# Amicus Curiae Brief — Gray v. Maryland

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0095%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 185

## Text

ae

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0095%3A11. Public record. Not legal advice.