Amicus Curiae Brief — Williamson v. United States

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

FREDEL WILLIAMSON

Petitioner,

vs.

UNITED STATES OF AMERICA

Respondent.

ON WRIT OF CERTIORARI TO THE

ELEVENTH CIRCUIT COURT OF APPEAL

BRIEF OF WAYNE COUNTY, MICHIGAN

AS AMICUS CURIAE IN SUPPORT

OF THE RESPONDENT,

THE UNITED STATES OF AMERICA

ining and Appeals

1441 St. Antoine

Detroit, MI 48226

313 224-5792

]

Court, U8, bs

(10) ; erorD. |

; | WAR 25 1994

NO. 93-5256

OFFICE OF THE CLERK

IN THE

STATEMENT OF THE QUESTION

I.

MAY A CONFESSION OR ADMISSION OF

A NONTESTIFYING CODEFENDANT BE

ADMITTED INTO EVIDENCE AS A

DECLARATION AGAINST PENAL

INTEREST WHERE THE FOUNDATIONAL

REQUIREMENTS FOR THE RULE ITSELF

ARE MET, AS THESE ALSO SATISFY

THE CONSTITUTION; AND IS

CONSIDERATION OF CORROBORATIVE

EVIDENCE OF THE TRUTH OF THE

STATEMENT RELEVANT TO THE

FOUNDATIONAL/ CONSTITUTIONAL

INQUIRY?

eofiiea

TABLE OF CONTENTS

Statement of the Question

Index of Authorities

Interest of the amicus

Statement of the Case

Argument

I.

A CONFESSION OR ADMISSION OF A

NONTESTIFYING CODEFENDANT MAY BE

ADMITTED INTO EVIDENCE AS A

DECLARATION AGAINST PENAL

INTEREST WHERE THE FOUNDATIONAL

REQUIREMENTS FOR THE RULE ITSELF

ARE MET, AS THESE ALSO SATISFY

THE CONSTITUTION; CONSIDERATION

OF CORROBORATIVE EVIDENCE OF THE

TRUTH OF THE STATEMENT IS

RELEVANT TO THE

FOUNDATIONAL/ CONSTITUTIONAL

INQUIRY.

Introduction

I.

The Development of the

Confrontation Clause Test:

"Sufficient Indicia of

Reliability So As To Afford the

A Satisfactor

Basis For Evaluating The Trut

of the Statement

- ii -

II.

The Sufficient Indicia of

Reliability Test and

Declarations Against Penal

Interest: What Is Relevant To

The Inquiry?

A)Firmly Rooted Exceptions

B)The Independent Inquiry Into

ae ae tees fe Is Evidence

Corroborat ng the Truth of

Portions of the Statement Relevant?

IIl.

Declarations Against Penal

Interest, the Reliability

Inquiry, and the Lower Courts

IV.

Synthesis

A)The Firmly Rooted Exception Approach

B)Consideration of Corroborative

Evidence

Conclusion

Relief

18

18

22

31

47

47

52

60

62

- iii -

INDEX OF AUTHORITIES

CASE

Bourjaily v United States,

483 US 171, 97 L Ed 2d 144,

107 S&S Ct 2775 (1987)

Bruton v United States,

391 US 123, 88 S Ct 1620,

20 L Ed 2d 476 (1968)

California v Green,

399 US 149, 26 L Ed 2d 489,

90 S Ct 1930 (1970)

Cruz v New York,

481 US 186, 95 L Ed 24 162,

107 S Ct 1714 (1987)

Donnelly v United States,

228 US 243, 277, 57 L Ed 820 (1913)

Dutton v Evans,

400 US 74, 27 L Ed 24 213,

91 S Ct 210 (1970)

Hutlet's Trial,

5 How St. Tr 1185, 1192 (1660)

Idaho v Wright,

111 L Ed 2d 638 (1990)

Lee v Illinois,

476 US 530, 90 L Ed 24 514,

106 S Ct 2056 (1986)

Mancusi v Stubbs,

408 US 204, 33 L Ed 2d 293,

92 S Ct 2308 (1972)

18

25

50

13

49

28

21

15

- iv -

Ohio v Roberts,

448 US 56, 65 L Ed 2d 597,

100 S Ct 2531 (1980)

Parker v Randolph,

442 US 62, 60 L Ed 2d 713,

99 S Ct 2132 (1979)

People v Poole,

444 Mich 151 (1993)

Pointer v Texas,

380 US 400, 13 L Ed 2d 923,

85 8 Ct 1065 (1965)

Powell v Harper,

5 Carr and P 590 (1833)

Standen v Standen,

Peake 32 (1791)

State v Kiewert,

605 A2d 1031 (N.H. 1992)

The Sussex Peerage Case,

8 Eng Rep 1034 (1844)

United States v Bailey,

581 F2d 341 (CA 3, 1978)

United States v Garcia,

897 F2d 1413 (CA 7, 1990)

United States v Inadi,

475 US 387, 89 L Ed 2d 390,

106 S Ct 1121 (1986)

United States v Katsougrakis,

715 F2d 769 (CA 2, 1983)

16

26

45

40

16

40

- Veo

United States v Layton,

855 F2d 1388 (CA 9, 1988)

United States v Lilley,

581 F2d 182 (CA 8, 1978)

United States v Palumbo,

639 F2d 123 (CA 3, 1981)

United States v Riley,

657 F2d 1377 (CA 8, 1981)

United States v Sarmiento-Perez,

633 F2d 1092 (CA 5, 1981)

United States v Seeley,

892 F2d 1 (CA 1, 1989)

United States v Vernor,

902 F2d 1182 (CA 5, 1990)

United States v York,

933 F2d 1343 (CA 7, 1991)

Other Sources

McCormick,

(2d edition)

McCormick

(3d edition)

5 Wigmore, Evidence

5,9

49,50

6,8,9,14,49,50,52

INTEREST OF THE AMICUS

Amicus is the County of Wayne,

Michigan, by the Wayne County

Prosecutor's Office. The Office of the

Wayne County Prosecuting Attorney is the

largest in the State of Michigan, and the

issue before this Court has arisen with

some frequency in the County and thus

within the State, with cases currently

pending involving the issue before the

Court.

