Amicus Curiae Brief — Lilly v. Virginia

| Supreme Court, U.S.

F IL EOD

JAN 20 1999

CLERK

No. 98-5881

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

BENJAMIN LEE LILLY,

Petitioner.

TAY

COMMONWEALTH OF VIRGINIA.

Respondent.

On Writ of Certiorari to the Supreme Court of Virginia

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER

CHARLES L. HOBSON*

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, California 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

* Attorney of Record

QUESTION PRESENTED

Is the declaration against penal interest a firmly-rooted

exception to the hearsay rule under Ohio v. Roberts?

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Whether a declaration against penal interest satisfies the

Confrontation Clause is an open issue ................

Il

An appropriately interpreted penal interest exception is

sufficiently firmly rooted to satisfy the

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CE CUM cdedecicecaccccceccaces

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

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The Virginia Supreme Court’s decision that Mark Lilly’s

statements qualify under the penal interest exception

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(iii)

iv

TABLE OF AUTHORITIES

Cases

Berrisford v. Wood, 826 F. 2d 747 (CA8 1987).......... 24

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

567 & Gk Zr ve Cees vo sscccnsecakeaseebneannas 17

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469, 73 S. Ct. 397

COED... icccnccctédeedassceuessilecesteeeeeee 26

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

fe Bl RR rere ar pecs Be 1, 5, 6, 21

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

GOS. Ce NGG Ce reie av duns abode etal beeenhande 15, 26

Colorado v. Connelly, 479 U. S. 157, 93 L. Ed. 2d 473,

067 &. Ge. SES CHG. cc cdinaccdcndsetdsabensevea 28

Commonwealth v. Goldblum, 447 A. 2d 234 (Pa. 1982)... 24

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

160 6. C2. STRAQOIBIR co ovvkkcccuateea tas: 8,9, 10

Curro v. United States, 4 F. 3d 436 (CA6 1993) ......... 24

Donnelly v. United States, 228 U. S. 243, $7 L. Ed. 820,

$96. Ci SOON. GE. sho cectaae 17, 19, 21, 24

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

05 S. Cu WOON. Bo. a ERR FORA, 6

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

98 6. Ch Sins vk cca 14, 15, 23

Gray v. Maryland, $23 U.S. _, 140 L. Ed. 2d 294,

900 @. Ch MI Ici. i < ciccavdkanceusicsnone 7,8

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

TTY eS |. RRR Meet 15

Harrison v. Commonwealth, 858 S. W. 2d 172

STE TE AIT ECON 24

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

8 |” ha IS mE 16, 18

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

106 S. Ct. 2056 (1986).......... 10, 11, 15, 18, 22, 26, 28

Lilly v. Commonwealth, 499 S. E. 2d 522 (Va. 1998).... 2,3

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

Ns Say OA 6 dbc'n wasn es A056 shoes 15, 16, 17

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

Sa i vs> cc cddenngcebe hese nee ¢aesé 17

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

oes abc abe he oe dean opin tee 28

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

i ne che deec cas and ancduecute one 22

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

100 S. Ct. 2531 (1980). ............ 15, 16, 17, 18, 19, 25

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

io. on aie we 60 baenceesecess 8,9

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

LE rs Perey 15

People v. Dhue, 506 N. W. 2d 505 (Mich. 1993)......... 24

People v. Farmer, 47 Cal. 3d 888, 254 Cal. Rptr. 508,

SP ED on hG Gee cFdUKS eh Soe VeSencececs 16

People v. Garner, 57 Cal. 2d 135, 18 Cal. Rptr. 40,

ED Steele ee hn ck esiibne nee 964 28

People v. Gordon, 50 Cal. 3d 1223, 270 Cal. Rptr. 451,

i en. che eies se bw kewhset ce des 0. 24

People v. Moore, 693 P. 2d 388 (Colo. App. 1984)....... 24

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

SOG. Ca. TID GIIOD. 0c cds cceedetscvevetndsiecetve 21

State v. Gray, 687 A. 2d 660 (Md. 1997) ............5. 7,8

State v. Hoak, 692 P. 2d 1174 (Idaho 1984)............. 24

State v. Kiewert, 605 A. 2d 1031 (N.H. 1992)........... 24

State v. Naas, 409 So. 2d 535 (La. 1981) ..........-.45. 24

State v. Valladares, 664 P. 2d 508 (Wash. 1983)......... 24

State v. Wilson, 918 P. 2d 826 (Or. 1996) ............5. 24

Sussex Peerage Case, 11 Cl. & F. 85,

8 Eng. Rep. 1034 (1844) 2... 0... cece eee eee 20

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

105 GS. Ca. BOFG CAGRB). « csicccccccdapentisenecccsss 16

United States v. Alvarez, 584 F. 2d 694 (CAS 1978)...... 24

United States v. Casamento, 887 F. 2d 1141 (CA2 1989) .. 24

United States v. Garcia, 897 F. 2d 1413 (CA7 1990)...... 22

United States v. Hamilton, 19 F. 3d 350 (CA7 1994)...... 24

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

106 S. Ce. LIST (ISDS)... cccccccvccccesevssscces 7,21

United States v. Katsougrakis, 715 F. 2d 769 (CA2 1983)... 24

United States v. Kelley, 526 F. 2d 615 (CA7 1975)........ 8

United States v. Seeley, 892 F.2d 1 (CAl 1989)......... 24

United States v. Taggart, 944 F. 2d 837 (CAI11 1991)..... 24

United States v. Trenkler, 61 F. 3d 45 (CAI 1995) ....... 24

United States v. Williams, 989 F. 2d 1061 (CA9 1993).... 24

United States v. York, 933 F. 2d 1343 (CA7 1991)..... 8, 24

vii

Watkins v. Sowders, 449 U. S. 341, 66 L. Ed. 2d 549,

ey EPRI SE is ES are 28

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

et eee ee 14, 15, 17, 21

Williamson v. United States, 512 U. S. 594, 129 L. Ed. 2d 476,

Te ES RES Passim

United States Constitution

Uh ech a i as hi ins excsinvs 14

Rules of Court

Fed. Rule Evid. 801(d)(2)(E)........000ccecceccesuees 17

