State v. Parris

Williams, J.,

(dissenting)—When, as here, an out-of-court statement is offered against a defendant in a criminal prosecution, the trial judge must ask three questions: (1) Is the statement hearsay? If so, (2) Does the statement come within a recognized exception to the hearsay rule? If so, (3) Will the admission of the statement violate the defendant's right to confront witnesses against him? D. Binder, The Hearsay Handbook 11-12 (Supp. 1981).

I dissent because I believe the trial court and the majority incorrectly answer two of these three questions. First, I believe the majority's conclusion that the evidence comes within a recognized exception to the hearsay rule is based on an incorrect and improper application of ER 804(b)(3)'s exception for declarations against interest. Second, I believe the majority's analysis misinterprets constitutional doctrine relating to the confrontation clause. " [Historical evidence leaves little doubt. . . that the [Confrontation] Clause was intended to exclude some hearsay." Ohio v. Roberts, 448 U.S. 56, 63 , 65 L. Ed. 2d 597 , 100 S. Ct. 2531 (1980). I dissent because I believe the majority opinion admits precisely the type of hearsay proscribed by the confrontation clause of the sixth amendment to the United States Constitution. Further, I believe the language of Const, art. 1, § 22 provides greater protections in this area than the Sixth Amendment and independently dictates exclusion of this evidence. I also dissent because I believe the evidence in question is so highly unreliable that protection of the fact-finding process requires its exclusion.

*155 Application of ER 804(b)(3)

Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, which is offered in evidence to prove the truth of the matter asserted in the statement. ER 801(c). The declarant is the person who originally makes the statement in question. ER 801(b). In the present case a police informant, Gordon Milliron, was permitted to testify as to conversations which he had with William DeHart (hereinafter declarant) while arranging a drug purchase for the police. Petitioner, John Parris, challenges the admissibility of this testimony by Milliron.

At which time I asked Mr. DeHart what was going on, and he said . . . that the drugs were being gotten. I said, "Do you mean that John's going to get them? I don't recall what his response was specifically. Then I asked him, I said, "Will it be more than a half hour? He said, "I don't think so." I said, "Well, do you think he'll return with the drugs, or the money, and the quality and quantity would be accurate?" And he said, "Yes, I think so. There won't be any problem."

Report of Proceedings, at 276.

These statements are clearly hearsay. Milliron's testimony relates out-of-court statements which were offered to prove the truth of the matter asserted, that is, that Parris was going to get drugs. As hearsay the statements are only admissible if they fall within an established hearsay exception. ER 802. The only possible exception that could apply is that for statements against penal interest. This exception, only recently recognized by Washington and the federal courts by their adoption of the Federal Rules of Evidence, provides that if a declarant is unavailable his statements are excepted from the hearsay rule when they "so far tended to subject him to civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." ER 804(b)(3). See 4 J. Weinstein & M. Berger, Evidence ¶ 804(b)(3) [01] (1981); 5A K. Tegland, Wash. Prac. § 405 (2d ed. 1982). The initial problem faced by this court is the *156 determination of whether this rule applies to DeHart's statements.

In evaluating whether a statement constitutes a declaration against interest under ER 804(b)(3), the first step is to determine who actually made the statement. In other words, who is the declarant? In the above passage the trial judge, relying on ER 804(b)(3), permits Milliron to repeat both the questions that Milliron asked DeHart and DeHart's answers. The question-answer format thus complicates the task of determining who is the declarant. For instance, the questions contain factual assertions in which DeHart acquiesced by answering affirmatively. All of the factual assertions in Milliron's questions, except the crucial one identifying the defendant as the party delivering the drugs, appear to have been affirmed by DeHart. Moreover, the questions are not relevant without their answers and the answers are meaningless without the questions. It would be fruitless, therefore, to examine the admissibility of the questions apart from their answers. The better approach, and one implicit in the trial court's ruling and the majority opinion, is to treat the statements as if they were all attributable to DeHart. 2