Counsel for amicus has appeared

before the Court on four occasions, and

the Wayne County Prosecutor's Office has

appeared on nine occasions. Amicus has

also filed as amicus previously before

the Court, as well as before the Michigan

Supreme Court. The issue before the

Court is of great practical and

jurisprudential importance, and amicus

desires to present its perspective for

the possible assistance of the Court.

STATEMENT OF THE CASE

Amicus concurs with the statement of

the case of the Government,

Respondent.

I.

A CONFESSION OR ADMISSION OF A

NONTESTIFYING CODEFENDANT MAY BE

ADMITTED INTO EVIDENCE AS A

DECLARATION AGAINST PENAL

INTEREST WHERE THE ONAL

REQUIREMENTS FOR THE RULE ITSELF

ARE MET, AS ALSO SATISFY

RELEVANT TO THE

FOUNDATIONAL/CONSTITUTIONAL

INQUIRY.

introduction

When Bruton v United States, 391 us

123, 88 S Ct 1620, 20 L Ed 2d 476 (1968)

was decided, the joinder ana

severance/confrontation clause issue

there was occasioned by the fact that the

codefendant's confession was not

admissible against the defendant under

any recognized hearsay exception, and

thus the issue became whether the jury

Was capable of following a limiting

instruction, limiting the use of the

statement to the declarant. This Court

held not. Bruton was careful to note

that “the hearsay statement inculpating

petitioner was clearly inadmissible

against him under traditional rules of

evidence....we intimate no view whatever

that such exceptions necessarily raise

questions under the Confrontation

Clause...." 391 US at 128, fn 3. At the

time Bruton was decided the Federal Rules

of Evidence were not yet in place, and,

despite the strenuous objections of

evidence scholars and commentators, see

e.g. McCormick, Evidence (2a Edition),

p.673-675, the declarations against

interest hearsay exception was generally

held to apply only to declarations

against pecuniary interest. With the

acceptance of declarations against penal

interest as a hearsay exception, the

Confrontation Clause issues regarding

substantive admission of a nontestifying

codefendant's confession against a

defendant have come to the fore.

I. The Development of the

Confrontation Clause Test:

"sufficient Indicia of

Reliability So As To Afford the

A gee? |

Basis For Evaluating The Tru

of the Statement

Wigmore points out that the

confrontation clause is related to the

rules concerning hearsay, and that the

history of the hearsay rule began only in

the 1500's. Up to that time, though jury

trial had come into being, it was a

common practice for the jury to obtain

information from informed persons not

called into court. Testimony in open

court was a rare event. Testimony in

open court began to develop during the

1500's and 1600's, reversing the earlier

order, with testimony becoming common,

and consultation by the jury with

informed persons not called into court

becoming rare. The question began to

arise whether hearsay was competent

evidence in the presentation of evidence

in court. See 5 Wigmore, Evidence, sec.

1364.

The infamous trial of Sir Walter

Raleigh in 1603 for treason is often

thought of as the progenitor of the

Constitutional Confrontation Clause.

Raleigh had no assistance from counsel,

and would not have been allowed to call

witnesses had he wished to do so. The

only defense of the accused was that the

case against him had to be completely

proved. If it was, there was no need of

witnesses from the accused; if it was

not, there was likewise no need for

witnesses from the accused. Raleigh

insisted that the case could not be

proven unless he faced his accusers.

Reams of deposition testimony by

Raleigh's alleged accomplice were

admitted, depositions which themselves

contained only innuendo and no credible

assertions of substance sufficient to

support a conviction. Yet Chief Justice

Popham refused to produce the alleged

accomplice, Cobham, to testify, stating

that “where no circumstances do concur to

make a matter probable, then an accuser

may be heard in court, and not merely by

extrajudicial statement, but so many

circumstances agreeing and confirming the

accusation in this case, the accuser is

not to be produced." 5 Wigmore 1364, p.

16-17; See California v Green, 399 US

149, 26 L Ed 2d 489, 90 S Ct 1930 (1970)

(fn 9 and 11, p.507-508)

By the later 1600's and early

1700's, the rule against hearsay had come

to be established, with the qualification

that it could be used as corroboration,

and with several exceptions to

application of the rule. Thus, the

common law rule of confrontation was a

rule requiring confrontation, except

where exceptions to the rule of hearsay

existed. Wigmore, supra. In other

words, the right of cross-examination

secured by the common law was not a right

devoid of exceptions. McCormick,

Evidence, p. 580-581; 5 Wigmore 1397,

p.158

The argument that the Confrontation

Clause is absolute, and that thus no

hearsay can ever be admitted into

evidence, has never been accepted. It

has also been argued that the

Confrontation clause constitutionalized

the hearsay rule as it existed at the

time of the adoption of the Sixth

Amendment. This view is equally

untenable. The law of evidence is still

subject to thoughtful alteration, and

this Court has developed a test for

determining whether an alteration in the

law of evidence satisfies the

Confrontation Clause.

In a somewhat early case on the

subject, Pointer v Texas, 380 US 400, 13

L Ed 2d 923, 85 S Ct 1065 (1965), it

was held that the introduction at trial

of an unavailable witness's examination

testimony was constitutionally

impermissible where defendant had no

counsel at the examination and no

opportunity to cross-examine the witness.

Speaking for the Court Justice Black

noted:

It cannot seriously be doubted

at this late date that the

right of cross-examination is

included in the right of an

accused in a criminal case to

confront the witnesses against

him. 13 L Ed 24 at 926.

This sweeping language must, however, be

viewed as dicta, and as dicta impliedly

rejected by later cases, for if taken as

written it would outlaw the use of all

hearsay statements, including those

within the recognized exceptions.

That confrontation cannot so readily

be equated with cross-examination; indeed

that confrontation cannot be viewed as

cross-examination with the exception of

-jll-

those hearsay exceptions recognized at

the time of the adoption of the Sixth

Amendment, is apparent from California v

Green, supra. Involved was a California

statute which allowed the prior

inconsistent statements of a witness

testifying at trial to be admitted as

substantive evidence. The Court noted

that the generally recognized purpose of

the Confrontation Clause is to prevent

trial by ex parte affidavit. Justice

White, speaking for the majority, went on

to discuss the relationship between the

Confrontation Clause and hearsay rules:

While it may readily be conceded

that the 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 com

plete 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....merely because evidence is

admitted in violation of a long-

established hearsay rule does not

lead to the automatic conclusion

plead erates hol en Aas debe reece ad 28 et A

- 12 -

that confrontation rights have been

denied. 26 L Ed 2d at 495.