e555 5. 5080 HER ORR 16

BSR Ra cea Cems appre tey: 16

Fed. Rule Evid. 803(24) ............cccecceeeeees 16, 18

SS ESC DELEON Gin RE 16

Fed. Rule Evid. 804(b)(1) .........0ccceeeeceeeeeeeee 17

Pa Be A NI onic cincivc cen cn csdves cases 17

Fed. Rule Evid. 804(b)(3) ..........00eeeeeeeees 5, 12, 22

Idaho Rule Evid. 803(24) .............cccccceeeeuees 18

State Statute

ee, enn re a a 22

7 Treatises

2 J. Strong, McCormick on Evidence (4th ed. 1992)... 20, 22

5 J. Wigmore, Evidence

(J. Chadbourn rev. 1974)........ 16, 20, 21, 22, 23, 24, 27

viii

Miscellaneous

Advisory Committee’s Notes on Fed. Rule Evid. 804,

2B U.S. C. ABR. . cc cescncccssenesccevesevecesens 21

Friedman, Confrontation: A Search for Basic Principles,

06 Geo. L. J. 1011 (199B) occ. c cee sneseescccnss 17, 18

Haddad & Agin, A Potential Revolution in Bruton Doctrine: Is

Bruton Applicable Where Domestic Evidence Rules Prohibit

Use of a Codefendant’s Confession as Evidence Against a

Defendant Although the Confrontation Clause Would Allow

Such Use, 81 J. Crim. L. & Criminology 235 (1990). .... 8

House Judiciary Committee’s Note on Fed. Rule Evid. 804,

2B U.S.C. AMD. oc ccevcescecsedensucue dewccsiose< 23

Kovera, Park, & Penrod, Jurors’ Perceptions of Eyewitness

and Hearsay Evidence, 76 Minn. L. Rev. 703 (1992)..... 7

Miene, Park & Borgida, Juror Decision Making and the

Evaluation of Hearsay Evidence, 76 Minn. L. Rev. 683

(TOURS . vv baccedusiaeedubeenebovsdanensaeasen 6,7

Senate Judiciary Committee’s Note on Fed. Rule Evid. 804,

WB YU. B.C, AM osdvcccccccddvvenkigastdeestoaves 23

IN THE

Supreme Court of the United States

OcTOBER TERM, 1998

BEN)AMIN LEE LILLY,

Petitioner,

vs.

COMMONWEALTH OF VIRGINIA,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a nonprofit

California corporation organized to participate in litigation

relating to the criminal justice system as it affects the public

interest. CJLF seeks to bring the due process protection of the

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

The present case presents this Court with the chance to

recognize the changes in the law that have taken place since

Bruton vy. 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.

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.

Both parties have given written consent to the filing of this brief.

Allowing wider use of voluntary, probative, reliable confessions

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

tent with the interests of victims and society which CJLF was

formed to advance.

SUMMARY OF FACTS AND CASE

Gary Barker, the state’s principal witness against defendant,

shared a room with Mark Lilly, the brother of defendant Benjamin

Lilly. Lilly v. Commonwealth, 499 §S. E. 2d 522, 528 (Va. 1998).

Barker testified that the day before the murder, he, defendant, and

Mark Lilly were at defendant’s home smoking marijuana and

“ ‘drinking.’ ” They decided to go to a friend’s house to “ ‘drink

a little bit with him.’ ” After they discovered that the friend was

not home they broke into the house, stealing liquor, a safe, and

several guns. They subsequently broke open the safe, dividing the

contents. /bid.

The three continued their crime spree the next day. At a

convenience store parking lot in Heathwood, Virginia, they

abducted Alexander DeFilippis and stole his car. They drove to

a remote area by the bank of the New River, near Whitethorne

where defendant shot DeFilippis four times with the stolen pistol,

killing him. Jbid.

The three continued their crime spree of robbing small stores

until DeFilippis’ car broke down. As the three removed stolen

merchandise from the car, the police arrived. The three fled on

foot with Barker and defendant being captured almost immedi-

ately. /d., at 529. While in the police car, defendant asked Police

Chief Whitsett to put his shotgun in defendant’s mouth and pull

the trigger. Whitsett declined, asking defendant, “ ‘if I looked like

a murderer?’ ” /bid. Replying to a comment made by defendant,

Whitsett asked next “ ‘what does a murderer look like anyway?’ ”

Defendant replied, “ ‘me.’ ” Jbid.

Barker and Mark Lilly both gave statements to the police.

Ibid. Before giving his statement, Mark Lilly was informed that

Barker and defendant had stated that he had not committed the

killing. Petitioner’s Brief 6. Mark Lilly’s initial statement “did

not mention the murder and maintained that the other two men

had forced him to commit the robberies.” Lilly, 499 S. E. 2d, at

529. Mark Lilly stated that he only wanted to steal liquor from

defendant’s friend, not the guns. /d., at 533. He also directly

implicated defendant as the instigator of the carjacking and the

triggerman in the killing, claiming that he and Barker “ ‘didn’t

have nothing to do with the shooting [of DeFilippis].’ ” Jbid.

At defendant’s trial, Mark Lilly invoked his self-incrimination

privilege, and his statement was admitted as a declaration against

penal interest. /bid. Defendant was indicted for and convicted of

abducting and robbing DeFilippis, carjacking, murder in the

course of a robbery, using a firearm in the principal offense, and

being a felon in the possession of a firearm. Jd., at 527-528. He

was sentenced to death for the capital murder and 27 years for the

lesser charged offenses. /d., at 528. The Virginia Supreme Court

affirmed his conviction and sentence. /d., at 538. The court

rejected defendant’s Confrontation Clause objection to Mark

Lilly’s statement, holding the that statement of an unavailable

witness made against penal interest is a “firmly rooted” exception

to the hearsay rule. /d., at 534.

After defendant’s trial, Mark Lilly pled guilty to first-degree

murder, and received a 49-year sentence. Petitioner’s Brief 7.

