Amicus Curiae Brief — Gray v. Maryland

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Supreme Court. U.S.

Stop. FiLeE OD

wie

Kos SEP 30 1997

No. 96-8653 CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

KEVIN D. GRAY,

Petitioner,

VS.

STATE OF MARYLAND,

Respondent.

On Writ of Certiorari to

the Court of Appeals of Maryland

BRIEF AMICUS — - : -

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER

CHARLES L. HOBSON*

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Telephone: (916) 446-0345

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

* Attorney of Record

ri

a ee

QUESTION PRESENTED

Is a confession which would qualify as a declaration against

penal interest exempt from the rule of Bruton v. United States

by virtue of being a firmly rooted exception to the hearsay rule?

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

KEVIN D. GRAY,

Petitioner,

vs.

STATE OF MARYLAND,

Respondeni.

MOTION OF AMICUS CURIAE FOR LEAVE TO FILE

BRIEF IN SUPPOR 7 OF THE RESPONDENT

Pursuant to Supreme Court Rule 37.3, the Criminal Justice

Legal Foundation respectfully moves for leave to file the

accompanying brief amicus curiae in support of thc respondent.

Counsel for respondent has consented, but counsel for petitioner

has withheld consent.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a non-

profit California corporation organized to participate in litiga-

tion relating to the criminal justice system as it affects the

public interest. CJILF seeks to bring the due process protection

of the accused into balance with the rights of the victim and of

society to rapid, efficient and reliable determination of guilt and

swift execution of punishment.

The present case presents this Court with the chance to

recognize the changes in the law that have taken place since

Bruton v. United States, 391 U. S. 123 (1968). Declarations

against penal interest are now a firmly rooted exception to the

hearsay rule. Therefore, codefendant confessions can now be

admitted to inculpate defendants, reducing the need for Bruton.

Allowing wider use of voluntary, probative, reliable confessions

furthers the interests of truth and justice. Such a result is

consistent with the interests of victims and society which CJLF

was formed to advance.

For the foregoing reasons, amicus requests leave to file its

brief.

September, 1997

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

TABLE OF CONTENTS

ee Sys) ere i

ED ion 5 Sie owed cumcéooeces iii

Interest of amicus curiae .......... 0.005. ceecees iii

TN Gn a Nedwh on be46 cone once vi

a ac wee ee ek ee Lk og ae l

ELIE TS EE l

Summary of argumemt.....................005. 3

CE PCa We ae dt teks debe ede diac Pek6< SH 5

I

Whether a declaration against penal interest satisfies the

Confrontation Clause is an openissue ............ 6

II

exception is sufficiently firmly rooted to satisfy the

GE oS cb cubis Se cbevecic tes 13

Sk MT no nn bho hk o-p-0 6. 46.0% w « 13

B. The firmly rooted exception.............. 18

Il

Because the statement in the present case would qualify

(v)

vi

TABLE OF AUTHORITIES

Cases

Churro v. United States, 4 F. 34 436 (CA6 1993) ...... 21

Bourjaily v. United States, 483 U. S. 171, 97 L. Ed. 2d 144,

4 Fe of Rr A ee Pe et 16

Bruton v. United States, 391 U. S. 123, 20 L. Ed. 2d 476,

ir Ce, SE «o's os ko nt oO08 oe 3, 5, 6, 7, 20

California v. Green, 399 U. S. 149, 26 L. Ed. 2d 489,

SF Se. 15, 16

Cruz v. New York, 481 U. S. 186, 95 L. Ed. 2d 162,

BPO. Ch CURRED oc os suesecessectsuer 8,9

Donnelly v. United States, 228 U. S. 243, 57 L. Ed. 820,

SED, Ch, SE chi cn a cies odenieds 16, 18, 19

Douglas v. Alabama, 380 U. S. 415, 13 L. Ed. 2d 934,

OG Cl BE cc cdawcdeaes beat aeehett 7

Dutton v. Evans, 400 U. S. 74, 27 L. Ed. 2d 213,

Jb 4: ® | BA A eo Orr a i 14, 15, 22

Estelle v. McGuire, 502 U. S. 62, 116 L. Ed. 2d 385,

ee Ge Gee cnt ad peewee Seb eenres 22, 25

Gray v. State, 667 A. 2d 983 (Md. App. 1995) ........ 3

Harris v. Alabama, 513 U. S. 504, 130 L. Ed. 2d 1004,

ek, SR ee be be peses 15

Idaho v. Wright, 497 U. S. 805, 111 L. Ed. 2d 638,

SORT ee ad ok eee bans < 15, 17

Lee v. Illinois, 476 U. S. 530, 90 L. Ed. 2d 514,

106 S. Ct. 2056 (1986) ....... 5, 9, 10, 14, 20, 21, 25

Mancusi v. Stubbs, 408 U. S. 204, 33 L. Ed. 2d 293,

eRe me: fy Serr rrrrrrerrrrs 14, 16

iM i i A

vii

Mattox v. United States, 156 U. S. 237, 39 L. Ed. 409,

ee 16

McNeil v. Wisconsin, 501 U. S. 171, 115 L. Ed. 2d 158,

CN ee 6

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

86 S. Ct. 1602 (1966) ......... nist dea ol6 ue 20

Ohio v. Roberts, 448 U. S. 56, 65 L. Ed. 2d 597,

Sek Me nD. oceecceunebcc 14, 15, 16, 18

Parker v. Randolph, 442 U. S. 62, 60 L. Ed. 2d 713,

LISS 2 | alle Se 8

Patterson v. New York, 432 U. S. 197, 53 L. Ed. 2d 281,

A ee 15

Snyder v. Massachusetts, 291 U. S. 97, 78 L. Ed. 674,

rs es le Oe ca ted ieee 20

State v. Gray, 687 A. 2d 660 (Md. 1997) ........ Passim

Sussex Peerage Case, 11 Cl. & F. 85, 8 Eng. Rep. 1034

Ste tied eed Fab eduss bOGURs Lexeccer 19

Tennessee v. Street, 471 U. S. 409, 85 L. Ed. 2d 425,

RR SES a ee 16

United States v. Garcia, 897 F. 2d 1413 (CA7 1990).... 20

United States v. Inadi, 475 U. S. 387, 89 L. Ed. 2d 390,

i 6, 20

United States v. Nazemian, 948 F. 2d 522 (CA9 1991) .. 21

United States v. Scopo, 861 F. 2d 339 (CA2 1988) ..... 20

United States v. Seeley, 892 F. 2d 1 (CA1 1989) ...... 21

White v. Illinois, 502 U. S. 346, 116 L. Ed. 2d 848,

Sere Ge SED a n's's oo oO UES 08d BRL bead 14

a

M29 L Ed. 24476, 1148.0. 2431 Miscellaneous

QUOE bs iat binder er 7, 10, 11, 12, 13, 20, 25 Advisory Committee’s Notes on Fed. Rule Evid. 804

AE Sa ee a

Rules of Court

Fed. Rule Evid. 801(d)(2)(E) ... 2... ee ee ee eee 16 )

ES ee ee re 16

SE ccc Cid ccuy hectaaeanen 16

SET goo ws oboers 7, 11, 13, 21, 26

RRR SSS aie TE eee 15, 17

ES i bv eT ORE Tee 1s

OG 0c eS A TO 15

aca. cen ikdn sete adenine et 15 .