Once the declarant is identified, the next task is to determine whether the statements fall within the terms of ER 804(b)(3). To evaluate this problem, a little terminology and history of the rule is needed. First, the terminology. An inculpatory statement is one which implicates both the declarant and the defendant. Normally, the prosecution seeks to introduce evidence of inculpatory statements. 3 *157 Exculpatory statements, offered by the defendant, tend to establish the defendant's innocence by substituting the declarant for the defendant as the one responsible for the crime. Both inculpatory and exculpatory statements may be further classified as collateral or noncollateral. A noncollateral statement contains a factual statement which directly implicates only the declarant. For instance, the declarant says, "I killed X; the defendant is innocent." This statement exculpates the defendant by substituting the declarant for the defendant. It contains no collateral reference to someone else's criminal activity. In contrast, a statement such as, "The defendant and I killed X." implicates both the defendant and the declarant. This type of statement is called a collateral statement. 4

Technically, only that portion of the statement in which the declarant admits his own guilt falls within the terms of ER 804(b)(3). The second portion of the statement implicates a third party. That portion of the statement may actually be in the declarant's interest. For instance, the declarant may believe he will suffer less severe punishment if he shares the guilt or suggests to the police that he can help them convict someone else. Commentators have suggested several ways to handle this problem.

For instance, Dean McCormick set out three solutions:

First, admit the entire declaration because part is disserving and hence by a kind of contagion of truthfulness, all will be trustworthy. Second, compare the strength of the self-serving interest and the disserving interest in making the statement as a whole, and admit it all if the dis-serving interest preponderates, and exclude it all if the self-serving interest is greater. Third, admit the disserving parts of the declaration, and exclude the self-serving parts. The third solution seems the most realistic method of adjusting admissibility to trustworthiness, where the serving and disserving parts can be severed.

(Footnotes omitted.) E. Cleary, McCormick on Evidence § *158 279, at 677 (2d ed. 1972). Weinstein and Berger suggest that a similar test would be appropriate when statements are both disserving and neutral in effect. Because DeHart's statements contain references to someone else's criminal activity, rather than his own, they must be viewed as collateral statements which contain potentially self-serving material. Thus, the majority should have at least explored the possibility of omitting the statements referring to Parris. If it had done so, it would have discovered that no part of DeHart's statements refer to his criminal activity. The majority ignores this alternative and asserts that it is appropriate to admit any statement made during the conduct of criminal activity. The history of the rule, revealing as it does suspicion of the exception's reliability, supports only a narrow reading of the rule.

At common law, statements against penal interest were thought to be insufficiently reliable to be admitted under any exception to the hearsay rule. See generally 4 J. Weinstein & M. Berger, at 804-95; Donnelly v. United States, 228 U.S. 243 , 57 L. Ed. 820 , 33 S. Ct. 449 (1913). The Federal Rules of Evidence and our state's counterpart depart from the common law and allow such statements when the declarant is unavailable and the statements so far tend to subject him to criminal liability that a reasonable person would not have made the statements. Fed. R. Evid. 804(b)(3); ER 804(b)(3). The rule also provides that a statement tending to exculpate the accused is not admissible unless corroborated. ER 804(b)(3). Originally, the federal version contained an additional sentence stating: "'A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception.”' 4 J. Weinstein & M. Berger, at 804-11. Believing that it was unwise to state constitutional doctrine in a rule of evidence, Congress deleted the sentence. 5A K. Tegland, at 304.

Without a specific prohibition of inculpatory statements, the majority of the federal courts have ruled that such *159 statements are admissible under the rule. See, e.g., United States v. Alvarez, 584 F.2d 694 (5th Cir. 1978); United States v. Sarmiento-Perez, 633 F.2d 1092 (5th Cir. 1981). In doing so, however, the courts have held that the corroborating circumstances required for exculpatory statements are also necessary for inculpatory statements. See United States v. Alvarez, supra; United States v. SarmientoPerez, supra. A 3-step test, therefore, has been developed for applying the rule. The Sarmiento-Perez court states it as follows:

Thus, under Alvarez , the general test for the admissibility of statements against penal interest is the same, whether those statements are offered to exculpate or to inculpate the accused: (1) The declarant must be unavailable; (2) the statement must so far tend to subject the declarant to criminal liability that a reasonable person in his position would not have made the statement unless he believed it to be true; and (3) the statement must be corroborated by circumstances clearly indicating its trustworthiness.