Justice White further remarked that even

had the witness not been present at

trial, his prior statement, in the form

of examination testimony, could have been

admitted as substantive evidence without

constitutional difficulty, because at his

examination his counsel was not

"significantly limited in any way in the

scope or nature of his cross-examination

of the witness...." 26 L Ed 2d at 501.

In a thoughtful concurrence Justice

Harlan observed that the decision of the

California Supreme Court was the result

of decisions of the United States Supreme

Court which “indiscriminately equated

'confrontation' with cross-examination'":

If ‘confrontation' is to be equated

with the right to cross-examine, it

would transplant the ganglia of

hearsay rules and their exceptions

into the body of constitutional

protections. The stultifying

effect of such a course upon this

aspect of the law of evidence in

both state and federal systems need

ig | be labored, and it is good

that the Court today, as I read its

opinion, firmly eschews that

course. 26 L Ed 2d at 505.

Justice Harlan went on to call for a

"fresh look" at the constitutional

conception of confrontation.

In Dutton v Evans, 400 US 74, 27 L

Ed 2d 213, 91 S Ct 210 (1970) the Court

once again wrestled with the relationship

between the Confrontation Clause and

cross-examination. A Georgia statute,

which allowed admission as substantive

evidence statements of a coconspirator

during the "concealment phase" of the

conspiracy, was attacked on confrontation

grounds. Justice Stewart, writing for a

four justice plurality, with Justice

Harlan concurring, stated that:

The decisions of this court make it

clear that the mission of the

confrontation clause is to advance

a practical concern for the

accuracy of the truth-determining

process in criminal trials by

assuring that ‘the trier of fact

- 14-

(has)a satisfactory basis for

evaluating the truth of the prior

statement.’ (27 L Ed 2d at 227,

citing California v Green, emphasi

added} . —

The Court held that:

From the viewpoint of the

Confrontation Clause, a witness

under oath, subject to

cross-examination, and whose

demeanor can be observed by the

trier of fact, is a reliable

informant not only as to what he

has seen but what a has heard. 27

L Ed 2d at 226.

Justice Harlan, in his concurring

opinion, continued his "fresh look" at

confrontation, reaching the conclusion

that the position espoused by Wigmore is

the correct view:

The Constitution does not prescribe

what kinds of testimonial

statements (dying declarations or

the like) shall be given infra-

udicially, - this depends on the

as 4 y teens oo for the time being

- but only what mode of procedure

shall be followed i.e. a cross-

pe gy By - in the case

given infra-judiciz (emphasis

added). 5 Wigmore, 1397, p. 131.

Justice Harlan, then, reached the

position that questions of hearsay

exceptions and the absence of cross-

examination are not Confrontation Clause

problems at all, but due process

problems. 27 L Ed 2d at 231.

Another case indicating that the

mission of the Confrontation Clause is

not solely cross-examination is Mancusi v

Stubbs, 408 US 204, 33 L Ed 2d 293, 92 S

Ct 2308 (1972). The case dealt with the

use of prior recorded testimony, and the

Court stated:

The focus of the Court's concern

has been to insure that there ‘are

indicia of tt pte eee | which have

‘been widely viewed as determinative

of whether a statement may be

laced before the jury though there

6 no confrontation of the

declarant and to ‘afford the trier

of fact a satisfactory basis for

evaluating the truth of the prior

statement.’ (citations eniteed! .

The Court found the cross-examination

adequate so as to give the testimony

"sufficient indicia of reliability" to

afford "the trier of fact a satisfactory

basis for evaluating the truth of the

prior statement." 33 L Ed 2d at 303.

- 16 =

A somewhat more recent case in the

area is Qhio v Roberts, 448 US 56, 65 L

Ed 2a 597, 100 S Ct 2531 (./80), another

prior recorded testimony case. The Court

observed that the Confrontation Clause

reflects a "preference" for face-to-face

confrontation at trial, and that a

primary interest it secures is that of

cross-examination. However, this

preference may be overcome, principally

upon a showing of sufficient indicia of

reliability.

In United States v Inadi, 475 US

387, 89 L Ed 2d 390, 106 S Ct 1121 (1986)

this Court considered the

constitutionality of FRE 801(d) (2) (E),

the coconspirator's declarations hearsay

exception, in that the Rule does not

require unavailability. Holding that

"Roberts cannot fairly be read to stand

for the radical proposition that no

out-of-court-statement can be introduced

@ 1797 @«

by the government without a showing that

the declarant is unavailable," 106 Ss ct

at 1126, the Court upheld the Rule.

The teaching of these cases, then,

along with others, is that confrontation

cannot be equated with cross~examination,

and that hearsay may be admitted

substantively if there are "sufficient

indicia of reliability so as to provide

the trier of fact a satisfactory basis

for determining the truth of the

statement." It is not the role of the

trial court to determine whether the

statement is true, or to admit it only if

it is subject to no conceivable attack,

but to determine whether there is a

satisfactory basis for the trier of fact

to come to a conclusion as to its

veracity.

- 18 -

II. The Sufficient Indicia of

Reliability Test and

Declarations Against Penal

Interest: What Is Relevant To

The Inquiry?

A) Firmly Rooted Exceptions

One approach to the reliability

inquiry was marked out in Bourjaily v

United States, 483 US 171, 97 L Ea 24

144, 107 S Ct 2775 (1987). The defendant

was charged with conspiracy to distribute

cocaine. At trial the government

introduced taped conversations between an

intermediary and a government informant,

the intermediary, in arranging a sale of

drugs, referring to his “friend" (the

defendant) who would be the ultimate

recipient, and who had certain questions.

At the delivery point the intermediary

and the defendant were arrested, in

possession of funds in the amount of the

agreed purchase price for the drugs. The

Sixth circuit agreed with the trial court

that the government had established by a

- 19 =

preponderance of evidence the existence

of a conspiracy, and that the statements

were in furtherance of it; the court also

rejected a Confrontation Clause

challenge.