SUMMARY OF ARGUMENT

None of this Court’s decisions have categorically disqualified

the penal interest exception under the Confrontation Clause. The

analysis of Bruton v. United States is colored by the fact that when

it was decided, declarations against penal interest were generally

inadmissible. This same feature is present in the Court’s most

recent confrontation case, Gray v. Maryland. 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 seif-serving and motivated

by revenge it was not against declarant’s interest. Lee only

recognizes that such statements cannot qualify under the Confron-

tation Clause.

Williamson vy. 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.

This extends to the inculpatory use of the penal interest exception,

which is now recognized by many jurisdictions.

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.

The fact that a particular type of hearsay evidence can qualify

as a firmly rooted exception does not end the inquiry, as courts

must still decide whether the particular piece of hearsay is fairly

included within the exception. This Court’s interpretation of the

federal hearsay exceptions should not govern the Roberts rule.

Tying Roberts to this Court’s federal evidence decisions will

effectively stifle innovation in this field, contrary to Roberts and

other Confrontation Clause decisions.

The decision of the Virginia courts to admit Mark Lilly’s

statements as a declaration against penal interest was proper. A

key to the reasonableness of this decision is the fact that Mark

Lilly was informed that his two cohorts cleared him of personally

committing the killing. This distinguishes the present case from

the unreasonable application of the penal interest exception found

in Lee. Mark Lilly’s understanding that he was in the clear for the

murder, other than felony-murder liability as an accomplice to the

robbery, provides the context that demonstrates that his statement

was strongly self-incriminatory, and thus reasonably within the

penal interest exception under Roberts.

ARGUMENT

I. Whether a declaration against penal interest satisfies the

Confrontation Clause is an open issue.

Although the use of one’s confession to inculpate an accom-

plice has led to the reversal of convictions by this Court, the

practice has not been categorically banned under the Confronta-

tion Clause. Instead, the decisions rejecting such evidence have

either assumed such evidence to be inadmissible, as in the most

recent Confrontation Clause decision, see post, at 7-8, or have

dealt with a statement that was not truly against the declarant’s

penal interest. The validity of declarations against penal interest

under the Confrontation Clause is demonstrated by both the

federal penal interest rule, Federal Rule Evid. 804(b)(3), and its

interpretation in Williamson v. United States, 512 U. S. 594

(1994).

This case differs from this Court’s previous cases analyzing

the constitutionality of the inculpatory use of confessions by an

unavailable accomplice. These cases, beginning with Bruton v.

United States, 391 U.S. 123 (1968), dealt with a codefendant’s

confession that also incriminated the other defendant. Although

the present case is factually distinguishable as the confessing third

party pled guilty in a subsequent proceeding, see supra, at 3, the

earlier cases contain language that is capable of being miscon-

strued to prevent the admissibility of declarations against penal

interest. These decisions must be addressed in order to prevent

them from distorting the law of evidence through a misinterpreta-

tion of the Confrontation Clause.

The most famous decision to reject accomplice confessions,

Bruton v. United States (1968) 391 U.S. 123, dealt with a hearsay

statement against penal interest that was inadmissible as a matter

of federal law at that time.

“We emphasize that the hearsay statement inculpating

petitioner was clearly inadmissible against him under tradi-

tional 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 Confron-

tation Clause.” /d., at 128, n. 3 (emphasis added).

The Bruton Court attacked the confession’s inculpatory effect

on the nonconfessing defendant. “Not only are the incriminations

devastating to the defendant but their credibility is inevitably

suspect ....” See id., at 136. This statement must be read in the

context of its inadmissibility with respect to defendant? The

inherent suspicion accorded accomplice testimony is substantially

a product of history; in many circumstances accomplice testimony

is now given more credence than when Bruton was decided. See

Part II B, post. This development in the law of evidence irrevoca-

bly alters the interpretation of the Confrontation Clause.

Bruton’s considerable hostility towards hearsay now looks

outdated. Modern research casts doubt on Bruton’s characteriza-

tion of third party confessions as “devastating to the defendant.”

Mock jury studies have found that jurors do not overvalue hearsay

testimony. See Miene, Park & Borgida, Juror Decision Making

and the Evaluation of Hearsay Evidence, 76 Minn. L. Rev. 683,

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 each 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, the Court held that Douglas’ confrontation rights were violated. See

id., at 419-420.

699 (1992). Adding hearsay evidence to circumstantial evidence

increased the conviction rate by only four percent, while adding

hearsay to eyewitness testimony actually lowered the conviction

rate by seven percent. /bid. In another study comparing evalua-

tions of eyewitness and hearsay testimony

“the results suggest that in general, jurors are skeptical of the

quality and usefulness of hearsay testimony. More specifi-

cally jurors in this study were able to differentiate between

accurate and inaccurate hearsay witnesses.” Kovera, Park, &

Penrod, Jurors’ Perceptions of Eyewitness and Hearsay

Evidence, 76 Minn. L. Rev. 703, 722 (1992).

The greater risk of misleading jurors came from eyewitness

testimony, not hearsay. /bid. Although criminology cannot

explain away the Confrontation Clause, since the clause is

premised on preserving the accuracy of factfinding, see United

States v. Inadi, 475 U. S. 387, 396 (1986), interpretations of the

clause should take this modern research into account. Accomplice

confessions are now less likely to be “devastating” when presented

to modern juries.

Gray v. Maryland, 523 U.S. __, 140 L. Ed. 2d 294, 118 S. Ct.

1151 (1998), the most recent application of Bruton, also presup-

poses that the codefendant’s confession was inadmissible against

the defendant. Like Bruton, Gray also involved an out-of-court

confession that incriminated both the declarant and the defendant.

See id., at 298, 118 S. Ct., at 1153. Defendant and the declarant

were tried jointly as codefendants, and the confession was

admitted against the declarant Bell, with all references to defen-

dant’s or another accomplice’s name replaced with the words

“deleted” or “deletion.” See ibid. Maryland’s high court held that

this did not violate Gray’s confrontation rights and reinstated his

murder conviction after an intermediate appellate court had set it

aside. /d., at 299, 118 S. Ct., at 1153; see State v. Gray, 687 A. 2d

660, 669 (Md. 1997).