Sarmiento-Perez , at 1098.

Washington, without discussion, adopted the equivalent of Fed. R. Evid. 804(b)(3). Although strong authority, nothing requires that this court follow the federal decisions in this area. The majority opinion ignores the option of a restricted rule and assumes that we should apply federal precedents and interpret the rule to include inculpatory statements. I disagree. I believe admission of exculpatory statements against penal interest may be constitutionally required while admission of inculpatory statements is not. Admission of exculpatory statements preserves the defendant's fundamental constitutional right to present witnesses and testimony on his own behalf. This right outweighs any countervailing interest the State may have in excluding marginally reliable testimony. In other words, once a threshold reliability is determined, the constitution requires that the statement be admitted. See generally Chambers v. Mississippi, 410 U.S. 284 , 35 L. Ed. 2d 297 , 93 S. Ct. 1038 (1973). On the other hand, the State's right to *160 introduce inculpatory evidence enjoys no comparable constitutional protection. This fact alone justifies a narrow interpretation of ER 804(b)(3). That conclusion is bolstered once one considers the overwhelming evidence that such statements were traditionally viewed as so unreliable that they were not generally admissible. Furthermore, the common law approach recognized a distinctive problem with statements against interest. Their reliability depends entirely on generalizations about human motivation. Once a declarant is unavailable, the validity of those generalizations may not be explored by cross examination. The vagaries of human behavior are not, in my opinion, sufficiently predictable to excuse infringement on the defendant's right to confront his accuser. Thus I favor a rule in Washington that interprets ER 804(b)(3) to allow only exculpatory statements against penal interest. Several states have, in fact, enacted versions of Fed. R. Evid. 804(b)(3) that exclude inculpatory statements. Arkansas, Florida, Maine, Nevada, New Jersey, and North Dakota all recognize that these statements should not be allowed. 5

I believe such a narrow interpretation of ER 804(b)(3) is required by Const, art. 1, § 22, which provides in part:

In criminal prosecutions the accused shall have the right ... to meet the witnesses against him face to face

(Italics mine.) I cannot imagine a more explicit requirement than "face-to-face" confrontation. Such a requirement assures three fundamental safeguards of confrontation: (1) statements made in court are under oath; (2) the witness is subject to cross examination, the '"greatest legal engine ever invented for the discovery of truth'"; and (3) cross examination permits the jury to observe the demeanor of the witness and thereby evaluate his credibility. Herbert v. Superior Court, 117 Cal. App. 3d 661 , 172 Cal. Rptr. 850, *161 852 (1981). In United States v. Benfield, 593 F.2d 815, 821 (8th Cir. 1979), the court observed that:

The right of cross-examination reinforces the importance of physical confrontation. Most believe that in some undefined but real way recollection, veracity, and communication are influenced by face-to-face challenge.

Under the majority's present interpretation of ER 804(b)(3), a defendant is denied the right not only to cross-examine the witness and have the jury observe his demeanor, but is denied the important right to physically confront that witness. I believe Const, art. 1, § 22 alone requires that the type of inculpatory statement offered against petitioner, purportedly under ER 804(b)(3), be prohibited.