Re cn eten veers Chae wn wie 15

Pisa, 'ke ib cite eee a toad 15

SI SS tis Sa adds ic bene 15

ee De Dg ng nb bch 6 eb t 65455 G2 17

United States Constitution

UB; Conm., Rete. D* 6 ion ch ORR 24

Treatises

M. Graham, Federal Practice and Procedure: Evidence

a ey nr 10

5 J. Wigmore, Evidence

(Chadbourn rev. 1974)......... 14, 15, 16, 18, 19, 21

2 J. Strong, McCormick on Evidence (4th ed. 1992) . . 19, 21

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

KEVIN D. GRAY,

Petitioner,

vs.

STATE OF MARYLAND,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE RESPONDENT

SUMMARY OF FACTS AND CASE

On November 10, 1993, Stacey Williams was beaten to

death “by 2 group of six young men.” State v. Gray, 687 A. 2d

660, 661 (Md. 1997).' Anthony Bell was arrested by police

after a preiiminary investigation of the killing. Bell, in a written

statement to the police, implicated himself, Jacquin

Vanlandingham, and petitioner Gray as participants in the

killing. Jbid. Two days after Williams’ death, Vanlandingham

was shot to death in a seemingly unrelated incident. /bid., and

n. 1.

Bell and Gray were tried jointly. The trial court denied

Gray’s motion to sever his and Bell’s trials or to exclude Bell’s

1. Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as

listed on the cover, and not by counsel for any party. No outside contributions

were made to the preparation or submission of this brief.

confession. Jbid. The trial court did order the redaction of

Gray’s and Vanlandingham’s names from the confession. /bid.

At trial, Shay Yarberough “the only witness to Williams’

beating testified that he saw Vanlandingham lift Williams over

his head and drop him on the sidewalk.” /bid. Yarberough also

stated that Gray attempted to do the same, with less success.

Ibid. He also testified that Gray along with the rest of the group

“repeatedly kicked Williams about the ribs, neck, and head.”

Id., at 661-662.

Detective Pennington testified that he arrested and inter-

viewed Bell after investigating the crime. During the interview,

Bell confessed, implicating both Gray and Vanlandingham. /d.,

at 662.

A copy of Bell’s confession was admitted, with blank white

spaces replacing Gray’s and Vanlandingham’s names. /bid.

Defendant testified that he was at a nearby phonebooth calling

his girlfriend during the beating. /bid. Defendant’s girlfriend

affirmed this story, while another defense witness who claimed

to have seen the beating placed defendant in a phonebooth “up

the street” during the killing. Defendant was convicted of

involuntary manslaughter. /bid. The pertinent part of Bell’s

confession read:

“Question, what can you tell me about the beating of

Stacey Williams that occurred on 10, November, 1993?

“Answer, an argument broke out between deletion and

Stacey in the 500 block of Louden Avenue. Stacey got

smacked and then ran into Wildwood Parkway. Me,

deleted, and a few other guys ran after Stacey. We caught

up to him on Wildwood Parkway. We beat Stacey up.

After we beat Stacey up, we walked him back to Louden

Avenue. | then walked over and used the phone, Stacey and

the others walked down Louden.

“Question, when Stacey was beaten on Wildwood

Parkway, how was he beaten?

“Answer, hit, kicked.

“Question, who hit and kicked Stacey?

“Answer, I hit Stacey. He was kicked, but I don’t know

who kicked him.

“Question, who was in the group that beat Stacey?

“Answer, me, deleted, deleted, and a few other guys.

“Question, did anyone pick Stacey up and drop him to

the ground?

“Answer, no, when I was there.

“Question, what was the argument over between Stacey

and deleted?

“Answer, some money that Stacey owed deleted.

“Question, how many guys were hitting on Stacey?

“Answer, about six guys.

“Question, do you have a black jacket with Park Heights

written on the back?

“Answer, yes.

“Question, who else has these jackets?

“Answer, deletion.” Id., at 667-668.

Before the confession’s introduction, the jury was instructed

to consider it against Bell only, and not Gray. /d., at 668.

The Maryland Court of Special Appeals reversed, holding

that the introduction of Bell’s redacted confession violated

Bruton v. United States, 391 U.S. 123 (1968). Gray v. State,

667 4. 2d 983, 985, 990-991 (1995). The Maryland Court of

Appeals reversed, finding no Bruton violation. State v. Gray,

687 A. 2d, at 669.

SUMMARY OF ARGUMENT

Before deciding how a confession must be redacted in order

to satisfy Bruton vy. United States, this Court should first

determine whether Bruton applies. If Bell’s statement could be

admissible against Gray as a “firmly rooted” exception to the

hearsay rule, Bruton does not apply. This case is an appropriate

vehicle to determine how the passage of time has changed the

need for Bruton.

None of this Court’s decisions have categorically disquali-

fied the penal interest exception under the Confrontation

Clause. Bruton’s analysis is colored by the fact that when it

was decided, declarations against penal interest were generally

inadmissible. Cruz v. New York was simply an application of

Bruton’s logic and underlying assumptions to the problem of

interlocking confessions.

Lee v. Illinois must be read in light of the statement it

rejected. Because the statement was apparently self-serving and

motivated by revenge, it was not against declarant’s interest.

Lee only recognizes that such statements cannot qualify under

the Confrontation Clause.

Williamson v. United States demonstrates that the status of

declarations against penal interest under the Confrontation

Clause is still undetermined. The fact that all members of this

Court were willing to consider that such evidence is admissible

under some circumstances demonstrates how much the law has

changed since Bruton.

Under Ohio v. Roberts firmly rooted exceptions to the

hearsay rule satisfy the Confrontation Clause. Declarations

against penal interest fall within one such exception. Their

initial exclusion from the declarations against interest exception

was based on a misreading of the law by the House of Lords.

This archaic view violates common sense. Justice Holmes,

Dean Wigmore, and others demonstrated that people generally

do not incriminate themselves lightly, and are thus unlikely to

lie when they do so. The Holmes-Wigmore view has carried

the day, as the declaration against penal interest exception is

observed by most jurisdictions, including the federal courts.