This Court reversed, holding that this method of redacting

defendant’s name did not satisfy the Bruton standard. See Gray,

supra, 140 L. Ed. 2d, at 304, 118 S. Ct., at 1157. The Gray

decision did not decide whether hearsay admitted as a declaration

against penal interest could satisfy the Confrontation Clause. The

decision that the confession was rendered inadmissible against

defendant began at the trial court, which granted Gray’s motion to

remove his name from the confession. See State v. Gray, supra,

687 A. 2d, at 662. Since Bell’s confession was never meant to

incriminate Gray, Gray was no more than an application of

Bruton’s damage control mechanism—it did not decide whether

such confessions always unconstitutionally damaged defendant’s

interest in effective confrontation.

Gray’s analysis of the hearsay confession is best understood

in this context. When the decision states that the “ ‘out of court

accusation’ [citation] creates a special, and vital, need for cross-

examination,” Gray, supra, 140 L. Ed. 2d, at 302, 118 S. Ct., at

1156 (quoting Bruton, supra, 391 U. S., at 138 (Stewart, J.,

concurring)), the prejudicial effect of the confession is a given, as

in Bruton. Whether the need for cross-examination vanishes for

a confession admitted as a declaration against penal interest was

not decided in Gray.

Other decisions applying the penal interest exception note

Bruton’s limits. “The Court’s ruling [in Bruton], however, was

predicated upon the inadmissibility of the statement against the

defendant under the rules of evidence ... .” United States v. York,

933 F. 2d 1343, 1362 (CA7 1991) (emphasis in original); United

States v. Kelley, 526 F. 2d 615, 620 (CA7 1975); see also Haddad

& Agin, A Potential Revolution in Bruton Doctrine: Is Bruton

Applicable Where Domestic Evidence Rules Prohibit Use of a

Codefendant’s Confession as Evidence Against a Defendant

Although the Confrontation Clause Would Allow Such Use, 81

J. Crim. L. & Criminology 235, 239 (1990) (“A common miscon-

ception is that Bruton interpreted the Confrontation Clause so as

to prohibit the use of a codefendant’s confession or admission as

evidence against a defendant”). Bruton did not expand the

Confrontation Clause and should not be expanded to limit the

evidence in the present case.

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

narrow issue left unresolved in Parker v. Randolph, 442 U.S. 62

(1979), “whether Bruton applies where the defendant’s own

confession, corroborating that of his codefendant, is introduced

against him.” 481 U. S., at 188. In Parker, the plurality held that

when 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. Justice Blackmun, concurring,

disagreed with the plurality’s reasoning, but found that an

interlocking confession could render the Confrontation Clause

error harmless. See id., at 80-81. Therefore, Bruton was unneces-

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

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

consistently maintained his innocence.” /bid.

Cruz rejected this reasoning in a continuation of the assump-

tions and logic underlying Bruton:

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

that Bruton considered in assessing whether the Confrontation

Clause might sometimes require departure from the genera!

rule that jury instructions suffice to exclude improper testi-

mony, 391 U.S., at p. 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 justifications 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 confes-

sions that ‘interlock’ with the defendant's own confession.”

Cruz, supra, 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 statements

against penal interest were generally inadmissible to inculpate a

codefendant. See id., at 189 (jury instructed not to consider the

statement against Eulogio Cruz, but only against codefendant/

declarant Benjamin Cruz); id., at 193 (holding based on premise

that confession “is not directly admissible against the defendant”).

The Cruz Court cid, 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 confes-

sions was irrelevant to “harmfulness” it was relevant to “reliabil-

ity.” See id., at 192-193 (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

10

“directly admissible against [the defendant], . . . despite the lack

of opportunity for cross-examination ....” /d., at 193-194.

Cruz, like the other Bruton cases, is not about the admissibility

of confessions, but on the capacity of curative instructions to

overcome the prejudicial effect of a confession whose inadmissi-

bility against defendant is a given. When a confession is “not

directly admissible against defendant” the only issue is whether

the Confrontation Clause is violated “even if the jury is instructed

not to consider it against the defendant... .” Jd., at 193.

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

question left open in Bruton. Lee involved a confession implicat-

ing 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. Jd., at 532. A detective became suspicious when she

siarted 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. Jbid. 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. Jbid.

Thomas then stated that “ ‘he wanted to think about’ talking to the

police.” /bid.

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 532-533. 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 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’ confes-

sion 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 meaningful Confron-

tation Clause analysis. We decide this case as a confession by

an accomplice which incriminates a criminal defendant.” /d.,

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.” Jbid.

In light of Thomas’ strong motive to implicate Lee, his

statement is thus best viewed as not being a true declaration

against Thomas’ penal interest. See id., at 544-545. Simply

because some of Thomas’ statements may have tended to incrimi-

nate him did not render it against his penal interest for the purpose

of the hearsay exception. To label Thomas’ dubious, blame-

spreading statement as against his penal interest “defines too large

a class for meaningful Confrontation Clause analysis.” /d., 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 v. United States

(1994) 512 U. S. 594. 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. /d., 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

12

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 traveling 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, Federal Rule of Evidence 804(b)(3). See

Williamson, supra, 512 U. S., at 597. The Court of Appeals

affirmed Harris’ conviction against a Confrontation Clause attack.

Id., at 598.

In a partially divided opinion, the Williamson Court estab-

lished the scope of Rule 804(b)(3). A majority of the Court held

that in order to qualify as a statement against penal interest under

the federal Rules, 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 inculpa-

tory 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 judgment), but would

remand the case for harmless error analysis. /d., at 610. The

remaining members of the majority held that the case should be

vacated and remanded for further findings on whether Harris’

statements were “truly self-inculpatory.” See id., at 604 (opinion

of O'Connor, J.). The three remaining justices took a broader

13

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

tory 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 (opinion of 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, however, 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 guaran-

tees of trustworthiness’ that makes a statement admissible

under the Confrontation Clause.” J/bid. (citing Lee, supra, 476

U. S., at 543-545).

This statement left undecided the question of whether the declara-

tion against penal 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

Ginsburg’s concurrence did cite Confrontation Clause precedents

in support of the assertion that statements implicating 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 (majority). 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 today—would ‘eviscer-

ate the against penal interest exception’ ”), strongly implies a

willingness to admit at least some statements against penal interest

over Confrontation Clause objections.