This Court, through Chief Justice

Rehnquist, held that FRE 104(a) permits

the court, in deciding to admit a

statement under FRE 801(d)(2)(E) as a

coconspirator's statement in furtherance

of a conspiracy, to consider the hearsay

statement sought to be admitted itself in

making the preliminary factual

determination whether it is more likely

than not that there was a conspiracy

involving the declarant and the party

against whom the statement is offered,

and that the statement was made "in the

course and in furtherance" thereof.

Critically, the Court held that the

Confrontation Clause does not require a

trial court to make a separate inquiry

4

- 20 -

into the reliability of a statement that

satisfies the requirements for admission

under a "firmly rooted" hearsay

exception, the exception for

coconspirator's statements being such a

rule.

One question now before the Court is

whether the declaration against penal

interest hearsay exception is "firmly

rooted," so that a satisfaction of the

foundational requirements of the rule

("so far contrary to penal interest it

would not have been said unless true") is

the end of the inquiry, or whether an

independent inquiry into reliability must

be undertaken, and, if so, what evidence

is relevant to the inquiry. As a related

matter, also at issue is whether, even if

the declaration against penal interest is

not firmly rooted, a rigorous application

of its foundational requirements is

sufficient nonetheless to satisfy the

- 21-

"sufficient indicia of reliability" test.

The course of the law has not run smooth,

which, undoubtedly, has brought this case

to this Court.

B) The Ind ent Inquiry Into

Reliability: Is Evidence

Corroborating the Truth of

Portions of the Statement

Relevant?

Central to the questions involved

here is the decision in Lee v [I]llinois,

476 US 530, 90 L Ed 2d 514, 106 S Ct 2056

(1986). In Lee the trial judge at a

bench trial expressly relied upon

portions of the codefendant's confession

in finding defendant Lee guilty of

murder, squarely presenting the

declaration against penal

interest/Confrontation Clause issue. The

codefendant, Thomas, had implicated both

himself and defendant in the crimes, and

the only apparent theory of admissibility

of his statement against defendant was

the declarations against penal interest

)

H

R

- 22 -

exception. Justice Brennan for a five

member majority declined to accept the

state's characterization of "the hearsay

involved in this case as a simple

‘declaration against penal interest.'

That concept defines too large a class

for meaningful Confrontation Clause

analysis. We decide this case as

involving a confession by an accomplice

which incriminates a criminal defendant."

106 S Ct at 2064, fn 5. In other words,

Lee involved a declaration against penal

interest, but a particular kind or sort

of declaration against penal interest;

namely one which declares not only that

the declarant is guilty of criminal

conduct but that another party is also.

Under these circumstances, the majority

found that the State's "grounds for

holding Thomas' statement to be reliable

with respect to Lee's culpability" did

not meet the Confrontation Clause

standard of demonstrating substantial

indicia of reliability.

This Court found reliability lacking

primarily due to its conclusion that

there was a clear divergence between the

confession of the codefendant and that of

the defendant as to the participation of

the parties in the murders--"The

discrepancies between the two go to the

very issues at trial: the roles played by

the two defendants in the killing of

Odessa, and the question of premeditation

in the killing of Aunt Beedie." 106 S Ct

at 2065. Because, then, of these

conflicts, and the well-recognized

motivation to shift blame or curry favor,

the majority was "not convinced that

there exist sufficient ‘indicia of

reliability,' flowing from either the

circumstances surrounding the confession

or the ‘interlocking’ character of the

confessions, to overcome the weighty

- 24 <-

presumption against the admission of such

uncross-examined evidence." 106 S Ct at

2065.

Justice Blackmun, for a four member

dissent, observed that in Bruton the

inadmissibility of the codefendant's

statements as against the defendant was

not contested, and that Bruton therefore

only applies to "situations in which the

out-of-court statements are

constitutionally inadmissible against the

defendant," and disagreed with the

majority's conclusions as to reliability,

stating that in the case before the Court

"there is little reason to fear that

Thomas' statements to the police may have

been motivated by a desire to shift blame

to petitioner." 106 S Ct at 2068.

Justice Blackmun concluded that "in this

case the practical unavailability of

petitioner's codefendant as a witness for

the State, together with the unusually

@ 28 «

strong and convincing indications that

his statements to the police were

reliable, rendered the confession

constitutionally admissible against

petitioner." 106 S Ct at 2071.

In Lee, neither the majority nor the

dissent took issue with the proposition

that a declaration against penal interest

can be admitted, consistent with the

Confrontation Clause, against a

codefendant; the disagreement was on the

facts. Moreover, both the majority and

the dissent looked to evidence outside

the circumstances surrounding the actual

making of each statement to examine its

reliability; namely, the confession of

the other defendant.

That evidence other than the

circumstances surrounding the making of

the statement at issue can be considered

in the reliability inquiry was also

indicated in Cruz v New York, 481 US

4

a

4

|

- 26 -

186, 95 L Ed 2a 162, 107 S Ct 1714

(1987). Two brothers were tried for

murder, and the confession of each was

admitted at the joint trial, under a

limiting instruction that the jury was to

consider each confession only against the

maker. No redaction was undertaken

because the confessions "interlocked,"

and Parker v Randolph, 442 US 62, 60 L Ed

2a 713, 99 S Ct 2132 (1979) had held (by

a plurality) that in such a situation the

fear that a jury would not follow a

limiting instruction was unfounded.

Based on Parker, the New York courts

affirmed.

A five member majority, through

Justice Scalia, disagreed with the Parker

plurality, and did away with the

interlocking confession doctrine--a

nontestifying codefendant's confession

that incriminates the defendant but is

not directly admissible against him may

- 27 -

not be introduced at their joint trial

even if the jury is instructed not to

consider the codefendant's confession

against the defendant. The majority

reasoned that a codefendant's confession

which confirms the defendants confession

could be enormously damaging where a

defendant is seeking to disavow his

statement--in this situation a jury might

well disregard a cautionary instruction.

