constitutional rights of, the defendant, but to also monitor and secure the constitutional protections of all those involved in the trial process, whether a party, litigant, jury member, or witness. This is not the first time the constitutional rights of a third party could be said to have impeded an action that the defendant would have liked to have taken. We have refused to permit peremptory challenges to jurors based on race or gender because of the court’s greater interest in protecting the constitutional rights of jury members to be free from discrimination by the State. See Gilchrist v. State, 340 Md. 606, 621-22 , 667 A.2d 876, 883 (1995) (stating that “[a]l-though, in the instant criminal case, the defendant rather than the prosecution exercised peremptory strikes in a racially discriminatory manner, the Supreme Court has held that Batson’s holding applies to peremptory challenges exercised by the defendant in a criminal proceeding”) (citing Georgia v. McCollum, 505 U.S. 42, 50 , 112 S.Ct. 2348, 2353-54 , 120 L.Ed.2d 33, 45 (1992)); see also Jones v. State, 343 Md. 584, 593 , 683 A.2d 520, 524 (1996); Stanley v. State, 313 Md. 50, 62-63 , 542 A.2d 1267, 1273 (1988). Just as courts should not become “willing participant[s] in a scheme that could only undermine the very foundation of our system of justice ...” with respect to racial discrimination in jury selection, see McCollum, 505 U.S. at 49 , 112 S.Ct. at 2354 , 120 L.Ed.2d at 45 (quoting State v. Alvarado, 221 N.J.Super. 324 , 534 A.2d 440, 442 (Law Div.1987)), courts should not become conduits for permitting adverse inferences to be drawn from invocation of one’s constitutional right to remain silent by .knowingly allowing a witness to take the stand for that sole purpose.

Notwithstanding my strict posture against the purposeful creation of adverse inferences, having a witness assert the privilege in order to demonstrate unavailability, itself, lacks *607 evidentiary or probative value and therefore, would fail to meet the requirements of relevancy. See People v. Dyer, 425 Mich. 572 , 390 N.W.2d 645, 649 (1986) (stating that a witness’s invocation of the right to remain silent produces no substantial evidence). It cannot, by its very nature, make a fact of consequence more or less probable because the act of invoking one’s right to remain silent cannot be construed as an admission of guilt or involvement. The majority claims that if their stance is not followed, and a witness called by the defense is not allowed to invoke his right to remain silent in front of the jurors, then the jury may believe that the defendant (the petitioner) chose not to ask the witness (Gatton) any questions about the crime out of lack of confidence in his defense. Thus, the majority appears to be arguing that the act of invocation is relevant to explaining the reason for the witness’s absence. Assuming, arguendo, that the witness’s invocation is relevant “evidence,” it should still be excluded pursuant to Maryland Rule 5-403, which permits the exclusion of relevant evidence when there exists a danger that the evidence would confuse the issues or mislead the jury. See Md. Rule 5-403. The majority’s concern that the jury would be left wondering why the witness was not questioned is better addressed by a court’s issuance, in its discretion, of an instruction to the jury that the witness is unavailable to either the State or the defense. I agree with the Court of Special Appeals that “[f]or the same reasons that the witness is not invoking the Fifth Amendment privilege in front of the jury, the neutralizing instruction should not inform the jury that the witness did not appear to testify because he invoked the Fifth Amendment privilege.” See Gray, 137 Md.App. at 520 , 769 A.2d at 227 . Thus, a neutralizing instruction may be given to inform the jury “that for reasons developed out of their presence, the witness is not available to either side and they should draw no inference from the witness’ nonappearance.” Id. at 521 , 769 A.2d at 227 (quoting John McCormick, Evidence § 121 at 297-98 (1984)).

Courts, as protectors of the constitutional guarantees afforded to all citizens, should not condone the purposeful use of *608 the invocation of one’s right to remain silent to intentionally create the inference of guilt. Because the majority’s stance would permit such use of a citizen’s constitutional right, I must respectfully dissent.

. Maryland Rule 5-804(b)(3) provides:

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

*586 (3) Statement against interest. 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.

The penal interest exception to the hearsay rule is not a firmly rooted one. ''[Wjhere hearsay statements are admitted under an exception which is not considered firmly rooted, then they are presumptively unreliable and inadmissible for Confrontation Clause purposes and must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Simmons v. State, 333 Md. 547, 559 , 636 A.2d 463, 469 (1994)(quoting Chapman v. State, 331 Md. 448, 457 , 628 A.2d 676, 681 (1993)(internal quotations omitted)). We acknowledged that the Supreme Court has specified that several classic hearsay exceptions fall within the “firmly rooted” category; however, a declaration against penal interest is not one of them. See Chapman v. State, 331 Md. 448 , 457 n. 3, 628 A.2d 676 (1993). The hearsay exceptions that fall within the “firmly rooted” category include: dying declarations, prior testimony, business records, public records, excited utterances, statements made in seeking medical treatment, and co-conspirator statements. Id. Where the hearsay in question falls within a “firmly rooted” hearsay exception "no independent inquiry into reliability is required....” Bourjaily v. United States, 483 U.S. 171, 183 , 107 S.Ct. 2775, 2782 , 97 L.Ed.2d 144, 157 (1987)(discussing Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980)).