Williamson did not fix the relationship between statements

against penal interest and the Confrontation Clause. This 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 supra,

14

at 10; the confession in Williamson portrayed Harris as a little fish

acting under the direction of the much larger catch, Williamson.

See supra, at 12. Harris’ confession contradicted an earlier one

he made on several key points, and he refused to make a written

statement of it. See supra, at 12. In spite of this, a majority of this

Court was willing to consider the possibility that Harris’ unredact-

ed statement was still admissible. See Williamson, supra, 512

U. S., at 604 (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

supra, at 6. 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.

II. An appropriately interpreted penal interest

exception is sufficiently firmly rooted to satisfy the

Confrontation Clause.

A. The Roberts Rule.

The seemingly straightforward language of the Confrontation

Clause, U. S. Const., Amdt. 6 (“the accused shall enjoy the right

.. . to be confronted with the witnesses against him”), creates a

problem. Courts seem to have but one of two choices for the

Confrontation Clause. At one extreme, the clause would prevent

any hearsay testimony from being admitted against criminal

defendants. The other approach distinguishes between witnesses

and declarants, applying the Confrontation Clause only to actual

witnesses against the defendant. See Dutton v. Evans, 400 U. S.

74, 94 (1970) (Harlan, J., concurring) (quoting 5 J. Wigmore,

Evidence § 1397, p. 131 (3d ed. 1940)). 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 ibid. Resolving this question is

made even more difficult by the relatively scant history concern-

ing the framers’ intent behind the words of the Confrontation

Clause. See id., at 95; White v. Illinois, 502 U. S. 346, 358-359

(1992) (Thomas, J., concurring).

15

This Court has 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 prosecu-

tion’s arsenal. Thus, the Supreme 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, supra, 502 U. S., at 352. Instead, the Court

has found “success in steering a middle course among proposed

alternatives” for the Confrontation Clause, 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 under the

Confrontation Clause. See Mancusi v. Stubbs, 408 U.S. 204, 213

(1972).

This approach carries its own burdens. Because this middle

way and the hearsay rule serve such similar interests, see Califor-

nia 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 that

application of the Confrontation Clause decisions may in this

manner subvert the development of the hearsay rule. See id., at

86-87, 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

Constitution. See Harris vy. Alabama, 513 U.S. 504, 512 (1995).

A case-by-case examination 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 the rules of evidence

applicable in criminal proceedings.” Roberts, supra, 448 U. S., at

3. This rule typically requires the witness to be unavailable. See Roberts, 448

U. S., at 65. Sometimes, however, unavailability does not have to be proven.

See id., at 65, n. 7. When the penal interest exception rule is at issue, the

declarant will typically be unavailable by claiming the self-incrimination

privilege. See Lee v. Illinois, 476 U. 8. 530, 549, n. 3 (1986) (Blackmun, J.,

dissenting).

16

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,

Roberts 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 holding shines a light through the fog of the Confronta-

tion Clause. Focusing on hearsay exceptions comports with how

the hearsay rule is applied; a general rule against hearsay subject

to numerous specific exceptions.’ See, e.g., Fed. Rules Evid. 802-

804; 5 J. Wigmore, Evidence § 1366, pp. 28-29 (J. Chadbourn rev.

1974) (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).

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, supra, 408 U. S., at 213 (noting long acceptance of prior

recorded testimony). Since the hearsay rule, like the Confronta-

tion 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 confrontation clause is not just a codification

of the rules of hearsay and their exceptions as they existed

historically at common law.” People v. Farmer, 47 Cal. 3d 888,

905, 765 P. 2d 940, 951 (1989) (plurality). The best description

of the adaptability that is the essence of the Supreme Court’s

Confrontation Clause jurisprudence comes from Roberts. “True

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) (rejecting “firmly rooted” status for equivalent state rule).

17

to the common-law tradition, the process has been gradual,

building on past decisions, drawing on new experience, and

responding to changing conditions.” Roberts, supra, 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 h2s upheld many of the hearsay exceptions against

Confrontation Clause attack. One of its earliest confrontation

cases upheld the dying declaration exception. See Mattox v.

United States, 156 U. S. 237, 243 (1895); cf. Fed. Rule Evid.

804(b)(2). The Court has also upheld cross-examined prior

testimony, see Mancusi, supra, 408 U. S., at 213-216; cf. Fed.

Rule Evid. 804(b)(1), and the statement of a coconspirator made

in furtherance of the conspiracy. See Bourjaily v. United States,

483 U.S. 171, 183 (1987); see also Fed. Rule Evid. 801(d)(2)(E).

A particularly informative example of what satisfies the

Roberts rule is found in White v. Illinois, 502 U. S. 346 (1992).

The White Court examined the “ ‘spontaneous declaration’ ” and

“ ‘medical examination’ ” exceptions to the hearsay rule under the

Confrontation Clause. /d., at 348-349. In finding that the

spontaneous declaration exception was firmly-rooted under

Roberts, the White Court noted this exception had a long history

and was broadly accepted. See id., at 355, n. 8. The medical

examination exception was also firmly rooted as it was “similarly

recognized in Federal Rule of Evidence 803(4) and is equally

widely accepted among the states.” /d., at 356, n. 8. This passage

is most important in what it does not contain. Neither history nor

a detailed analysis of the medical examination exception’s

trustworthiness justified its acceptance. The simple fact of its

acceptance under both state and federal rules was enough to justify

an exception with few common law roots, which was essentiaily

created by the Federal Rules of Evidence. See Friedman, Con-

frontation: A Search for Basic Principles, 86 Geo. L. J. 1011,

ai]

18

1019-1020 (1998). This stands in sharp contrast to the more

aggressive analysis found in Lee v. Illinois, 476 U. S. 530 (1986).

