# Amicus Curiae Brief — Lilly v. Virginia

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0291%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 116

## Text

| 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?

eee ee Le nee eeebecese
i an rid hd's be bkbceoeas ¢ dtwaveens
I PIED coc ccceccocesseesececoccscece
nn cdc tovtdesddvesbevesevetoc
ET S54 dpuebesCedtyeactocsscoeccces
DE acu sUeeGaWednredeseresesctcedeesecccceves
I
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
ECU aWe i de wdddddcbececoctccess
CE CUM cdedecicecaccccceccaces
B. The firmly rooted exception ..................
Il
The Virginia Supreme Court’s decision that Mark Lilly’s
statements qualify under the penal interest exception
i Clee ih aCeks eek ed eebedeacseccccesce
eS aes 256s a dee Stele abir's 00 000 66:

(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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0291%3A13. Public record. Not legal advice.