. The United States Supreme Court discussed appellate review of lower court's determinations regarding whether a hearsay statement had particularized guarantees of trustworthiness in Lilly v. Virginia, 527 U.S. 116 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999), which involved hearsay evidence offered by the prosecution to establish the guilt of an alleged accomplice (the defendant) of the declarant. The defendant argued that his rights pursuant to the Confrontation Clause were violated when the hearsay statement of his alleged accomplice was admitted. See 527 U.S. at 120 , 119 S.Ct. at 1892 , 144 L.Ed.2d at 124 . With respect to the appellate review of these claims, the Supreme Court stated, “as with other fact-intensive, mixed question of constitutional law ... independent review is ... necessary ... to maintain control of, and to clarify, the legal principles governing the factual circumstances necessary to satisfy the protections of the Bill of Rights." Id. at 136 , 119 S.Ct. at 1900 , 144 L.Ed.2d at 134 (emphasis added)(quoting Orne-las v. United States, 517 U.S. 690, 697 , 116 S.Ct. 1657, 1662 , 134 L.Ed.2d 911, 919 (1996))(internal quotations omitted). The case presently before this Court, however, is not the "mixed question of constitutional law” to which the Supreme Court was referring in Lilly v. Virginia. On the contrary, the determination the lower court made in this case was the fact-intensive application of evidentiary rules traditionally left to the province of the trial judge.

. Gatton’s invocation of the privilege against self-incrimination is sufficient to establish unavailability. Simmons, 333 Md. at 559 , 636 A.2d at 469 .

. As the trial court correctly noted, “a trial judge may be called upon to determine whether a reasonable person who is under the influence [of] alcohol or drugs would have understood the disserving nature of a particular statement.” Standifur, 310 Md. at 13 , 526 A.2d at 959-60 . Evelyn testified that, at the time the statements were made, Gatton was “high and drunk.”

. The trial court cited case law from other jurisdictions to support its conclusions. See State v. Cooper, 20 Kan.App.2d 759 , 892 P.2d 909, 914 (1995) ("... if a declarant has no good reason to believe that the assertion will bring harm, or believes the assertion is more likely to cause benefit rather than harm, such assertion will not be excepted from the hearsay rule.''); People v. Pecoraro, 175 Ill.2d 294 , 222 Ill.Dec. 341 , 677 N.E.2d 875, 882 (1997)(holding that an admission to a murder when coupled with a “threat apparently bom of jealousy” would not be admissible, as it "may simply represent bravado designed to bolster the threat”). This does not mean, as the petitioner alludes, that one must have a clear-headed desire to disclose the truth to the authorities to qualify as a statement against penal interest. On the contraiy, the courts above simply note that when the circumstances surrounding the statement strongly indicate ulterior motives for the declaration, courts should hesitate before admitting such a statement under a hearsay exception.

. With respect to the second factor, the primary issue of contention in the present case, I have provided the trial court’s entire analysis of the general character of the speaker (Evelyn) when I discuss the majority’s *591 ill-founded concerns about the inherent credibility assessment in greater detail infra. See infra note 7 and accompanying text.

. In the trial court's written memorandum regarding its rulings on the admissibility of Gatton's hearsay statements, the court provided a detailed analysis and discussion of the "general character of the speaker” under the second Alvarez , factor as follows:

*592 The Court interprets "the general character of the speaker” to mean an evaluation of tire in-court witness ... among the circumstances to be considered are those surrounding the witness’ disclosure of the statement. Demby v. State, 695 A.2d 1152, 1158 (Del. 1997).

Evelyn Johnson is an admitted' crack cocaine user. Her testimony was self-contradictory, confused, inexact, and incredible. Despite a carefully structured direct examination, in which events were placed in reference to when Ms. Johnson heard about Bonnie Gray’s disappearance and death, Ms. Johnson's already shaky chronology completely fell apart under cross-examination. Bryan Gatton’s visits dwindled from nearly every day over a period of months to a handful of times within a two week period. His "confession” moved from a few days after he last brought Bonnie to the Johnson home to as much as a month later. The number of visits Bonnie and/or Becky made fluctuated, as did the details of each visit.

In one particularly telling example, Ms. Johnson testified on direct that the last time Bonnie came, she brought Becky with her. Bonnie and Mr. Gatton had their argument (apparently with Becky still in the room). Mr. Gatton walked out with Bonnie and Becky, and Ms. Johnson watched Mr. Gatton take Becky by the hand and buckle her into her seat. On cross-examination, however, Ms. Johnson admitted that she had never watched Mr. Gatton or Bonnie leave, and had never seen Bonnie's car except for the one time Bonnie drove everyone to a liquor store, and the- buckling in of Becky, which she had described in detail, was just an assumption.