See Friedman, 86 Geo. L. J., at 1019. Now, “a synonym for

‘firmly rooted’ it seems, is ‘in the Federal Rules of Evidence.’ ”

Id., at 1020.

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 circumstantial guarantees

of trustworthiness.” Fed. Rules Evid. 803(24). In Idaho v.

Wright, 497 U. S. 805, 817 (1990), this Court came to the

necessary conclusion that this broad, unspecific 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’s interpretation of the Confrontation Clause

examines hearsay exceptions through a combination of common

sense and a respect for the collective wisdom of legislatures and

the courts, consistently with the “common-law tradition .. . .”

Roberts, supra, 448 U. S., at 64. As the next section will demon-

5. Wright dealt with Idaho’s residual hearsay exception which was taken nearly

verbatim from the Federal Rules of Evidence. See 497 U. S., at 811-812; Idaho

Rule Evid. 803(24).

19

strate, declarations 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.

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 Roberts, 448 U. S., at

66. The sheer common sense of the proposition that people rarely

falsely incriminate themselves is a strong argument for its general

acceptance, as Justice Holmes so eloquently explained:

“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. | 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, | think we

ought to give him the benefit of a fact that, if proved, com-

monly would have such weight. The history of the law and

the arguments against the English doctrine are so well and

fully stated by Mr. Wigmore that there is no need to set them

forth at greater length.” Donnelly v. United States, 228 U.S.

243, 277 (1913) (Holmes, J., dissenting).

20

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 (J. Chadbourn

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

against penal interests came about in a poorly 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, 111-114, 8 Eng. Rep. 1034, 1044-1046

(1844). Although this decision was contrary to previous interpre-

tations of the rule, see Wigmore, supra, at 350-351, it was

accepted in both England and the United States. See id., at 351-

352.

This policy was wrong from its inception.

“Was the practice of excluding third-person confessions in

criminal cases justified? It certainly could not be justified on

the ground that an acknowledgment of facts rendering one

liable to criminal punishment is less trustworthy than ac-

knowledgment 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, reinforced by the require-

ment that declarant must be unavailable, 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, viz.,

the argument 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 being deceived by their lies.” 5 Wigmore, supra,

§ 1477, at 358-359.

Wigmore and Holmes argued to admit statements against

penal interest in the context of third-party confessions exonerating

21

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

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

Confrontation Clause to limit declarations against penal interest

to those exonerating the accused. The Confrontation Clause is

corcerned 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. Massachu-

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

The standard modern argument for excluding the inculpatory

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

an accomplice has “strong motivation to implicate the defendant

and to exonerate himself” and therefore 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). While many potential declarations

against penal interest may be made under this circumstance, even

statements made in police custody may be sufficiently credible to

satisfy the Confrontation Clause.

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

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

Rule Evid. 804, 28 U.S. C. App., p. 790, and by the courts, see,

e.g., Williamson v. United States, 512 U.S. 594, 601 (1994), can

6. Amicus ACLU’s request to replace the current mode of Confrontation Clause

analysis with one based on preventing testimonial statements which have not

been cross-examined does not overcome the importance of accurate fact-finding

to this Sixth Amendment right. This Court has already turned down a request

by the United States to depart from its traditional interpretation of the right to

confrontation in favor of an approach limiting the Clause to the prohibition of

ex parte affidavits at trial against the defendant. See White v. Illinois, 502 U.S.

346, 352-353 (1992). This Court summarily dismissed any attempt to depart

from the principles first described in Mattox. “We think that the argument

presented by the Government comes too late in the day to warrant the

reexamination of this approach.” /d., at 353. Amicus CJLF submits that the

same rationale applies to the ACLU’s proposal. If this Court is willing to

overhaul its Confrontation Clause precedent, amicus CJLF submits that it

should not settle for the solution proposed by the ACLU, but should instead

carry out the complete reform advocated by the United States in White.

22

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 mini-

mize 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, supra,

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

States v. Garcia, 897 F.2d 1413, 1421 (CA7 1990). Any problem

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

Exculpation and revenge were found by this Court in Lee v.

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

Lee Court uncovered them demonstrates that these difficulties are

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 prosecu-

tion. 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 im )licated him. See ibid. Separating the hearsay

chaff from the declaration against penal interest wheat in this

manner is something that courts do routinely. See 2 Strong, supra,

§ 319, at 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 and legisla-

tures, 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), California, see Cal. Evid. Code § 1230, and by

most of the other states. See 5 Wigmore, supra, § 1477, at 360-

7. For a detailed description of the facts in Lee, see supra, at 10-11.

23

362, n. 7; id., at 622-626 (Supp. 1998). A small minority of the

states adopting the exception have excluded statements offered

against the defendant in a criminal case. See id., at 622-626

(Arkansas, Indiana, Nevada, New Jersey, North Dakota, Ver-

mont). These rules may have been adopted in the mistaken belief

that such an exception is constitutionally required. The House

added similar language to the federal rule at one point. See House

Judiciary Committee’s Note on Fed. Rule Evid. 804, 28 U. S. C.

App., p. 791; cf. supra, at 8. The language was deleted in the

Senate, which recognized the codification was unwise where the

principle was “under development.” See Senate Judiciary Commit-

tee’s Note on Fed. Rule Evid. 804, 28 U. S.C. App., pp. 791-792.

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

and 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 supra, at 16-17. The

Confrontation Clause is not meant to stifle needed reforms of the

law of evidence with historical baggage.

“Despite the superficial similarity between the evidentiary rule

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 of the Uniform Rules of Evidence, authorities have

agreed that present hearsay law keeps reliable evidence from

the courtroom. If Pointer [v. Texas (1965) 380 U. S. 400] has

read into the Constitution a hearsay rule of unknown propor-

tions, 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

quotation marks omitted).

The journey from the Sussex Peerage Case, supra, to the

modern penal interest exception is a needed reform that allows

reliable evidence into the courtroom. The Confrontation Clause

should not be invoked to squelch it.