The standard argument against the admissibility of this

evidence, that the declarant has a motive to incriminate others,

can and has been addressed by the courts. The most likely

motives to cause one to falsely inculpate another are currying

favor, revenge, and exculpation. The first motive can be found

by courts, and is minimized by the giving of Miranda v.

Arizona warnings. Where the declaration is not made in

custody, or where there has been no promise of leniency and the

declarant was read his Miranda rights, there is no reason to

suspect that the statement is an attempt to curry favor.

Revenge may be found from the facts. Lee demonstrates

how this is done and how to address it. Williamson and Lee

show that truly exculpatory statements are not against

declarant’s interest, and thus do not come within the exception.

The confession in the present case comes within the

declaration against penal interest exception. Declarant Bell was

read his Miranda warnings, and he neither was promised nor

received any benefits from his confession. Where he implicated

Gray, he implicated himself equally. As this was a statement a

reasonable person in Bell’s position would not make unless

true, Bell’s statements do not violate defendant’s confrontation

rights.

ARGUMENT

The rule of Bruton v. United States, 391 U. 8. 123, 137

(1968), that admitting an accomplice’s confession violates the

confrontation rights of any codefendant incriminated by the

confession, is based on the assumption that any statement in a

confession inculpating third parties is inadmissible hearsay. /d.,

at 128, n. 3; see also Lee v. Illinois, 476 U. S. 530, 552, n. 5

(1986) (Blackmun, J., dissenting). The present case presents

the opportunity to examine Bruton’s reach in light of nearly two

decades of development of evidence law.

The decision below turned on whether Bruton was properly

applied by deleting the names of those other than the person

confessing from the confession. See State v. Gray, 687 A. 2d

660, 667-669 (Md. 1997). Amicus submits that Bruton does not

apply to the present case. Codefendant Bell’s confession, while

hearsay, would qualify under the declaration against penal

interest exception to the hearsay rule. See Part III, post. As this

exception is now sufficiently “firmly rooted” as a hearsay

exception to satisfy the Confrontation Clause, see Part II B,

post, Bruton should not apply to appropriate uses of statements

against penal interest that inculpate third party defendants.

If Bruton has been narrowed by developments in the law,

this Court should address this issue before issuing further

mandates on Bruton’s proper execution. In addition to limiting

applications of the Bruton rule, this narrowing would also

influence how the decision is applied. Since statements against

penal interest are no longer per se inadmissible, as was the case

when Bruton was decided, see 391 U. S., at 128, n. 3, the need

for vigilance against purportedly improper inculpation may be

relaxed. Thus the propriety of the use of the confession in the

present case should be influenced by the rebirth of the declara-

tion against penal interest as a generally accepted hearsay

exception.

Amicus is not asking this Court to overrule Bruton; there

will be times when the Confrontation Clause should bar a

codefendant’s confession from inculpating defendant. How-

ever, Bruton should be limited. Voluntary “[a]dmissions of

guilt” are “not an evil but an unmitigated good... .” McNeil v.

Wisconsin, 501 U. S. 171, 181 (1991). Rules excluding this

evidence such as Bruton, should be limited to those instances

where they clearly advance the cause of accuracy. The Con-

frontation Clause requires no more. See United States v. Inadi,

475 U.S. 387, 396 (1986).

I. Whether a declaration against penal interest satisfies

the Confrontation Clause is an open issue.

Although the use of accomplice confessions to inculpate

codefendants has led to the reversal of convictions by this

Court, the practice has not been categorically banned under the

Confrontation Clause. Instead, the decisions rejecting such

evidence have either assumed such evidence to be inadmissible,

or have dealt with a statement that was not truly against the

declarant’s penal interest. The validity of declarations against

penal interest is demonstrated by the federal penal interest rule,

Federal Rule of Evidence 804(b)(3), and its interpretation in

Williamson v. United States, 512 U. 8. 594 (1994),

As noted earlier, the Bruton Court dealt with a hearsay

Statement against penal interest that was inadmissible as a

matter of federal law.

“We emphasize that the hearsay statement inculpating

petitioner was clearly inadmissible against him under

traditional rules of evidence .... There is not before us,

therefore, any recognized exception to the hearsay rule

insofar as petitioner is concerned and we intimate no view

whatever that such exceptions necessarily raise questions

under the Confrontation Clause.” Bruton v. United States,

391 U.S. 123, 128, n. 3 (1968) (emphasis added).

The Bruton Court attacked the confession’s inculpatory

effect on the nonconfessing defendant. See id., at 136 (“Not

only are the incriminations devastating to the defendant but

their credibility is inevitably suspect”). This must be read in the

context of its inadmissibility with respect to defendant.’ The

inherent suspicion accorded accomplice testimony is substan-

tially a product of history; in many circumstances accomplice

testimony is now given more credence than when Bruton was

2. Douglas v. Alabama, 380 U. S. 415 (1965) is distinguishable for similar

reasons. Douglas’ accomplice Loyd, who had signed a written confession, had

been tried separately and convicted. /d., at 416. He was called to testify at

Douglas’ trial while his appeal was still pending, and invoked his self-

incrimination privilege cach time he was asked about the crime. /bid. Loyd

was then declared a hostile witness and his confession, which implicated

Douglas, was read to him in the form of a series of questions. This evidence

was inadmissible against Douglas under Alabama law, but the state appellate

court held that Douglas waived his rights because he had “stopped objecting ”

Id., at 418. Since Loyd could not be cross-examined on this inadmissible

evidence, Douglas’ confrontation rights were violated. See id., at 420.

decided. See Part II B, post. Bruton is a product of its times.

If times have changed, so should Bruton.

Cruz v. New York, 481 U. S. 186 (1987) applies Bruton to

a narrow issue left unresolved in Parker v. Randolph, 442 VU. S.

62 (1979). In Parker, the lead opinion held that where the

defendant’s and codefendant’s confessions confirmed each

other, or “interlocked,” the codefendant’s confession, “will

seldom, if ever, be of the ‘devastating’ character referred to in

Bruton ....” 442 U.S., at 73. Therefore, Bruton was unneces-

sary as the right of cross-examination “has far less practical

value to a defendant who has confessed te a crime than to one

who has consistently maintained his innocence.” /bid.

Cruz rejected this reasoning in a continuation of the

assumptions and logic underlying Bruton:

“While ‘devastating’ practical effect was one of the factors

that Bruton considered in assessing whether the Confronta-

tion Clause might sometimes require departure from the

general rule that jury instructions suffice to exclude im-

proper testimony, 391 U. S., at 136, it did not suggest that

the existence of such an effect should be assessed on a case-

by-case basis. Rather, that factor was one of the justifica-

tions for excepting from the general rule the entire category

of codefendant confessions that implicate the defendant in

the crime. It is impossible to imagine why there should be

excluded from that category, as generally not ‘devastating,’

codefendant confessions that ‘interlock’ with the defen-

dant’s own confession.” 481 U. S., at 191-192.

