# Amicus Curiae Brief — Williamson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 512 U.S. 594

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0522%3A10. Public record. Not legal advice.