Holmes and Wigmore made their strongest arguments for the

penal interest exception as a method for exculpating a criminal

defendant through an out-of-court confession by a third party.

24

See, e.g., Donnelly, supra, 228 U. S., at 277 (Holmes, J., dissent-

ing); 5 Wigmore, supra, § 1477, at 359-360. Like evidence law in

general, the penal interest exception has changed over time. Many

jurisdictions now willingly accept the inculpatory use of declara-

tions against penal interest by third parties or codefendants as

incriminating evidence against defendants. See, e.g., People v.

Gordon, 50 Cal. 3d 1223, 1252-1253, 792 P. 2d 251, 267-268

(1995); United States v. Trenkler, 61 F. 3d 45, 61-62 (CAI 1995);

United States v. Casamento, 887 F. 2d 1141, 1170-1171 (CA2

1989); United States v. Alvarez, 584 F. 2d 694, 701 (CAS 1978)

(admissible with sufficient corroborating evidence); Curro v.

United States, 4 F. 3d 436, 437 (CA6 1993); United States v.

Hamilton, 19 F . 3d 350, 354-357 (CA7 1994); Berrisford v. Wood,

826 F. 2d 747, 751 (CA8 1987); United States v. Williams, 989

F. 2d 1061, 1068 (CA9 1993); United States v. Taggart, 944 F. 2d

837, 840 (CAI1 1991); State v. Wilson, 918 P. 2d 826, 836-837

(Or. 1996); People v. Dhue, 506 N. W. 2d 505, 509 (Mich. 1993);

ifarrison v. Commonwealth, 858 S. W. 2d 172, 175-176 (Ky.

1993); State v. Kiewert, 605 A. 2d 1031, 1034-1035 (N.H. 1992);

People v. Moore, 693 P. 2d 388, 390 (Colo. App. 1984); State v.

Hoak, 692 P. 2d 1174, 1179-1180 (Idaho 1984) (admissible with

“sufficient ‘indicia of reliability’ ”; test not met in present case);

State v. Valladares, 664 P. 2d 508, 511 (Wash. 1983); Common-

wealth v. Goldblum, 447 A. 2d 234, 241-242 (Pa. 1982); State v.

Naas, 409 So. 2d 535, 543, n. 2 (La. 1981).

Few jurisdictions have directly addressed whether the

declaration against penal interest exception is firmly rooted

enough to satisfy the Confrontation Clause. Some courts have

avoided the issue, instead applying the second prong of Roberts’

“particularized guarantees of trustworthiness” test. See, e.g.,

Wilson, supra, 918 P. 2d, at 836-837; Dhue, supra, 506 N. W. 2d,

at 511. Fortunately, other jurisdictions have been more direct,

tackling the problem head on by holding that the penal interest

exception is “firmly rooted,” thus satisfying the Confrontation

Clause. See, e.g, United States v. Katsougrakis, 715 F. 2d 769,

776 (CA2 1983); United States v. York, 933 F. 2d 1343, 1363

(CA7 1991); Berrisford, supra, 826 F.2d, at 751; see also United

States v. Seeley, 892 F. 2d |, 2 (CA1 1989) (Breyer, J.) (“the

exception ‘or declarations against penal interest would seem to be

‘firmly rooted” ”).

25

It is time for this Court to declare the penal interest exception

firmly rooted under the Roberts rule. The constitutional waters

are safe. The widespread acceptance of the penal interest

exception, in both the federal rules and various state rules, and the

almost equally widespread acceptance of its use as inculpatory

evidence provide compelling justification for applying Roberts’

first prong. Any doubts about the wisdom of declaring this

exception firmly rooted vanish in light of the basic soundness of

the rule; declarations that are truly against one’s penal interest are

highly likely to be truthful.

Ill. The Virginia Supreme Court's decision that

Mark Lilly’s statements qualify under the penal

interest exception is reasonable.

The fact that a particular type of hearsay evidence can qualify

as a firmly rooted exception under Ohio v. Roberts, 448 U.S. 56

(1980) does not end the inquiry. Courts still must decide whether

the particular piece of evidence is fairly included within the firmly

rooted exception. This inquiry can involve delicate balancing

between the integrity of the confrontation right and the independ-

ence of local rules of evidence. If the interpretation of the Roberts

exception is too expansive, then the integrity of the Confrontation

Clause is threatened; a firmly rooted exception such as the penal

interest rule cannot be a mere label slapped on any type of hearsay

to render it immune from Confrontation Clause scrutiny. This

concern, while important, should not be allowed to subvert

Roberts’ purpose of fostering in each jurisdiction “the develop-

ment and precise formulation of the rules of evidence applicable

in criminal proceedings.” /Jd., at 64.

Virginia's interpretation of the penal interest exception should

be allowed to qualify under the Roberts rule even if it may be

broader than this Court’s interpretation of the federal penal .

interest exception in Williamson vy. United States, 512 U. S. 594

(1994). Williamson was a nonconstitutional decision; it recog-

mized that a broader rule may be possible under the Confrontation

Clause. See id., at 600 (“Congress certainly could, subject to the

constraints of the Confrontation Clause, make statements admissi-

ble based on their proximity to self-inculpatory statements”). If

26

Williamson and other federal hearsay decisions are allowed to

define the Roberts rule, then they would effectively become

binding on the states as a matter of hearsay law, even if a state

does not precisely follow the federal rules for its own law of

evidence."

As the final authority on federal questions, this Court may be

“infallible” in the construction of the Federal Rules of Evidence.

See Brown v. Allen, 344 U. S. 443, 540 (1953) (Jackson, J.,

concurring in the result). Such infallibility does not, however,

extend to state evidence law.

“However ill-advised would be the constitutionalization of

hearsay rules in federal courts, the undesirability of imposing

those brittle rules on the States is manifest. Given the ambula-

tory fortunes of the hearsay doctrine, evidenced by the

disagreement among scholars over the value of excluding

hearsay and the trend toward liberalization of the exceptions,

it would be most unfortunate for this Court to limit the

flexibility of the States and choke experimentation in this

evolving area of the law.” California v. Green, 399 U.S. 149,

184-185 (1970) (Harlan, J., concurring) (footnote omitted).