As Cruz was an application of Bruton’s analysis, it had to

take as a given Bruton’s assumption that a defendant’s state-

ments against penal interest were generally inadmissible to

inculpate a codefendant. The Cruz Court did, however,

recognize that if this proposition did not hold in certain cases,

then Bruton would be inapplicable. The Cruz Court noted that

while the interlocking property of confessions was irrelevant to

“harmfulness” it was relevant to “reliability.” See id., at 192

(emphasis in original). While an interlocking confession cannot

make admissible a confession that is not directly admissible, it

can at least be part of the “indicia of reliability,” to determine

whether the codefendant’s confession is “directly admissible

against the defendant, . . . despite the lack of opportunity for

cross-exaraina‘ion....” Jd., at 193-194.

Lee v. Illinois, 476 U. S. 530 (1986) leaves unanswered the

question left open in Bruton. Lee involved a confession

implicating an accomplice that was made under particularly

suspicious circumstances. Lee was at the police station in order

to identify a badly burned body found in the housing complex

in which she lived. /d., at 532. A detective became suspicious

when she started to cry as she examined photographs of the

body. He read Lee her Miranda warnings, and asked her about

her missing aunt. Lee eventually admitted that she and her

boyfriend, Edwin Thomas, were involved in the stabbing of

Lee’s Aunt Beedie and her friend Odessa Harris, and that the

body was her aunt’s. /bid. Lee was arrested and signed a

written confession. /bid. In her confession, Lee claimed that

Thomas alone killed Odessa by stabbing her in the back, while

she killed Aunt Beedie under circumstances strongly suggesting

self-defense or a homicide less culpable than murder. See id.,

at 533-534.

Thomas arrived at the police station as Lee was being

interrogated. /d., at 532. Lee had inculpated him enough by

that point, however, that the officers advised Thomas of his

Miranda rights, and then accused him of participating in the

murders. /bid. Thomas then stated that “ ‘he wanted to think

about’ talking to the police.” Jbid.

After Lee finished confessing, the police allowed the lovers

to meet. As the two kissed and hugged, an officer “asked Lee,

in the presence of Thomas, ‘what was the statement you had

just given us implicating Edwin?’ ” /d., at 533. After Lee told

Thomas that he had said to her that “ ‘we wouldn’t let one or

the other take the rap alone,’ ” Thomas decided to talk. /bid.

His statement spread the blame, painting Lee as an active

planner and participant in the murders. See id., at 535. The two

10

were tried jointly without a jury, and both confessions were

used against the defendants. See id., at 536-537. The trial

judge relied on Thomas’ confession for finding Lee guilty of

both murders. /d., at 538.

The Lee Court rejected the contention that Thomas’

confession came under an established hearsay exception.

“We reject respondent’s categorization of the hearsay

involved in this case as a simple ‘declaration against penal

interest.’ That concept defines too large a class for mean-

ingful Confrontation Clause analysis. We decide this case

as a confession by an accomplice which incriminates a

criminal defendant.” id., at 544, n. 5 (emphasis added).

Footnote five must be read in the context of the evidence it

rejected. The Lee Court had strong reason to doubt the veracity

of Thomas’ statements which effectively shifted the blame to

Lee. It noted from the facts that Thomas may well have had a

desire to fabricate his story out of retaliation against Lee or in

order to spread the blame. /d., at 544. This “theoretical

motive” was backed up by the fact that “Thomas contemplated

becoming a witness for the State against Lee.” J/bid.

Thomas’ statement is thus best viewed as not being a true

declaration against Thomas’ penal interest. See M. Graham,

Federal Practice and Procedure: Evidence § 6795, p. 806, n. 8

(interim ed. 1992). Simply because some of Thomas’ state-

ments may have tended to incriminate him did not render it

against his penal interest for the purpose of the hearsay excep-

tion. To label Thomas’ dubious, blame-spreading statement as

against his penal interest “defines too large a class for meaning-

ful Confrontation Clause analysis.” Lee, 476 U. S., at 544, n. 5.

Lee only disapproved of an improper use of the penal interest

question. The fate of a proper use of this rule is still undeter-

mined.

This conclusion is reinforced by Williamson vy. United

States, 512 U. S. 594 (1994). In Williamson, Reginald Harris

was arrested after a stop and search of his car yielded 19

kilograms of cocaine in two suitcases in the trunk. 512 U. S.,

11

at 596. Soon after the arrest, Harris was interviewed over the

telephone by Special Agent Walton of the Drug Enforcement

Agency. /bid. Harris told Agent Walton that he received the

cocaine from an unidentified Cuban in Fort Lauderdale, but that

it actually belonged to Williamson and was to be delivered to a

particular dumpster that night. Jbid. Harris subsequently

fleshed out this story in a personal interview with Agent

Walton. See ibid.

As Agent Walton started to arrange a controlled delivery of

the cocaine, Harris changed his story. Harris said that he had

lied about the Cuban and other details. /d., at 597. Harris said

that the truth was that he was transporting the cocaine to Atlanta

for Williamson, who had been travelling in front of Harris in a

rental car. Williamson, therefore, had seen Harris’ car being

searched by police, making a controlled buy impossible. See

ibid.

Harris said that he lied because he feared Williamson. He

did not want his story recorded, and refused to sign a written

version of his confession. Walton testified that he made no

promise of help to Harris other than reporting any cooperation

to the Assistant United States Attorney. See ibid.

Harris refused to testify at trial, even after being given

immunity and compelled by a contempt order. Therefore, the

trial court allowed Agent Walton to relate Harris’ story as a

statement against penal interest, Fed. Rule Evid. 804(b)(3).

Ibid. The Court of Appeals affirmed Harris’ conviction against

a Confrontation Clause attack. /d., at 598.

In a partially divided opinion, the Williamson Court

established the scope of Rule 804(b)(3). A majority of the

Court held that in order to qualify as a statement against penal

interest, the statement must be truly inculpatory; collateral

statements would not qualify for the hearsay exception, even if

linked to other self-inculpatory statements. See id., at 600-601.

The majority split over how to apply this holding to the case

before the Court. Four of the six justice majority saw Harris’

Statement as inadmissible on its face as “Harris’ arguably

12

inculpatory statements are too closely intertwined with his self-

serving declarations to be ranked as trustworthy,” id., at 608

(Ginsburg, J., concurring in part, and concurring in the judg-

ment), but would remand the case for harmless error analysis.