However, the Court also remarked that the

defendant's confession does bear on

whether the nontestifying codefendant's

confession has sufficient indicia of

reliability to be directly admissible

against the defendant (without redaction

or a limiting instruction, as 4

declaration against penal interest)

despite the lack of opportunity for

cross-examination. Again, then, this

Court suggested that evidence

corroborating the reliability of the

:

3

Ps

:

statement may be considered in the

reliability inquiry, and not only the

circumstances surrounding the making of

the statement. Then came Idaho v Wright.

In Idaho v Wright, 111 L Ed 2d 638

(1990) the defendant, a woman, was

charged with lewd conduct with a minor

for having jointly committed the crimes

against her two daughters (one 5 1/2, the

other 2 1/2) by holding them down to

permit her codefendant to have sexual

intercourse with each. The examining

pediatrician, who examined the younger

girl, asked her whether sexual abuse

occurred between her and the two

codefendants, and was allowed to testify

to her answers. She did not testify at

trial, as she was found not competent.

The trial court admitted the statements

under IRE 803(24), the Idaho analogue to

the federal "catch-all" hearsay

exception, which requires a showing of

circumstantial guarantees of

trustworthiness, as well as materiality,

and a sort of necessity.

The Idaho Supreme Court majority

found that the interview with conducted

by the doctor lacked sufficient

"procedural safeguards" so as to provide

sufficient indicia of trustworthiness

under the Confrontation Clause, relying

principally on the fact that the session

was not recorded on videotape, and that

leading questions were used (the child,

it should be remembered, was 2 1/2 years

old at the time). The majority also

quoted extensively from developmental

psychology texts and articles.

This Court affirmed, applying the

Court's previously established framework

for review of hearsay exceptions as they

relate to the Confrontation

Clause--whether there were sufficient

indicia of reliability so as to render

3

|

|

)

- 30 -

the statements in question trustworthy,

where a "firmly rooted" hearsay exception

is not involved--the majority found an

absence of sufficient indicia of

reliability. The majority also found

that such indicia must be found from the

totality of the circumstances,

specifically rejecting the elaborate and

specific requirements mandated by the

Idaho Supreme Court, and noted above.

Viewing the totality of the

circumstances, rather than any particular

set of factors, the majority found that

the relevant circumstances are those

surrounding the making of the statement,

and _ not other evidence corroborating the

statement; by way of example, the court

cited spontaneity and consistent

repetition, the mental state of the

child, the use of terminology unexpected

of a child of similar age, the lack of a

motive to fabricate. Largely because of

- 31 -

the suggestive manner of the questioning,

the majority concluded that the child's

Wright,

then, is in tension with Lee and Cruz on

the manner in which reliability is to be

statements were not admissible.

examined, a tension which can be resolved

in this case.

III. Declarations Against Penal

Inquiry, ahd the roeae epst ety

A number of cases from the federal

circuits and from state courts have

addressed the declaration against penal

In United States v

Lilley, 581 F2a 182 (cA 8, 1978), cited

by Petitioner in the petition, the

Government offered into evidence the

interest question.

Statement of defendant's husband, and

argued that it satisfied FRE 804(B) (3) as

an inculpatory declaration against penal

interest (an "inculpatory declaration

against interest" is the shorthand that

3

4

4

2

4

.

’

7

- 32 -

the federal courts have developed for a

declaration against penal interest which

inculpates someone in addition to the

The Eighth Circuit

The court held first that in

fact the statement was not so far

declarant).

disagreed.

contrary to the declarant's penal

interest that it would not have been said

unless true--Mr. Lilley "attempted to

foist the blame" On his wife,

"“exculpating himself, or at least

minimizing his criminal liability." 58)

F2d at 187. Thus, the foundation of the

rule itself was not met. The remaining

discussion regarding inculpatory

statements against interest is dicta.

Moreover, it is dicta not followed by the

Eighth Circuit itself, as demonstrated by

United States v Riley, 657 F2d 1377 (CA

8, 1981).

In Riley the defendant was convicted

of transporting a minor in interstate

- 33 -

commerce for the purposes of

prostitution. The only issue was the

intent of the defendant when he

transported the minor. The statement of

a witness incriminating herself and the

defendant was admitted into evidence.

The court observed by way of introduction

that "The admissibility of collateral

inculpatory declarations against penal

interest under FRE 804(b) (3) presents a

controversial and complex evidentiary

problem." 657 F2d at 1380-1381. The

court found that the case law in the

circuit had "tested inculpatory

declarations under FRE 804(b)(3) and thus

implicitly assumed their admissibility"

(citing cases), 657 F2a at 1382, but

found a lack of any “comprehensive

analysis" in the cases, largely because

in these cases the declaration at issue

"was found to have been inadmissible

under the rule itself, for example,

A RUA EURO PR ite Cele

because the declaration was not in fact

against the penal interest of the

declarant at the time it was made,"

citing Lilley as an example. 657 F2d at

1382. The court went on to accept the

admissibility of inculpatory declarations

against interest, under the requirements

that 1)the declarant is unavailable, as

required by the rule, 2)the statement

must be so far contrary to penal interest

that a reasonable person would not have

said it unless true, and 3) corroborating

circumstances Clearly indicate the

trustworthiness of the statement, the

final requirement viewed as necessary

under the Confrontation Clause. See 657

F2d at 1383, and fn 7. Proceeding to the

analysis, the court found that the

Statement of the declarant was not

against her interest under the

circumstances, failing the second prong

of the test, one contained in the rule of

evidence itself.

The Third Circuit cases of United

States v Palumbo, 639 F2d 123 (CA 3,

1981) and United States v Bailey, 581 F2a

341 (CA 3, 1978) are also relevant,

Palumbo being cited in Petitioner's

Bailey simply

found that the statement was not

petition for certiorari.

sufficiently against interest, because

made after the declarant "had been

offered a bargain involving dismissal of

one count of the indictment against him."

As the court noted, even the Government

"has not pressed its argument on this

point here...." 581 F2d at 345. Bailey

scarcely rejects, either implicitly or

explicitly, the doctrine of inculpatory

declarations against interest.

Palumbo holds that inculpatory

declarations may be admitted. The court

found that the inculpatory statement was

not so far against interest that it would

Set Mee Tew

not have been said unless true, but may

have been said to "curry favor with the

authorities" (though the court noted that

the question was not free from doubt).

The majority also specifically agreed

with the concurring opinion with regard

to its explication of the "subtleties of

the rule and its application to this

case." 639 F2d at 128, fn 5. In that

concurrence Judge Adams discussed in

detail the history of FRE 804(b) (3), to

be discussed subsequently in this

argument, as well as the case law, and

concluded that the rule allows admission

of inculpatory declarations against

interest "provided, of course, that

admission would not abridge the

defendant's rights under the

Confrontation Clause of the Sixth

Amendment." Judge Adams required, then,

the same reliability inquiry as required

by the Eighth Circuit.

- 37 -

In the Fifth Circuit, the case of

United States v Sarmiento-Perez, 633 F2d

1092 (CA 5, 1981) speaks to the question.

The court there Clearly held that, where

the Constitution is satisfied,

inculpatory declarations against interest

are admissible under the rule of

evidence: "...inculpatory statements

against interest are admissible under

Rule 804(b)(3) and the confrontation

Clause of the sixth amendment only if

they meet a three-part test....", the

court citing the same test followed by

the Eighth Circuit, detailed earlier

(unavailability, so far contrary to

interest that would not have been said

unless true, circumstances Clearly

indicating trustworthiness) . In short,

the court held that both the rule of

evidence and the constitution must be

Satisfied for the statement to be

admissibie.

- 38 -

A very important Fifth Circuit case,

involving inculpatory declarations

against interest given py one in custody,

is United States v Vernor, 902 F2d 1182

(CA 5, 1990). There the court began by

noting that “after joining his father in

a clumsy and botched robbery, leaving a

trail of signals worthy of a hired trail

blazer, the time came for Gary Keith

Vernor to answer to a jury...." Three

custodial confessions made by the senior

Vernor were admitted into evidence

against the defendant (the senior Vernor

was convicted at a prior trial, and

refused to testify at his son's trial).

These statements were admitted under FRE

804(b)(3), and the Fifth Circuit

affirmed. In examining them for

reliability, the court observed that the

foundational requirements of the rule

itself go to reliability, as they require

@ showing that the statement "so

- 39 -

far tended to subject (the declarant) to

criminal liability...that a reasonable

man in his position would not have made

the statement unless he believed it to be

true." This threshold was clearly met in

the case before it, held the court. As to

those portions of the statement

incriminating the son, the court found

them also reliable, as the father

“unambiguously took full responsibility

for his own part in the bank robbery. He

made no attempt to minimize his own role

or to shift the blame from himself to

Gary. There is nothing in the record to

support an inference that Fred made the

statements implicating Gary in an attempt

to avenge himself.....There is nothing in

the record that indicates that Fred was

motivated by a desire to curry favor with

his interrogators. There is no evidence

that the police...made any promises to

Fred or they gave him any reason to

believe that it would help him if he

inculpated his son...his statements were

made voluntarily...." 902 F 24 at 1188.

Other circuits have also accepted

the admissibility of declarations against

penal interest, subject to inquiry under

the Confrontation Clause. See e.g United

States v Layton, 855 F2d 1388 (CA 9,

1988) (the court found that a statement

of a nontestifying individual was both a

declaration against penal interest, and

satisfied the Confrontation Clause; the

statement was against penal interest, not

done to curry favor, and not designed to

shift blame); United States v Garcia, 897

F2d 1413 (CA 7, 1990) (finding the

evidentiary inquiry and the

constitutional inquiry to be one and the

Same); United States v Katsougrakis, 715

Fed 769 (CA 2, 1983); United states v

Seeley, 892 F2d 1 (CA 1, 1989) ("the

- 41 -

exception for declarations against penal

interest would seem to be ‘firmly

rooted'"), Plainly, the law in the

federal system allows the admission of

inculpatory declarations against

interest, where consistent with the

Constitution. Of particular additional

interest is the Seventh Circuit case of

United States v York, 933 F2d 1343 (CA 7,

1991).

In York the court considered the

declaration against interest of a

codefendant. The court upheld admission

of the statement against both

Confrontation Clause Challenges and a

Claim that the portions of the statement

inculpating the defendant were not within

the hearsay exception. As to the claim

that the inculpatory portion of the

statement is simply not within the

hearsay exception, the court flatly

rejected it, and for sound reasons. The

court observed that "Admitting

- 42 -

inculpatory statements against interest

recognizes...the broader purpose behind

this and other hearsay exceptions as

well--to permit the use of evidence that

is trustworthy (for whatever particular

reason) and to exclude that which is

unreliable." Moreover, the court pointed

out that

There is little question that

the drafters of the Rules of

Evidence and Congress intended

Rule 804(b)(3) to permit

admission of inculpator

statements where consistent wi

the confrontation clause....The

advisory committee's notes

reflect the view that a

statement admitted under the

rule ' ' 1C ALeEReNTtE

ie < Cc ~tele,eel - . Bigiel:

; -

----Moreover, Congress deleted a

provision from the rule that

would have prohibited the use of

inculpatory statements against

interest, 'to avoid codifying or

attempting to codify,

constitutional evidentiary

principles....' S. Rep. No.

PePEZErts eee Report

discussing this deletion went on

- 43 -

to observe that '(c) odification

of a constitutional principle is

unnecessary and, where the

principle is under develo ent,

often unwise.' 933 F 2d a 1361

(emphasis supplied)

The court concluded that "To be

admissible under rule 804(b) (3), then,

the inculpatory portion of a statement

against interest must be sufficiently

reliable to Satisfy the confrontation

There seems little reason to

clause.

one will do." 933 F 24 at 1361 (emphasis

added).

Two state recent state cases are

also important to the point. The New

Hampshire Supreme Court had occasion to

consider the admissibility of inculpatory

declarations against interest in State v

Kiewert, 605 A2d 1031 (N.H. 1992). The

wife of one perpetrator of the crime

j

4

:

- 44 -

was allowed to testify to a telephone

call she had received from her husband

that he and the defendant had just

committed an assault and robbery, that he

was on th run, and he would not be

coming home any more. Shortly thereafter

the police pulled over the truck stolen

in the robbery, and the witness's

husband, the declarant, committed suicide

as the police approached. The New

Hampshire Supreme Court noted “at the

outset that New Hampshire Rule of

Evidence 804 ‘adopts the Federal Rule

804." NHREv 804 (reporter's notes). We

will, therefore, look to federal cases

interpreting Federal Rule of Evidence 804

to assist us in construing the New

Hampshire rule." 605 A2d at 1034. The

court rejected the defendant's claim that

"the part of the declarant's statement

which incriminated the defendant is not

against the declarant's penal interest

- 45 -

and, therefore, is inadmissible hearsay."