Lee v. lilinois, 476 U. S. 530 (1986) provides an example of

what would be an improper application of the penal interest

exception. The codefendant confession in that case was hope-

lessly compromised as a declaration against penal interest because

the police gave the declarant an overwhelming motive to implicate

his codefendant. When the police informed Thomas that Lee had

implicated him, contrary to their previous agreement, he had a

compelling emotional reason to avenge himself and a strong

8. Under this scenario a state court could still theoretically admit hearsay that does

not conform to this Court's interpretation of the federal rules under this Court's

“particularized guarantees of trustworthiness” test. See, e.g , Lee v. Illinois, 476

U. S. 530, 534 (1986). This option is less practical than it appears, due to the

difficulty of satisfying this test. Evidence that does not come under a firmly

rooted exception is deemed “presumptively unreliable, and inadmissable for

Confrontation Clause purposes.” /bid. (emphasis added). Ease of

administration and the risk of losing convictions to appellate reversal or

collateral attack will give state trial courts considerable incentive to rigidly

follow this Court's interpretation of the hearsay exceptions.

27

practical reason to spread the blame by incriminating the person

who blamed him. See supra, at 11.

The present case does not fit the pattern of unreasonableness

demonstrated in Lee. A key distinction between the two is that

Mark Lilly was told by the interrogating officer that Barker and

Lilly both stated that he did not commit the murder, the exact

opposite of the scenario in Lee. See Brief for Petitioner 6.

Besides Mark Lilly, there were three eyewitnesses to Alexander

DeFilippis’ murder: Gary Barker, defendant, DeFilippis himself.

The best witness, DeFilippis, was, of course, dead. Once Mark

Lilly had been informed that the two other potential witnesses

against him had cleared him from any complicity for the actual

killing, he was in the clear. Thus he had little to gain and poten-

tially much to lose by answering any questions about the killing.

This stands in sharp contrast to the vengeful, essentially exculpa-

tory confession in Lee.’

The fact that Mark Lilly’s declaration contains statements that

do not inculpate him does not render its admission. Such state-

ments provide a necessary context, aiding the trier of fact’s

understanding of the declaration.

“Since the principle is that the statement is made under

circumstances fairly indicating the declarant’s sincerity and

accuracy (§1457 supra), it is obvious that the situation

indicates the correctness of whatever he may say while under

that influence. In other words, the statement may be accepted,

not merely as to the specific fact against interest, but also as

to every fact contained in the same statement.” 5 J. Wigmore,

Evidence § 1465, p. 339 (Chadbourn rev. 1974) (emphasis in

original).

Such statements can, “subject to the constraints of the Confronta-

tion Clause,” be fairly included in the penal interest rule. See

Williamson, supra, 5\2 U.S., at 600. Even if this Court does not

construe the Federal Rules of Evidence to admit such contextual -

9. Motive also distinguishes this case from Williamson, supra. The declarant in

that case was caught with a large quantity of cocaine with no apparent defense

other than implicating a “bigger fish.” See Williamson, supra, 512 U. S., at 604

(O’Connor, J.). His exoneration for the murder by his partners relieved Mark

Lilly of the need to implicate others found in Williamson

28

S. Ct.hearsay as a matter of evidentiary law, this practice is not so

unreasonable as to violate the Confrontation Clause.

Petitioner’s attempt to bolster his case by attacking custodial!

confessions, see Brief for Petitioner 44-45, and n. 25, should not

lead this Court to categorically exile these statements from the

penal interest exception. Custodial confessions that survive the

rigorous scrutiny of Miranda and the due process voluntariness

requirement, see, e.g., Colorado v. Connelly, 479 U.S. 157, 163

(1986), are vital to our criminal justice system.

“Admissions of guilt resulting from Miranda waivers ‘are

more than merely “desirable” they are essential to society’s

compelling interest in finding, convicting, and punishing those

whe violate the law.’ ” McNeil v. Wisconsin, 501 U.S. 171,

181 (1991) (citation omitted) (quoting Moran v. Burbine, 475

U. S. 412, 426 (1986)); see also People v. Garner, 57 Cal. 2d

135, 164, 367 P. 2d 680, 697 (1961) (Traynor, J., concurring)

(“So long as the methods used comply with due process

standards, it is in the public interest for the police to encour-

age confessions and admissions during interrogation”).

Although the constitutionality of the declarant’s interrogation is

not dispositive of the Confrontation Clause issue, see Lee, supra,

476 U. S., at 544, it does place the custodial statement in a better

light than it would have without the benefit of these protections,

a fact that deserves consideration in favor of admitting custodial

confessions under the penal interest exception.’ Indeed, the

police interrogator in the present case provided a key element in

support of the reliability of Mark Lilly’s statement—the knowl-

edge that he had not been blamed by either of his companions.

10. Lee’s broad disavowal of any relationship between voluntariness and reliability

must be read in light of the extremely strong motives for blame spreading found

in that case. See supra, at 11. While it is true that the voluntariness

requirement serves more purposes than ensuring the reliability of verdicts, see

Connelly, supra, 479 U. S., at 168, it is no less true that “an involuntary

confession is inadmissible in part because such a confession is likely to be

unreliable... .” Watkins v. Sowders, 449 U.S. 341, 347 (1981). While not

dispositive, voluntariness will have at least some positive bearing on the

statement's reliability.

29

The Confrontation Clause is interpreted to insure that the

government's case against the defendant is based upon the truth.

Admitting declarations against penal interest against defendants

is consistent with this goal. The risk of any confession is suffi-

ciently strong to make any suspect think twice before confessing,

even if the confession also implicates another. The decision of the

Virginia Supreme Court to uphold the admission of Mark Lilly’s

statement under this firmly rooted exception was a reasonable one.

CONCLUSION

The decision of the Virginia Supreme Court should be

affirmed.

February, 1999

Respectfully submitted,

KENT S. SCHEIDEGGER

CHARLES L. HOBSON*

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

*Attorney of Record