Id., at 610. The remaining members of the majority held that

case should be vacated and remanded for further findings on

whether Harris’ statements were “truly self-inculpatory.” See

id., at 604 (O’Connor, J.). The three remaining justices took a

broader approach to Rule 804(b)(3) and would allow in some

noninculpatory collateral statements. See id., at 620 (Kennedy,

J., concurring in the judgment). This concurrence would

remand the case for analysis under its standard. /d., at 621.

Although this case did not reach the Confrontation Clause

issue, see id., at 605 (O’Connor, J.), the part of the lead opinion

not joined by a majority of the Court hints that statements

against penal interest may sometimes inculpate third party

defendants without violating the Confrontation Clause. “We

note, howevez, that the very fact that a statement is genuinely

self-inculpatory—which our reading of Rule 804(b)(3)

requires—is itself one of the ‘particularized guarantees of

trustworthiness’ that makes a statement admissible under the

Confrontation Clause.” /bid. (citing Lee, supra, 476 U. S., at

543-545). This statement left undecided the question of

whether the statement against interest exception “is ‘firmly

rooted’ for Confrontation Clause purposes.” Jbid.

Neither of the other opinions generally banished statements

against penal interest under Confrontation Clause grounds.

Justice Ginsberg’s concurrence did cite Confrontation Clause

precedents in support of the assertion that statements implicat-

ing others have trustworthiness and Confrontation Clause

problems. See id., at 608. These concurring justices formed the

part of a majority opinion that at least contemplated admitting

such statements against codefendants. See id., at 603 (major-

ity). While Justice Kennedy’s concurrence does not address the

Confrontation Clause, the fact that it takes a broader view than

the majority of what is admissible under the penal interest

exception, see id., at 616 (“the conclusion reached by the Court

TT

13

today——-would ‘eviscerate the against penal interest excep-

tion’ ”), strongly implies a willingness to admit at least some

statements against penal interest over Confrontation Clause

Williamson did not fix the relationship between statements

against penal interest and the Confrontation Clause. The Court

was confronted with a statement that in some ways looked even

less credible than the one summarily rejected in Lee. The

confession in Lee implicated both defendants equally, see ante,

at 9; the confession in Williamson portrayed Harris as a little

fish acting under the direction of the much larger catch,

Williams. See ante, at 11. Harris’ confession contradicted an

earlier one he made on several key points, and he refused to

make a written statement of it. See ante, at 10-11. In spite of

this, a majority of this Court was willing to consider the

possibility that Harris’ unredacted statement was still admissi-

ble. See id., at 605 (O’Connor, J.); id., at 621 (Kennedy, J.,

concurring).

This is a very far distance traveled from a Bruton opinion

which abruptly dismissed similar evidence in a footnote. See

ante, at 7. Williamson and Rule 804(b)(3) reflect more than a

change in federal evidence law. They represent the penal

interest exception’s coming of age. The now-firm rooting of

this doctrine has crucial implications for Bruton and the

Confrontation Clause it sought to interpret.

Il. An appropriately interpreted declaration against

penal interest exception is sufficiently firmly rooted to

satisfy the Confrontation Clause.

A. The Roberts Rule.

The seemingly straightforward language of the Confronta-

tion Clause (“the accused shall enjoy the right . . . to be con-

fronted with the witnesses against him”) creates a problem.

Courts seem to have but one of two choices for the Confronta-

tion Clause. At one extreme, the clause would prevent any

14

hearsay testimony from being admitted against criminal

defendants. The other approach distinguished between wit-

nesses and declarants. The Confrontation Clause would apply

only to actual witnesses against the defendant. See Dutton v.

Evans, 400 U. S. 74, 95 (1970) (Harlan, J., concurring). Cross-

examination of testimonial statements which are given “ ‘infra-

judicially,’ ” such as dying declarations, would be governed by

the law of evidence instead of the Constitution. See id., at 94.

Resolving this question is made even more difficult by the

relatively scant history concerning the framers’ intent behind

the words of the Confrontation Clause. See White v. Illinois,

502 U. S. 346, 359 (1992) (Thomas, J., concurring); Dutton,

400 U. S., at 95 (Harlan, J., concurring).

This Court resolved the hearsay dilemma by choosing a

third way. It was impractical and unfair to ban a whole body of

often trustworthy and highly probative evidence from the

prosecution’s arsenal. Thus, this Court rejects this approach,

which “would abrogate virtually every hearsay exception, . . . as

unintended and too extreme.” Ohio v. Roberts, 448 U.S. 56, 63

(1980). Nor has it adopted the limited, physical confrontation

approach, see White, 502 U. S., at 352, in spite of its formidable

adherents and their strong arguments on its behalf. See Dutton,

400 U. S., at 93-100 (Harlan, J., concurring); 5 J. Wigmore,

Evidence § 1397, p. 159 (Chadbourn rev. 1974). Instead, this

Court has found “success in steering a middle course among

proposed alternatives” for the Confrontation Clause, Ohio v.

Roberts, 448 U. S., at 68, n. 9, by examining the reliability of

the hearsay statement. See id., at 65-66. Therefore, hearsay

testimony with sufficient “indicia of reliability” may be

admitted against defendant vader the Confrontation Clause.

See Mancusi v. Stubbs, 408 U. S. 204, 213 (1972).

3. This requirement typically also requires the witness to be unavailable. See ibid.

Sometimes, however, unavailability does not have to be proven. See Roberts,

448 U. S., at 65, n. 7. When the Bruton rule is at issue, the declarant will

typically be unavailable by claiming the self-incrimination privilege. See Lee

v. Illinois, 476 U. S. 530, 549, n. 3 (1986) (Blackmun, J., dissenting).

15

This approach carries its own burdens. Because this middle

way and the hearsay rule serve such similar interests, see

California v. Green, 399 U.S. 149, 155 (1970), and have such

similar roots, see Dutton, supra, 400 U. S., at 86, there is a

danger of this Court’s confrontation decisions subverting the

development of the hearsay rule. See id., at 86, n. 17 (plurality).

Although close, the Confrontation Clause and the hearsay rule

should not be and are not the same. The states are the primary

enforcers of criminal law, see Patterson v. New York, 432 U. S.

197, 201 (1977), and their rules governing criminal trials should

generally be left untouched by the federal courts. See Harris v.

Alabama, 513 U.S. 504, 512 (1995). A case-by-case examina-

tion of the individual reliability of each hearsay statement

admitted against a defendant would turn the hearsay rule into a

quagmire. “Significantly, every jurisdiction has a strong

interest in effective law enforcement, and in the development

and precise formulation of rules of evidence applicable in

criminal proceedings.” Roberts, 448 U. S., at 64. Turning the

Confrontation Clause into a case-by-case statute for the hearsay

rule frustrates these compelling interests.