Notwithstanding these considerations, the majority sees fit to adopt the federal interpretation of ER 804(b)(3) wholesale. It does not, however, correctly apply that doctrine. Using this 3-step process, the majority first implicitly finds that the declarant was unavailable and then proceeds to the second step of determining whether the statements so far tended to expose the declarant to criminal liability that a reasonable person would not have made them unless he believed them to be true. The majority concludes that the statements meet this test. I disagree. First, the statements do not implicate the declarant in criminal activity. Instead, they implicate a third person, not the declarant. Thus, each question refers to the criminal activity of a third person. For instance, the first and most critical question suggests that a man by the name of John is going to get drugs. This question should never have been admitted because the witness could not remember the answer. Even if he had, however, a witness' observation that someone else is going to get drugs is not the basis of criminal liability. The declarant did not say that John was going to get drugs for him; he only acquiesced by silence in the police informant's suggestion that they were being gotten. The majority attempts to circumvent this problem by arguing that the statements taken within the context of the drug transaction *162 would subject DeHart to criminal sanctions. No court has adopted such a broad rule. Furthermore, I consider such a test to be dangerous and illegal precedent. The logic of the majority's analysis would lead to a rule that allows any statement made during the commission of a criminal act to be admissible under the declaration against interest exception. A better rule is set out in People v. Traylor, 23 Cal. App. 3d 323 , 100 Cal. Rptr. 116 (1972). That court focused on the rationale for the rule and concluded:

The test here is not whether the statement could provide a link in a chain of evidence leading to the declarant's criminal liability, but whether the statement satisfies the reason why declarations against interest are admitted as an exception to the hearsay rule. According to Wigmore "[t]he basis of the Exception is the principle of experience that a statement asserting a fact distinctly against one's interest is unlikely to be deliberately false or heedlessly incorrect, and is thus sufficiently sanctioned, though oath and cross-examination are wanting." (5 Wigmore, Evidence (3d ed. 1940) § 1457, pp. 262-263.)

Traylor , at 331.

Nor are these statements of the type that implicate both the declarant and a third party. Many courts have ruled that these statements are admissible because they directly implicate the declarant and are therefore presumably reliable as to the collateral reference to a third person. See generally Comment, Federal Rule of Evidence 804(b)(3) and Inculpatory Statements Against Penal Interest, 66 Cal. L. Rev. 1189 , 1190 n.7 (1978). In the instant case the statements implicate only the third person. There is absolutely no explicit reference to DeHart's criminal activity.

Second, contrary to the majority's assertion, DeHart had a strong motivation to lie. The rationale for the declaration against interest exception is that reasonable people do not make statements against their interest. See Comment to ER 804(b)(3). If the facts surrounding the making of the statement suggest that the declarant may have been acting in his own best interest by lying, the rationale, and therefore the rule, does not apply. See 4 J. Weinstein & M. Ber *163 ger, Evidence ¶ 804(b) (3) [02], at 804-98 (1981). Here, DeHart, as a dealer in drugs, had a strong interest in protecting his supplier. By acquiescing in Milliron's suggestions that Parris was his supplier, DeHart drew suspicion away from himself and/or the real supplier. Thus, if he was walking into a setup, the police would go after Parris as the one most likely to have a quantity of drugs. 6

Finally, contrary to the majority's assertion, the statements are not spontaneous. They are the direct result of suggestive questioning by a police informant who had a significant interest in pleasing the police. At the time he was working with the police Milliron was facing the possibility of habitual criminal charges being filed against him for a recent felony. He admitted his interest in pleasing the police at trial. He stated:

A. At that time, realizing the possible penalties that I was faced with, I asked them if there was something I could do in return. Q. Return for what? A. As opposed to the charge. Q. You mean not bring [stc] any charge against you? A. Yes.

Report of Proceedings, at 286. 7

Each of these factors contribute to the conclusion that the statements do not fall within the terms of ER 804(b)(3). A more difficult question, however, involves the relationship of this hearsay exception to the confrontation clause. I believe the confrontation clauses of the state and federal *164 constitutions require that this evidence be excluded irrespective of whether it falls within the terms of ER 804(b)(3).

Confrontation Clause

The confrontation clause of the sixth amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . .

Washington's constitution has a parallel provision, which states:

In criminal prosecutions the accused shall have the right ... to meet the witnesses against him face to face

(Italics mine.) Const, art. 1, § 22. In contrast to the federal provision, Const, art. 1, § 22 plainly affords the accused the right to physically confront the witnesses against him. Although as a practical matter this provision cannot be applied as an absolute bar to hearsay, the strong language of our state constitution, requiring as it does face-to-face confrontation, weighs more heavily than its federal counterpart in favor of excluding inculpatory statements when there is any doubt as to their reliability.

The importance of these rights to our system of justice cannot be overstated. In reversing on its own motion a conviction that violated these rights, the Wisconsin Supreme Court observed:

The needs of our system of justice also bolster our view that the conviction must be reversed. A trial conducted in violation of the defendant's confrontation rights is a trial that flouts fundamental concepts of justice basic to our system. Where a defendant is convicted in a way inconsistent with the fairness and integrity of judicial proceedings, then the courts should invoke the plain-error rule in order to protect their own public reputation.

(Citation omitted.) Virgil v. State, 84 Wis. 2d 166, 192 , 267 N.W.2d 852 (1978).

On the other hand, despite the strong language of these *165 provisions, the right to confront witnesses has not been interpreted as an absolute. Chambers v. Mississippi, 410 U.S. 284 , 35 L. Ed. 2d 297 , 93 S. Ct. 1038 (1973). The courts balance this right against the need for effective law enforcement and precise formulation of the rules of evidence applicable in criminal proceedings. Ohio v. Roberts, 448 U.S. 56, 64 , 65 L. Ed. 2d 597 , 100 S. Ct. 2531 (1980). One result of this balance has been the United States Supreme Court's acknowledgment that in certain cases hearsay testimony may be admitted despite the fact that the defendant's right to confront witnesses has been curtailed. The question this court must answer is: What is the proper balance between the confrontation clause of the federal and state constitutions and inculpatory statements admitted under ER 804(b)(3)? The majority resolves the balance against the defendant. I disagree. Insofar as the United States constitutional provision is concerned, a thorough examination of three recent United States Supreme Court decisions in this area demonstrates why the balance must be struck in the defendant's favor.

California v. Green, 399 U.S. 149 , 26 L. Ed. 2d 489 , 90 S. Ct. 1930 (1970) contains the basic principles. In discussing the relationship between hearsay and the confrontation clause the Court notes:

While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception.

(Citations omitted. Italics mine.) Green , at 155-56.

In Green the Court concluded that the confrontation clause is not violated by admitting a declarant's out-of-court statements as long as the declarant is testifying as a *166 witness. Green , at 158.

Two subsequent cases, Dutton v. Evans, 400 U.S. 74 , 27 L. Ed. 2d 213 , 91 S. Ct. 210 (1970) and Ohio v. Roberts, supra, made it clear that in some circumstances out-of-court testimony could be admitted even if the declarant did not take the stand. Dutton involved an out-of-court statement admitted during the course of a murder trial. Appellant, Alex Evans, and two other men, Wade Truett and Venson Williams, were charged with killing three police officers. Truett, a participant and eyewitness to the murders, was granted immunity and testified against Evans and Williams. Williams and Evans were tried separately. In the Evans trial, the prosecution produced 19 other witnesses, among them a man by the name of Shaw. Shaw, a fellow inmate of Williams, testified that Williams, when returned to the penitentiary, had answered his inquiry on how it went by saying, " 'If it hadn't been for that dirty son-of-a-bitch Alex Evans, we wouldn't be in this now.'" Dutton , at 77. The Supreme Court held the admission of Williams' hearsay statement did not violate Evans' right to confront witnesses against him. The Court distinguished Dutton from previous confrontation clause cases by noting that the case did not involve: (1) evidence in any sense '"crucial"' or "'devastating'"; (2) the use or misuse of a confession made in a coercive atmosphere; (3) any suggestion of prosecutorial misconduct; (4) a paper transcript; (5) a joint trial; and (6) the wholesale denial of cross examination. The Court went on to observe that the most important witness, the eyewitness who described the murders in detail, was cross-examined at great length. Dutton , at 87.

More recently, the Supreme Court again addressed the confrontation clause-hearsay problem in the case of Ohio v. Roberts, supra. Roberts involved the use of testimony from a pretrial proceeding in which the defense was allowed to question the witness. At the time of trial the witness was unavailable and the transcript was introduced to rebut the defendant's explanation of events. A majority of the Court found that the defendant's confrontation rights were not *167 violated primarily because defense counsel had an opportunity to question the witness at the prior proceeding. Emphasizing once again that the confrontation clause is not identical with the rules of evidence, the Court observed:

[T]he Clause countenances only hearsay marked with such trustworthiness that "there is no material departure from the reason of the general rule."

(Citation omitted.) Roberts , at 65.

Attempting to provide some guidance but reluctant to state hard and fast rules, the Supreme Court summarized the requirements of the confrontation clause in the passage quoted by the majority. Majority opinion, at 145. It concluded that hearsay may be admitted where the prosecution shows that the declarant is unavailable, and the evidence either falls within a firmly rooted exception to the hearsay rule or a showing of particularized guaranties of trustworthiness is made. Roberts , at 66. The majority opinion purports to apply the particularized guaranties of trustworthiness test stated in Roberts . The indicia of reliability test, however, must be placed in the context of the Green-Dutton-Roberts trilogy and the rationale behind the rule. In each of these cases the Court expressed strong concern for the integrity of the factfinding process and allowed a balance to be struck when the amount of the infringement on the defendant's Sixth Amendment right was minimal in comparison to the trustworthiness of the statement. The majority does not make a meaningful attempt to evaluate the amount of infringement on the defendant's right to confront the witness. If it had, the balance would have to have been struck in favor of excluding the hearsay. For instance, in Green the impairment of the defendant's right to confront the witness was minimal because the statement which was being admitted was one of a witness at the trial. Thus, though the defendant could not cross-examine the declarant at the time he made the statement he could do so at trial. In Dutton , on the other hand, the declarant was never produced at trial. But the factfinding process was protected by the defendant's ability to cross-examine the *168 critical eyewitness, as well as 19 other witnesses. Furthermore, the defendant in Dutton could have subpoenaed the declarant but chose not to do so because his lawyer concluded it was not in his best interest. Thus, the Court may have considered the refusal to call the declarant as a partial waiver of the confrontation right. Also, the Dutton Court noted that cross examination of the declarant would have been of little value to Evans, because the underlying circumstances were such as to indicate the statements were true. Finally, in Roberts , the Court concluded that the Sixth Amendment infringement was minimal because the defendant had the opportunity to question the witness at the pretrial hearing.

In the present case, however, each of these factors weigh in favor of protecting the defendant's right to confront witnesses. Here, the declarant was definitely unavailable. There was no question but that DeHart had refused to testify. The defendant therefore could not waive his confrontation rights. Unlike Dutton the testimony in this case was critical to the prosecution; it is just the type of evidence the Dutton Court referred to as "'crucial'" or '"devastating"'. Only the hearsay statements of DeHart connect Parris' presence in the area with the sale of drugs. Also, unlike Dutton , cross examination of DeHart could have accomplished a variety of things, most important of which is exploring possible motives for DeHart to lie. 8 In the same way this case differs significantly from Roberts . There the defense had an opportunity to question the declarant. Here the defense at no time was allowed to question the declarant.

In summary then, the extent of the infringement of defendant's constitutional right was greater than in any of the United States Supreme Court cases relied upon by the *169 majority. When this fact is balanced against an accurate evaluation of the reliability of these statements, the balance should be resolved in favor of the defendant.

Reliability

Assuming for the moment that the majority had correctly resolved the application of ER 804(b)(3) and the confrontation clause issue, a further inquiry is needed. This court must decide what standards of reliability are required under both the rule and the constitution. 9 The majority analysis lumps together the confrontation clause, inculpatory statements under ER 804(b)(3), and exculpatory statements under ER 804(b)(3). A better rule, and one adopted by the Fifth Circuit in United States v. Sarmiento-Perez, 633 F.2d 1092 (5th Cir. 1981), recognizes the constitutional problems connected with each type of statement. Refusing to admit an exculpatory statement may violate a defendant's right to present witnesses. Of this right the United States Supreme Court has said:

Few rights are more fundamental than that of an accused to present witnesses in his own defense . . . [Wjhere constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.

(Citations omitted.) Chambers v. Mississippi, 410 U.S. 284, 302 , 35 L. Ed. 2d 297 , 93 S. Ct. 1038 (1973).

Admission of an inculpatory statement, on the other hand, may directly violate the defendant's right to confront witnesses. The Sarmiento-Perez court summarized the problems:

[A] clear distinction must be drawn between statements against penal interest that are offered to exculpate a *170 criminal defendant, as against those that are offered to inculpate him. The admission under Rule 804(b)(3) of against-interest-of-declarant hearsay statements that inculpate a criminal defendant results in the diminution of rights traditionally viewed as essential and fundamental components of an accused person's right of confrontation. Therefore, sixth amendment values demand that the threshold measure of admissibility under Rule 804(b)(3)—the Alvarez test—be applied in light of the "close examination" called for in Chambers v. Mississippi, supra.[ 10 ] Ohio v. Roberts, [supra].

Sarmiento-Perez , at 1100.

Applying the close examination test referred to above leads inescapably to the conclusion that this evidence is so unreliable that its admission "flouts fundamental concepts of justice". Virgil v. State, 84 Wis. 2d 166, 192 , 267 N.W.2d 852 (1978). Contrary to the majority's assertion, the statements in question contain few, if any, indicia of reliability. The majority looks to a footnote in United States v. Alvarez, 584 F.2d 694 (5th Cir. 1978) for guidelines in determining the trustworthiness of extrajudicial statements. In doing so it ignores the two primary guidelines relied upon by that court in the text of that opinion. Those guidelines resulted in the court excluding statements similar to those admitted here. In Alvarez the defendant was convicted of trafficking in heroin on the basis of the testimony of one Lopez. Lopez claimed that he obtained the heroin from Mejorado. Mejorado supposedly got it from Alvarez. Lopez, a police informant, alleged Mejorado told him that Alvarez was his supplier. Prior to trial, Mejorado was killed in an automobile accident, and the trial judge allowed Lopez to testify about his conversations with Mejorado. The testimony included a phone call which occurred immediately prior to the heroin delivery. The *171 Fifth Circuit held that the federal version of ER 804(b)(3) requires corroboration for inculpatory statements as well as exculpatory and adopted the following test:

Under Rule 804(b)(3), trustworthiness is determined primarily by analysis of two elements: the probable veracity of the in-court witness, and the reliability of the out-of-court declarant.

(Citation omitted.) Alvarez , at 701.

In applying the test the court noted that Lopez presumably testified in hopes of receiving preferential treatment. Like Lopez, Milliron, the chief in-court witness, here had a strong motivation to curry favor with the authorities. In fact, Milliron asked the police if he could do anything to help.

Applying the second prong of the test, the Alvarez court turned to the reliability of the declarant and observed:

[T]he traditional surety of reliability for this hearsay exception, the statement's contravention of the declarant's interest, is extremely weak in this case.

(Citation omitted.) Alvarez , at 701. Like the case before us, Alvarez involved statements made by the declarant which only incidentally implicated the defendant. Thus, though the court did find that the statements fell within the exception, it ultimately concluded that they were insufficiently reliable to be admitted. The similarity of these cases and the minimal reliability of statements against penal interest convince me that the same result is required here.

I am equally unconvinced by the majority's attempt to manufacture reliability by looking to other evidence of the defendant's guilt. The majority relied on the Court of Appeals decision in State v. Valladares, 31 Wn. App. 63 , 639 P.2d 813 (1982). That court in turn relied upon Chambers . That reliance is misplaced. In Chambers , the defendant sought to cross-examine his own witness, Gable McDonald, who had confessed to the crime in question and then repudiated his confession. Chambers also tried to present witnesses who had heard McDonald admit that he had committed the crime. The Court held that it was error *172 to reject defendant's attempts to make McDonald an adverse witness so that he could be cross-examined. It also held that it was error to exclude the hearsay evidence of McDonald's prior admissions of guilt. In doing so, the Court looked to other evidence of the declarant's guilt to provide corroboration and reliability to the statements and to the circumstances surrounding the making of the statement. This is vastly different than the majority's attempt to bootstrap the reliability of the declarant's statement on the guilt of the defendant. Furthermore, in Chambers the defendant sought to preserve his right to present witnesses and the Court held that the hearsay statement interfered with that right. In the present case the hearsay statement itself infringes on the Sixth Amendment right.

By admitting hearsay of dubious reliability, the majority strikes a blow to the fundamental right to due process that is every defendant's right. As Justice Powell observed:

The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process.

Chambers , at 294. I believe the majority opinion deprives John Parris of one of the most fundamental rights of our system of justice—the right to confront and cross-examine the chief witness against him. "Petitioner was thus denied the right of effective cross-examination which "'would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." . . .'" (Citations omitted.) Davis v. Alaska, 415 U.S. 308, 318 , 39 L. Ed. 2d 347 , 94 S. Ct. 1105 (1974), quoting from Brookhart v. Janis, 384 U.S. 1, 3 , 16 L. Ed. 2d 314 , 86 S. Ct. 1245 (1966) and Smith v. Illinois, 390 U.S. 129, 131 , 19 L. Ed. 2d 956 , 88 S. Ct. 748 (1968). Violation of that right requires that this conviction be reversed.

*173 Utter, J., and Cunningham, J. Pro Tem., concur with Williams, J.

Milliron was acting as a police informant at the time he asked these questions. His questions thus could not have been against his penal interest because he would not be subject to criminal liability for making them.

It is important to remember that statements against penal interest may also be a way of getting around hearsay problems that may arise in contexts other than at trial. For instance, statements against penal interest have been found to provide reliability for statements that form the basis of probable cause for a search warrant. See United States v. Harris, 403 U.S. 573, 581 , 29 L. Ed. 2d 723 , 91 S. Ct. 2075 (1971).

See Comment, Federal Rule of Evidence 804(b)(3) and Inculpatory Statements Against Penal Interest, 66 Cal. L. Rev. 1189 (1978) for further discussion of the types of statements against penal interest.

See Arkansas Evidence Rule 804(b)(3); Florida Evidence Code 90.804(2)(c); Maine Evidence Rule 804(b)(3); Nev. Rev. Stat. § 51.345 (1979); New Jersey Rule of Evidence 63(10); North Dakota Evidence Rule 804(b)(3).

The majority opinion treats motivation as an extra factor concerning reliability. Although it may sometimes aid in that inquiry, its principal function is to determine whether or not the hearsay exception is applicable.

There is some evidence that the police coerced Milliron into participating in this drug buy. It appears that Detective Flint, a participant in the drug purchase, informed Milliron after his arrest that he was facing habitual criminal charges. Milliron was asked by defense counsel:

Q: Do you recall telling me that Detective Flint, in so many words, said to you: It looks like this time you bit the big one, and he threatened to have the habitual criminal charges filed, and you wouldn't see your old lady again? . . . A: Not those exact words. ... A: Well, some words to that effect; that I was in trouble, yes.

Report of Proceedings, at 287-88.

For instance, DeHart may have arranged to meet Parris at the same time he met with Milliron so as to deflect suspicion from himself and his source. DeHart may have also had a personal grudge against Parris or may simply have acquiesced in the statements as a method of limiting further inquiries.

If the statements are of dubious reliability, they should have been excluded under the provisions of ER 403. That rule provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Note the close examination referred to by the Sarmiento-Perez court involved the first issue presented by Chambers—whether a state could apply a voucher rule to limit the defendant's cross examination of a witness. Neither the Sarmiento-Perez court nor the majority opinion in Chambers suggests that exculpatory statements must be closely examined.