The Court notes that at least one jurisdiction, California, has held that the credibility of the in-court witness is "not a proper consideration” for the trial judge, but should be left to the jury. People v. Cudjo, 6 Cal.4th 585 , 25 Cal.Rptr.2d 390 , 863 P.2d 635, 649 (1993). Even California recognizes, however, that if the falsity of a witness’ testimony is apparent " 'without resorting to inferences or deductions,' ” that witness’ testimony will not be sufficient to bring the declaration against penal interest to the jury. Id. at 649 . Such is the case here. The Court has serious doubts about whether the statement was in fact made, a concern that also cuts against its admissibility. United States v. Bagley, 537 F.2d 162, 167 (5th Cir.1976).

Most troubling of all are the timing and the circumstances surrounding Ms. Johnson’s initial disclosure of the statement. See, e.g. Demby, 695 A.2d at 1158 (witness’ disclosure of the declarant's statement found trustworthy under the circumstances). Nearly two years elapsed before Ms. Johnson told anyone about Mr. Gatton’s statement. Mr. Gatton’s conviction and twenty-year sentence for car jacking did not result in Ms. Johnson telling Mr. Johnson, or anyone else, about the statement. Two visits by defense investigators had not produced the statement; in fact, Ms. Johnson denied knowing Bonnie and Becky Gray altogether. On the third visit, [according to Ms. Johnson, a defense investigator would interview her, she would move to escape him, and the investigator would track her down], Ms. Johnson told the investigators she knew Bonnie and Becky, but "didn’t want to say anything because I was scared.” She told them she would only talk if they would protect her. Ms. Johnson moved *593 again, and this time there were some people who “said they would break in and kill me and all this kind of stuff,” so she called Ben Guiffre, one of the defense investigators. While Ms. Johnson denied telling Mr. Guiffre to come pick her up if he wanted to hear the rest of the story, she did admit she had “called him several times and told him how I had pieces to the story to please come and talk to me.” Ultimately, Mr. Guiffre arrived with a U-haul and moved Ms. Johnson into an apartment in Prince George's County, where Ms. Johnson stayed rent-free for a period of time. Ms. Johnson had plenty of motive to tell the defense investigators what she believed they wanted to hear, and the fact that she waited so long to tell anyone, and then only after repeated denials, casts serious doubt on the trustworthiness of her testimony.

. The Court of Special Appeals correctly acknowledged that with respect to considering the general character of the speaker in a court's determination of the trustworthiness of the hearsay statement, there exists a split in the federal circuits. See Gray, 137 Md.App. at 478-79 , 769 A.2d at 202-03 ; see also United States v. Seeley, 892 F.2d 1, 3 (1st Cir. 1989)(prohibiting a court’s assessment of the in-court witness's credibility); United States v. Katsougrakis, 715 F.2d 769, 777 (2nd Cir.1983)(prohibiting a court’s assessment of the in-court witness’s credibility); Alvarez, 584 F.2d at 699-701 (permitting a trial court to assess the in-court witness’s credibility as one of several factors in a trustworthiness determination); United States v. Rasmussen, 790 F.2d 55, 56 (8th Cir.1986)(permitting a trial court to assess the in-court witness’s credibility as one of several factors in a trustworthiness determination).

. The majority asserts that "[tjhere is nothing in Standifur , or in any of our cases of which we are aware, that in a jury trial specifically permits a trial court to make a factual assessment of the trustworthiness of the in-court relator of the out-of-court declaration that exculpates a defendant.” Maj. Op. at 544. I disagree; while the Matusky Court couldn't *595 adopt the Alvarez factors because it lacked the factual predicate for such adoption, the Court did acknowledge these factors approvingly.

. The Fifth Amendment to the United States Constitution states, in relevant part, that ''[n]o person ... shall be compelled in any criminal case to be a witness against himself....” U.S. Const, amend. V.

. Article 22 of the Maryland Declaration of Rights states, "[t]hat no man ought to be compelled to give evidence against himself in a criminal case.”

. Accordingly, I disagree also with the Court of Special Appeals when "recognize[d] discretion in the trial court to decide the issue based on considerations of relevancy and probative value versus potential prejudicial effect” and held that ‘‘in Maryland, the question whether, upon request of a criminal defendant, a witness may be questioned in front of the jury when it is known that he will reasonably and in good faith assert the testimonial privilege must be determined by application of Md Rules 5-401 and 5-403.” Gray, 137 Md.App. at 517 , 769 A.2d at 225 . The invocation of the right to remain silent is not an evidentiary item that can be wielded under the Rules oí Evidence; rather, it is a constitutional right, the exercise of which should take on no evidentiary significance.

. At (he time of Redditt’s trial, Rule 4-321, the former version of Rule 5-615, was in effect.