Roberts addressed these concerns. In addition to allowing

the state to prove the reliability of hearsay on a case-by-case

basis, the Roberts Court held that “[r]eliability can be inferred

without more in a case where the evidence falls within a firmly

rooted hearsay exception.” /d., at 66.

This shines a light through the potentially dark muddle of

the Confrontation Clause. Focusing on hearsay exceptions

comports with how the hearsay rule is applied; a general rule

against hearsay subject to numerous specific exceptions.‘ See

Fed. Rules Evid. 801-806; 5 J. Wigmore, supra, § 1366, at 28-

29 (dividing hearsay rule into the rules requirements, its

exceptions, nontestimonial utterances to which the rule does not

apply, and applying the rule to statements of the tribunal).

4. The “catch-all” hearsay exception, see, e.g., Fed. Rule Evid. 803(24), is not a

firmly rooted exception under Roberts. See Idaho v. Wright, 497 U. S. 805,

817 (1990).

16

The Roberts rule is respectful of, but not wedded to, history.

A long recognized exception is more likely to contain sufficient

“indicia of reliability” to satisfy the Confrontation Clause. See

Mancusi v. Stubbs, 408 U. S. 204, 213 (1972) (noting long

acceptance of prior recorded testimony). Since the hearsay rule,

like the Confrontation Clause, is motivated by accuracy,

compare Tennessee v. Street, 471 U. S. 409, 415 (1985)

(purpose of Confrontation Clause to advance the accuracy of

trials) with 5 Wigmore, supra, § 1362, at 3 (purpose of hearsay

rule to test assertions of witnesses through cross-examination),

common sense dictates that those exceptions which best

promote accuracy will survive the test of time.

The Confrontation Clause does not, however, petrify the

hearsay rule. The best description of the adaptability that is the

essence of this Court’s Confrontation Clause jurisprudence

comes from Roberts. “True to the common-law tradition, the

process has been gradual, building on past decisions, drawing

on new experience, and responding to changing conditions.”

448 U. S., at 64 (emphasis added). This is a necessity in a body

of law as organic as the law of evidence. “The rules of evidence

in the main are based on experience, logic, and common sense,

less hampered by history than some parts of the substantive

law.” Donnelly v. United States, 228 U. S. 243, 277-278 (1913)

(Holmes, J., dissenting). Therefore, “[t]he Court has not sought

to ‘map out a theory of the Confrontation Clause that would

determine the validity of all . . . hearsay exceptions.’ ” Roberts,

448 U. S., at 64-65 (quoting Green, supra, 399 U. S., at 162).

This Court has upheld many of the hearsay exceptions

against Confrontation Clause attack. One of its earliest con-

frontation cases upheld the dying declaration exception. See

Mattox v. United States, 156 U. S. 237, 243 (1895); see also

Fed. Rule Evid. 804(b)(2). The Court has also upheld cross-

examined prior testimony, see Mancusi, 408 U. S., at 213-216;

see also Fed. Rule Evid. 804(b)(1), and the statement of a co-

conspirator made in furtherance of the conspiracy. See Bour-

jaily v. United States, 483 U.S. 171, 183 (1987); see also Fed.

Rule Evid. 801(d)(2)(E).

17

The one commonly recognized exception that does not

satisfy Roberts is the residual exception for statements not

covered by a specific exception that has “equivalent circumstan-

tial guarantees of trustworthiness... .” Fed. Rule Evid.

803(24). In Idaho v. Wright, 497 U. s. 805, 817 (1990), this

Court came to the necessary conclusion that this broad, unspe-

cific standard could not be “a firmly rooted hearsay exception

for Confrontation Clause purposes.”* Unlike a standard hearsay

exception, which “satisfies the constitutional requirement of

reliability because of the weight accorded longstanding judicial

and legislative experience in assessing the trustworthiness of

certain types of out-of-court statements,” ibid., the residual

exception embodied a very different purpose. “The residual

hearsay exception, by contrast, accommodates ad hoc instances

in which statements not otherwise falling within a recognized

hearsay exception might nevertheless be sufficiently reliable to

be admissible at trial.” Jbid. Because this exception is so

diffuse, if the Court were “to agree that the admission of

hearsay statements under the residual exception automatically

passed Confrontation Clause scrutiny, virtually every codified

hearsay exception would assume constitutional stature, a step

this Court has repeatedly declined to take.” /d., at 817-818.

This Court examines hearsay exceptions under the Confron-

tation Clause through a combination of common sense and a

respect for the collective wisdom of legislatures and the courts,

which gives its cases a “common-law tradition ....” Roberts,

448 U. S., at 64. As the next section will demonstrate, declara-

tions against penal interests are now part of that tradition. The

rationale behind the exception makes sense, and its common

sense is reflected in the many jurisdictions that accept this rule.

It is time for this Court to admit declarations against penal

interest into the family of firmly rooted hearsay exceptions.

5. Wright dealt with Idaho's residual hearsay exception which was taken verbatim

from the Federal Rules of Evidence. See 479 U. S., at 811-812; Idaho Rule

Evid. 803(24).

18

B. The Firmly Rooted Exception.

The law of evidence has now evolved to the point that

statements against penal interest can be considered a “firmly

rooted” exception to the hearsay rule under Ohio v. Roberts,

448 U. S. 56, 66 (1980). The sheer common sense of the

proposition that people only rarely falsely incriminate them-

selves is a strong argument for its general acceptance, as Justice

Holmes so eloquently explains:

“The confession of Joe Dick, since deceased, that he

committed the murder for which the plaintiff in error was

tried, coupled with circumstances pointing to its truth,

would have a very strong tendency to make any one outside

of a court of justice believe that Donnelly did not commit

the crime. I say this, of course, on the supposition that it

should be proved that the confession really was made, and

that there was no ground for connecting Donnelly with

Dick. —The rules of evidence in the main are based on

experience, logic, and common sense, less hampered by

history than some parts of the substantive law. There is no

decision by this court against the admissibility of such a

confession; the English cases since the separation of the two

countries do not bind us; the exception to the hearsay rule

in the case of declarations against interest is well known; no

other statement is so much against interest as a confession

of murder, it is far more calculated to convince than dying

declarations, which would be let in to hang a man, (Mattox

v. United States, 146 U. S. 140); and when we surround the

accused with so many safeguards, some of which seem to

me excessive, I think we ought to give him the benefit of a

fact that, if proved, commonly would have such weight.”

Donnelly v. United States, 228 U. S. 243, 277 (1913)

(Holmes, J., dissenting).