605 A2d at 1035. Discussing many of the

federal cases previously cited by

appellant here, particularly the York

decision, the court held that inculpatory

declarations against interest are

admissible so long as the foundation of

the rule itself is met, and the

Confrontation Clause is met as well; that

is, that there are sufficient indicia of

reliability to afford the trier of fact a

satisfactory basis for evaluating the

truth of the statement (see infra).

Finally, amicus would mention People

v Poole, 444 Mich 151 (1993). There the

Michigan Supreme Court held that an

inculpatory deciaration against may be

admitted if the Confrontation Clause is

satisfied, and discussed factors it

believed appropriate to the reliability

inquiry: weighing in favor of admission

are declarations which are 1) voluntarily

given, 2)made contemporaneously with the

events, 3)noncustodial; that is, made to

family, friends, colleagues, or

confederates, 4)uttered spontaneously at

the initiation of the declarant.

Weighing against admission would be a

statement 1)made to law enforcement

officers at their prompting, 2)a

statement minimizing the role of the

declarant or shifting blame, 3)a

statement made to avenge the declarant or

to curry favor, and 4)a statement where

the declarant had a motive to lie or

distort the truth. The court can also

consider any other circumstances going to

reliability, and the presence or absence

of a particular factor is not decisive,

the totality of the circumstances being

looked to on the reliability inquiry.

That the statement was custodial is not a

factor which weighs in favor of

admission, then, but it is not outcome

determinative on the question.

- 47 -

Iv. Synthes is

The Firmly Rooted Exception

A) }

As stated previously, this Court has

said that "no independent inquiry into

reliability is required when the

evidence ‘falls within a firmly rooted

hearsay exception.'..." Is the

declaration against penal interest a

firmly rooted exception, so that

satisfaction of its foundation (that the

statement is so far against penal

interest that it would not have been said

unless true) also may be said to satisfy

Confrontation Clause reliability

concerns? In United States v Layton,

supra, the court noted that "The Supreme

Court has not decided whether the

declaration against penal interest is

such an exception. Four justices,

however, have issued an opinion so

finding ....This court has expressly

reserved the question without deciding

- 48 -

it....we do not Gecide whether

declarations falling within the scope of

Rule 804(b)(3) are presumptively

reliable." 855 F 22d at 1405, fn 5.

It might seem peculiar to argue that

the declaration against penal interest

exception is "firmly rooted" when it was

not a recognized exception at the time

Bruton v United States was decided, and

did not gain full force until the

promulgation of the Federal Rules of

Evidence. But a careful analysis reveals

that the reason the declaration against

penal interest exception, as contrasted

to the declaration against pecuniary

interest exception, did not have wide

acceptance until relatively recently, is

that for a period of time in the history

of the law of evidence the law went

backwards, as it were, and has now been

restored on its correct path.

- 49 -

Wigmore has fully explained that the

period of history when only declarations

against pecuniary interest and not

declarations against penal interest were

accepted as hearsay exceptions was

aberrant. As he observes, by 1800 it was

fully accepted that "all declarations of

facts against interest” were to be

received (emphasis in original). 5

Wigmore, sec. 1476, p.350. This included

declarations against penal interest. See

e.g. Hutlet's Trial, 5 How St. Tr 1185,

1192 (1660); Standen v Standen, Peake 32

(1791); Powell v Harper, 5 Carr and P 590

(1833); 1 Hale, Pleas of the Crown 306

(1680), all discussed in Wigmore, sec.

1476, fn. 8. However, in The Sussex

Peerage Case, 8 Eng Rep 1034 (1844) the

House of Lords, in a case "not strongly

argued", 5 Wigmore, sec. 1476, p.35l,

"ignored precedents” (McCormick,

Evidence, sec. 278, p.322 (3ra Edition) )

and held that the declarations against

interest hearsay exception was limited to

facts against pecuniary or proprietary

interest, but excluded facts against

penal interest. Wigmore called this a

"

backward step," Placing an "arbitrary

limitation" On the rule, which

unfortunately, was accepted, "although it

was plainly a-novelty at the time of its

inception" (emphasis Supplied), 5

w

igmore, P. 351. Its condemnation by

scholars was universal, until finally

the step backward was retraced. See e g

Wigmore, McCormick, Dennelly v United

States, 228 us 243, 277, 57 L Ea 820

(1913), Holmes dissenting; Lee y

Zllinois, infra, 90 L Ea 2d at 533, fn.

4, Justice Blackmun dissenting.

At least one Circuit has recently

accepted the view that the declaration

against penal interest is firmly rooted,

- Si-

the Seventh Circuit, in the York case.

The court stated:

our holding in Garcia (897 F2d

£4133 {CA 7 1990)) was

tantamount to saying that the

exception is well-rooted within

the meaning of and

, and

...-80 long as the

ncriminating and inculpatory

portions of a statement are

closely related..., if the

circumstances surrounding the

portion of a declarant's

statement inculpating another

are such that the court

determines that the inculpato

portion of the statement is jus

as trustworthy as the rtion of

the statement directly

incriminating the declarant,

there is no need to excise or

sever the inculpatory portion of

the statement (emphasis

supplied, 933 F2d at 1363-1364).

See also the First Circuit case of United

States v Seeley, supra ("the exception

for declarations against penal interest

would seem to be ‘firmly rooted'").

Amicus submits that the declaration

against penal interest is a firmly rooted

hearsay exception, so that if its

foundational requirement is truly met,

the statement, including that part which

inculpates another, is admissible As

noted, the advisory committee notes to

the Federal Rule state that a declaration

against interest "may include statements

related statements

7” Dean Wigmore was

of this same view:

may be accepted

= , not merel

bes Specific fact aga nest

nterest, but also as to every

ecatenent. . wi ore {

(Chadbourn r - ed, "5-334

(emphasis in original)’ me

” Sensbaressten os

Amicus submiis that Wigmore is

correct in his approach that the entire

- $3 -

statement should be admitted because made

while the declarant was in a trustworthy

state of mind. With a dying declaration

or excited utterance, the state of mind

of the declarant is revealed by the

circumstances surrounding the making of

the statement, which reveal a trustworthy

state of mind: one would not lie

regarding the circumstances of his

injuries while in fear of dying, and one

would not lie while speaking under the

excitement caused by a startling event.

The declaration against penal interest is

viewed as trustworthy, however, not only

because of the circumstances under which

it was given, but because of its content;

a person would not likely lie regarding

their participation in a crime. This

means that the trustworthy state of mind

is revealed principally by the content of

the statement, rather solely than by the

circumstances of its making. And, of

course, the circumstances are relevant

a

~-for example, if coerced, the statement

is not reliable despite its content. But

the incriminating nature of the statement

reveals that the declarant is of a state

of mind to speak truthfully regarding the

event, and whatever is said about the

entire criminal episode, including that

incriminating others, is part of what

happened, and should be admissible under

the rule. This does not mean that any

Statement against penal interest is

automatically admissible, for either the

circumstances or the content may show

that the declarant Was not in a

trustworthy state of mind, but of a mind

to shift blame, or curry favor

Exploration of these circumstances is a

part of the admissibility inquiry, but if

this reliability inquiry is satisfied

demonstrating the trustworthy state oa

mind of the declarant, then all facts in

his or her statement which relate to the

criminal event should be admissible under

the rule.

The York court observed that the

inquiry as to whether the declaration

against penal interest was "so far

contrary to penal interest it would not

have been said unless true" is the same

inquiry that would be undertaken under

the Confrontation Clause in any event, so

that the development of two bodies of

case law “when one will do" is not

necessary. The degree to which the

declarant exposes him or herself to

culpability, any shifting of blame,

motive to shift blame or curry favor, any

involuntariness, any threats or promises,

whether the statement is custodial or

not, all go into the inquiry as to

whether the rule has been satisfied, and,

whether the rule be deemed firmly rooted

or not, if reliability is determined

under the rule, then a showing has been

made of "sufficient indicia or

reliability to afford the trier of fact a

satisfactory basis to evaluate the truth

of the statement."

The remaining point is whether, in

determining whether the declaration is

"so far contrary to penal interest it

would not be said unless true," which

includes an examination of factors such

as custody, desire or motive to curry

favor, desire or motive to blame-shift

,

actual blame-shifting, and go on

,

consideration of evidence which

the

supports

truth of facts contained within the

statement by corroborating then can be

Considered, Or whether Only the

"circumstances surrounding the making of

the statement," as stated in idaho vy

Wright, may be considered.

Amicus submits that, at least with

declaration against penal interest,

facts which corroborate the reliability

the

of the Statement, 8s well as the

circumstances Surrounding the making of

- 57 -

the statement, should be considered in

the reliability inquiry. In order to

determine whether the statement is so far

contrary to penal interest it would not

have been said unless true this inquiry

may be necessary. One can admit

liability as an accomplice, while naming

another as the principal. Though the

legal culpability of the two may be the

same, it could still be argued that the

declarant was attempting to shift or

spread blame; however, it could also be

that the declarant was simply accurately

describing the criminal episode. If

there is other evidence supporting the

version of events given by the declarant,

then that evidence is highly probative on

the question of whether the statement

given is "so far contrary to penal

interest it would not have been said

unless true," or was said to shift blame

or share blame. The evidence does go to

reliability, anda Since the question is

wh

ether the trier of fact will have a

satisfactory basis to evaluate the

statement, other corroborative evidence

could certainly be considered by the jury

in determining the weight and credibility

of the evidence, and thus should be

Considered by the trial court in

determining whether a Satisfactory basis

for evaluating the

exists.

truth of the statement

In this regard amicus would point

out that it must be born in mind that the

question is whether there is "sufficient

indicia of reliability" go as to afford

"She_trier of fact a satistactory basis

for evaluating the truth of the prior

Statement," a test which is met here

The question is not whether there is no

other possibility than that, to the

satisfaction of the trial judge (and the

appellate courts) the statement is true

- 59 =-

It is the duty of the court to determine

whether there is a satisfactory basis for

the factfinder to base a decision as to

whether the statement is true or false,

that ultimate decision resting with the

factfinder and not the court.

Amicus submits, then, that the

declaration against penal interest is a

firmly rooted exception, so that

satisfaction of the foundational

requirements for the rule satisfies the

Confrontation Clause test; moreover, even

if the declaration against penal interest

is not viewed as firmly rooted, the

foundational requirements of the rule

encompass the reliability inquiry that

should be undertaken in any event, and in

undertaking that inquiry consideration of

evidence which corroborates the truth of

the statement, and thereby its

reliability, should be permitted, given

that the "trustworthy state of mind" of

the declarant is revealed, with a

declaration against penal interest, by

the content of the statement as well as

the circumstances under which it was

given.

Conclusion

Amicus would request, then, that

this Court hold that satisfaction of the

foundational requirements for the

declaration against interest exception is

sufficient to satisfy the Confrontation

Clause test that there be sufficient

indicia of reliability to afford the

trier of fact a satisfactory basis to

evaluate the truth of the statement (with

the fact that the statement is either

custodial or noncustodial being but one

factor in the inquiry), either because

the declaration against interest is a

firmly rooted hearsay exception, or

because the satisfaction of the

foundational requirements are identical

with the Confrontation Clause inquiry in

any event. In determining whether

¥ - 61 -

sufficient indicia of reliability exist

to afford the trier of fact a

satisfactory basis for evaluation of the

truth of the statement, amicus submits

that the Court should hold that

consideration of evidence which

corroborates the reliability of the

statement, in addition to the

circumstances surrounding the making of

the statement, is relevant to the

inquiry.

- 62 -

Wherefore, amicus respectfully

requests that the Judgment of the

Eleventh Circuit Court of Appeals be

affirmed.

Respectfully submitted,

JOHN D. O'HAIR

Prosecutin Attorney

ph ayne

(ep Onf—

TIMOTHY A. BAUGHMAN

Chief of Research,

Training and Appeals