The declaration against interest exception, like most other

exceptions to the hearsay rule, developed in the early eighteenth

century. 5 J. Wigmore, Evidence § 1455, p. 323 (Chadbourn

rev. 1974). The “arbitrary limit” of this rule to exclude state-

19

ments against penal interests came about in a poorly argued and

reasoned decision of the House of Lords limiting the rule to

statements against pecuniary or proprietary interest. See id., at

351; Sussex Peerage Case, 11 Cl. & F. 85, 110, 8 Eng. Rep.

1034, 1044 (1844). Although this decision was contrary to

previous interpretations of the rule, see Wigmore, at 350, it was

i ited aicba i i See id., at 351-

This policy was wrong from its inception.

“Was the practice of excluding third-person confessions

in criminal cases justified? It certainly could not be justi-

fied on the ground that an acknowledgment of facts render-

ing one liable to criminal punishment is less trustworthy

than acknowledgment of a debt. The motivation for the

exclusion was no doubt a different one, namely, the fear of

opening the door to a flood of witnesses testifying falsely to

confessions that were never made or testifying truthfully to

confessions that were false. This fear was based on the

likely criminal character of witness and declarant, rein-

forced by the requirement that declarant must be unavail-

able, which made perjury easier to accomplish and more

difficult to punish.” 2 J. Strong, McCormick on Evidence

§ 318, p. 340 (4th ed. 1992).

The distinction from the other accepted hearsay exceptions

was senseless. “This is the ancient rusty weapon that has

always been brandished to oppose any reform in the rules of

evidence, . . . the argumert of danger of abuse. This would be

a good argument against admitting any witnesses at all, for it’s

notorious that some witnesses lie and that it is difficult to avoid

ae deceived by their lies.” 5 Wigmore, supra, § 1477, pp.

58-359.

Wigmore and Holmes argued to admit statements against

penal interest in the context of third party confessions exonerat-

ing criminal defendants. See id., at 359; Donnelly, 228 U. S.,

at 277 (Holmes, J., dissenting). There is no reason inherent to

the Confrontation Clause to limit declarations against penal

20

interest to those exonerating the accused. The Confrontation

Clause is concerned with accuracy, see United States v. Inadi,

475 U. S. 387, 396 (1986), and accuracy is a two-edged sword.

If justice is due equally to the accused and accuser, see Snyder

v. Massachusetts, 291 U. S. 97, 122 (1934), then so is accuracy.

The standard modern argument for excluding the inculpa-

tory use of statements against penal interest is that, while under

arrest, a codefendant has “strong motivation to implicate the

defendant and to exonerate himself” making any statements

“about what the defendant said or did are less credible than

ordinary hearsay evidence.” Bruton v. United States, 391 U.S.

123, 141 (1968) (White, J., dissenting).

Three related motivations—currying favor, revenge, and

exculpation—are most likely to cause someone to implicate

another falsely while also implicating oneself. Currying favor

from the authorities, a motive recognized by the drafters of rule

804(b)(3), see Advisory Committee’s Notes on Fed. Rule Evid.

804, 28 U. S. C. App., p. 790; see also Williamson v. United

States, 512 U. S. 594, 601 (1994), can be identified and

addressed by the courts. The requirement that suspects be

informed of their rights before custodial interrogation, under

Miranda v. Arizona, 384 U. S. 436 (1966), helps to minimize

the threat. The Miranda warnings minimize such dangers by

informing the suspect “that he is faced with a phase of the

adversary system—that he is not in the presence of persons

acting solely in his interest.” /d., at 469.

Where a defendant has been informed of his rights, and no

promises of leniency were made, there is no reason to exclude

declarations against penal interest. See, e.g., Williamson, 512

U. S., at 620 (Kennedy, J., concurring in judgment); United

States v. Garcia, 897 F. 2d 1413, 1421 (CA7 1990); United

States v. Scopo, 861 F. 2d 339, 348 (CA2 1988). Any problem

with efforts to curry favor should therefore be easy to control.

Exculpation and revenge are motives found in Lee v.

Illinois, 476 U. S. 530 (1986). The relative ease with which the

Lee Court uncovered them demonstrates that these difficulties

21

are also readily controllable. The bare facts before the Court

strongly intimated the unacceptable motives behind Thomas’

confession.* Revenge was inferred from codefendant Thomas’

knowledge that Lee had implicated him, and that he had almost

testified for the prosecution. See id., at 544. Thomas’ self-

exculpatory motive was similarly inferable as the nature of his

statement showed a desire to shift blame from himself alone to

a shared blame with the person who implicated him. See ibid.

Separating the hearsay chaff from the declaration against penal

interest wheat in this manner is something that courts do

= See 2 Strong, supra, §319, p. 346, n. 21 (discussing

cases).

With so strong a measure of common sense behind it, it is

understandable that the declaration against penal interest is now

a “firmly rooted” exception to the hearsay rule. The arguments

of Wigmore and Holmes spread throughout the courts, leading

to a relaxation of the rule excluding declarations against penal

interest. See id., at 340-341. The penal interest exception is

now recognized by the federal system, see Fed. Rule Evid.

804(b)(3), and by most of the states. See 5 Wigmore, supra,

§ 1477, pp. 360-362, n. 7, and 1997 Supp., at 587-593. There-

fore, declarations against penal interest are “firmly rooted”

enough to satisfy Ohio v. Roberts, supra, and the Confrontation

Clause. See United States v. Seeley, 892 F.2d 1,2 (CA1 1989)

(Breyer, J.); see also Churro v. United States, 4 F. 3d 436, 437

(CA6 1993); United States v. Nazemian, 948 F. 2d 522, 530-

532 (CA9 1991).

The initial rejection of this exception by the House of Lords,

ana the initial decision of American courts to follow this

accident of history, should not change the analysis. The Roberts

rule and this Court’s other Confrontation Clause cases are

marked by a respect, but not reverence, for history. See ante, at

16-17. This Court does not use the Confrontation Clause to

6. Fora detailed description of the facts in Lee, see ante, at 9-10.

22

stifle needed reforms of the law of evidence with historical

baggage.

“Despite the superficial similarity between the evidentiary

ruie and the constitutional clause, the Court should not be

eager to equate them. Present hearsay law does not merit a

permanent niche in the Constitution; indeed, its ripeness for

reform is a unifying theme of evidence literature. From

Bentham to the authors «f the Uniform Rules of Evidence,

authorities have agreed chat present hearsay law keeps

reliable evidence from the courtroom. If Pointer has read

into the Constitution a hearsay rule of unknown proportions,

reformers must grapple not only with centuries of inertia but

with a constitutional prohibition as well.” Dutton v. Evans,

400 U. S. 74, 86-87, n. 17 (1970) (plurality) (internal

quotations omitted).

The move from the Sussex Peerage Case to Rule 804(b)(3)

is a needed reform that allows reliable evidence into the

courtroom. The Confrontation Clause should not be invoked to

squelch it.

Ill. Because the statement in the present case

would qualify as a declaration against penal interest,

Bruton does not apply.

Before any analysis of Bell’s confession as a declaration

against penal interest, it is necessary to establish the relevance

of attaching this classification to the statement. The confession

was not admitted against Gray; the trial court instructed the jury

not to consider the confession against Gray. See State v. Gray,

687 A. 2d 660, 668 (Md. 1997). This does not effect the

confession’s validity under the Confrontation Clause. The

initial decision to admit the confession against Gray as a

declaration against penal interest is a question of state, not

federal, law. See Estelle v. McGuire, 502 U. S. 62, 67-68

(1991). Before the trial court’s application of Bruton can be

improper, Bruton must apply. If Bell’s confession comes within

23

the declaration against penal interest exception, then it cannot

violate the Confrontation Clause, rendering Bruton irrelevant.

Maryland did more than it had to when it insulated Gray

from Bell’s confession. It could have admitted Bell’s confes-

sion against Gray as a declaration against penal interest without

violating the Confrontation Clause. The fact that Gray was

given more protection than he was entitled to does not render

his conviction unconstitutional.

Bell’s confession is a declaration against penal interest. The

ottesienthn ner ‘al indicia of reliabil-

ity. Bell was read his Miranda rights and waived them before

confessing. See Joint Appendix (“JA”) 54. He was not given

any inducements for talking, see ibid., and he received no plea

bargain, being charged with the same offenses as Gray. See id.,

at 14. Such assurances strongly rebut any notion that Bell was

motivated to tell anything other than the truth.

The text of the confession is consistent with this reading of

Bell’s motive. The overwhelming bulk of Bell’s statement

implicates himself alone or equally with named or anonymous

accomplices. See State v. Gray, 687 A. 2d, at 667-668; ante, at

2-3. Even in its unredacted form, the confession does not try to

exculpate Bell or shift blame towards Gray.

“(Q) What can you tell me about the beating of Stacey

Williams that occurred on 10 November 1993

“(A) An argument broke out between Tank and Stacey

in the 500 blfoc]k [of] Louden Ave. Stacy got smashed and

then ran onto Wildwood Parkway. Me Tank [Vanlanding-

ham], Kevin [Gray (defendant)] and a few other guys ran

after Stacey. We caught up to him on Wildwood Parkway.

We beat Stacey up. After we beat Stacey up we walked him

back to Loudon Ave I then walked over and used the phone.

Stacey and the others walked down Loudon

“(Q) When Stacey was beaten on Wildwood Parkway,

how was he beaten

“(A) Hit, kicked

24

“(Q) Who hit and kicked Stacey

“(A) I hit Stacey, he was kicked but I don’t know who

kicked him

“(Q) Who was in the group that beat Stacey

“(A) Me, Tank, Kevin and a few other guys

“(Q) Do you have the other guys names

“(A) Tank, Kevin and me, I don’t remember who was

out there

“(Q) Did anyone pick Stacey up and drop him to the

ground

“(A) No when I was there.

“(Q) What was the argument over between Stacey and

Tank

“(A) Some money that Stacey owed Tank

“(Q) How may guys were hitting on Stacey

“(A) About six guys

“(Q) Do you have a black jacket with Park Heights

written on the back

“(A) Yeh

“(Q) Who else has these jacket.

“(A) Tank, Kevin

“(Q) After reading this statement would you sign it

“(A) Yes.” J. A. 61-63 (internal references omitted).

Every instance where Gray is inculpated by name, Bell

equally inculpates himself. The only subject where Bell does

not implicate himself is the reason for the beating, the argument

between Tank [Vanlandingham] and the victim, Williams, over

money Williams owed Tank. As Gray is not implicated by this

statement his confrontation rights are not threatened. “In all

criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him... .” U.S. Const.,

25

Amdt. 6 (emphasis added). Although this passage might not

qualify as a declaration against penal interest in the federal

courts, see Williamson v. United States, 512 U.S. 594, 600-601

(1994), a state court may make a contrary interpretation of the

rules of evidence without violating the Constitution. See

Estelle v. McGuire, 502 U. S. 62, 67-68, and n. 2 (1991).

Bell may have attempted to protect Gray during the confes-

sion. While Bell claims not seeing anyone trying to pick

Williams up and throw him down the only eyewitness to testify

identified Gray as trying to do this. Gray, 687 A. 2d, at 661.

This, and the rest of Bell’s testimony sharply contrasts with the

blatant attempt to shift blame in Lee v. Illinois, 476 U. S. 530

(1986), see ante, at 9, or the declaration in Williamson v. United

States, 512 U.S. 594 (1994). See ante, at 11.

The contrast with Williamson is particularly telling. As

noted earlier, the declarant, Harris, told contradictory stories

about Williamson’s culpability, first downplaying Williamson’s

role, then stating that he had lied, and that Williamson was the

source of the drugs. See ante, at 10-11. Harris’ second story,

the one admitted at trial, painted Williamson as the leader and

Harris as no more than a courier. See id., at 597. In spite of

this, the case was remanded to the lower court so that it could

determine whether Harris’ statement was admissible as a

declaration against penal interest. See id., at 604 (O’Connor,

J.); id., at 621 (Kennedy, J., concurring).

Bell’s confession in the present case is much more clearly

self-inculpatory than the one in Williamson. Bell does not shift

responsibility. Instead, he properly shares it with his accompli-

ces. The sharing of guilt is not a form of exoneration; it reflects

the nature of the crime, a savage beating perpetrated by several

men. “Moreover, a declarant’s statement is not magically

transformed from a statement against penal interest into one that

is inadmissable merely because the declarant names another

person or implicates a possible codefendant.” /d., at 606

(Scalia, J., concurring).

26

Bell, Gray, and others were part of a savage group beating

of Stacey Williams, a fact confirmed by the eyewitness testi-

mony. See Gray, 687 A. 2d, at 661-662. Implicating Gray and

others in Williams’ killing was not “in a context where the

declarant is minimizing culpability or criminal exposure.”

Williamson, 512 U. S., at 607 (Scalia, J., concurring). It was the

truth. Bell’s confession was

“a statement which . . . at the time of its making . . . so far

tended to subject the declarant to . . . criminal liability .. .

that a reasonable person in the declarant’s position would

not have made the statement unless believing it to be true.”

Fed. Rule Evid. 804(b)(3).

Since admitting such a statement does not violate a defen-

dant’s confrontation rights, see Part II, ante, Gray’s right to

confrontation has not been violated, no matter how effective the

trial court was in redacting his name from Bell’s confession.

CONCLUSION

The decision of the Maryland Court of Appeals should be

affirmed.

September, 1997

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation