Amicus Curiae Brief — Lilly v. Virginia

No. 98-5881

— em ——— - = | ——— — ST

In The

Supreme Court of the United States

October Term, 1998

o-—

BENJAMIN LEE LILLY,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

. oe ——

On Writ Of Certiorari To The

Supreme Court Of Virginia

>

BRIEF OF THE STATES OF NEBRASKA, ARIZONA,

KANSAS, LOUISIANA, MARYLAND, MISSISSIPPI,

MONTANA, NEVADA, NORTH CAROLINA,

NORTH DAKOTA, OHIO, OREGON, PENNSYLVANIA,

SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE

AND TERRITORY OF GUAM AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

.

Submitted by:

DON STENBERG

Attorney General

]. Kirk Brown

Counsel of Record

Assistant Attorney General

P.O. Box 98920

Lincoln, Nebraska 68509-8920

Tel: (402) 471-2682

Attorneys for Amici

{Additional Counsel On Inside Cover]

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

JANET NAPOLITANO

Attorney General

State of Arizona

Micnuaet C. STERN

Acting Attorney General

Territory of Guam

Caria J. STOVALL

Attorney General

State of Kansas

RicHArRD P. [evous

Attorney General

State of Louisiana

J. JosepH CURRAN, Jr.

Attorney General

State ot Maryland

Micuaet C. Moore

Attorney General

State of Mississippi

JosepH P. Mazurexk

Attorney General

State of Montana

FRANKIE SuE Det Papa

Attorney General

State of Nevada

MicuHaew. F. EAstry

Attorney General

State of North Carolina

Heipr HerrkAmp

Attorney General

State of North Dakota

—_——_ ee

Betry D. MONTGOMERY

Attorney General

State of Ohio

Harpy Myers

Attorney General

State of Oregon

D. MicHaet FIisHer

Attorney General

Commonwealth of

Pennsylvania

CHARLES M. ConDon

Attorney General

State of South Carolina

Mark BARNETT

Attorney General

State of South Dakota

Pau. G. SUMMERS

Attorney General and

Reporter

State of Tennessee

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BBEST AVAILABLE COPY|_

TABLE OF CONTENTS

Page

TABLE OF CONTENTS.. i

TABLE OF AUTHORITIES........ NE Ee ii

INTEREST OF AMICI CURIAE . l

SUMMARY OF ARGUMENT..... I

ARGUMENT ......... He caek thes. 2

ES 2

I. THE RELATIONSHIP BETWEEN THE CON.

II.

ill.

FRONTATION CLAUSE AND EXCEPTIONS TO

THE RULE AGAINST HEARSAY.

THE ADMISSION AGAINST INTERES1

EXCEPTION IS A FIRMLY ROOTED EXCEP-

EE STE TE nn

A. An exception “firmly rooted” in a historical

landscape......

B. A question of state law ...............

A BROAD EXCLUSION OF CUSTODIAL

STATEMENTS AGAINST INTEREST IS NEI-

THER LOGICAL NOR NECESSARY TO

ACHIEVE THE ENDS ULTIMATELY DESIRED

BY BOTH THE CONFRONTATION CLAUSE

AND OUR RULES OF EVIDENCE: THE

Settee cadddcciewe cs... Masthvenecee

A. At worst, a rebuttable presumption.

B. The scope of corroboration .............

EELS AE eT

NS

™N

1]

13

13

14

16

TABLE OF AUTHORITIES

Page

Cases

Berrisford v. Wood, 826 F.2d 747 (8th Cir. 1987), cert.

denied, 484 U.S. 1016 (1988).......-- 6. - cece eee e nee 4

Bourjaily v. United States, 483 U.S. 171 (1987)...... 6, 13

California v. Green, 399 U.S. 149 (1970) .......----555- 7

Commonwealth v. Carr, 373 Mass. 617, 369 N.E.2d

GD Be occ coscoccdcccecescduseuseueutanyeenseaeent 6

Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344

+. Fee »000c0ensscbe es Obeceekenmasetennaes 6

Commonwealth v. Young, 1999 WL 24540 (Pa. 1999)..... 8

Donnelly v. United States, 228 U.S. 243 (1913)......... 8

Dutton v. Evans, 400 U.S. 74 (1970)............---005- 7

Idaho v. Wright, 497 U.S. 805 (1990) ............. passim

Jennings v. Maynard, 946 F.2d 1502 (10th Cir. 1991)..... y

Laumer v. United States, 409 A.2d 190 (D.C. 1979)..... 6

Lee v. Illinois, 476 U.S. 530 (1986) ............4... 10, 13

Lilly v. Commonwealth, 255 Va. 558, 499 S.E.2d 522

IGOR . <ccckdwnadntlednushecdasddedatie 1G ee

Ohio v. Roberts, 448 U.S. 56 (1980)...... ......44--- 6, 7

People v. Brown, 26 N.Y.2d 88, 308 N.Y.S. 825, 257

PER DE BG CHIR c vccvcchgectbeckeoveeetnceesvecuee 6

Riddle v. State, 314 S.C. 1, 443 S.E.2d 557 (1994)......8

Simmons v. State, 333 Md. 547, 636 A.2d 463 (1994) ..... 8

State v. Doctor, 306 S.C. 527, 413 S.E.2d 36 (1992) ..... 8

State v. Gilliam, 635 N.E.2d 1242 (Ohio 1994)......... 4

~—

TABLE OF AUTHORITIES — Continued

Page

State v. Hallum, 585 N.W.2d 249 (lowa 1998)....... 8, 15

State v. Matuskey, 343 Md. 467, 682 A.2d 694 (1996) ..... 8

State v. Torres, 1998 WL 896350 (N.M. 1998)........ 9

Linited States v. Barone, 114 F.3d 1284 (lst Cir.

1997), cert. denied, __ US. __, 118 S. Ct. 614,

eee es ee PT hoc ob o daca ebdebeeuseenaes )

United States v. Katsougrakis, 715 F.2d 769 (2nd Cir.

ad Lo duiee De seus Ves bdkalcots Geue eee teds ote de Me

United States v. Taggart, 944 F.2d 837 (11th Cir

POSES 6c6cs ceradde.cheds cncacdaknd cis cdaadé ivoures 9

Linited States v. York, 933 F.2d 1343 (7th Cir. 1991)..... y

White v. Illinois, 502 U.S. 346 (1992)............ 6, 7, 11

STATUTES AND RULES

Federal Rules of Evidence, Rules 803 and 804........ 3, 9

Military Rules of Evidence, Rule 804(b)(3), 45 Fed.

Mente, CE hs eG esos sbi coe dvccteeveces cuctvccose 5

Alaska Rules of Evidence, Rule 804(b)(3)............. 5

Arkansas Rules of Evidence, Rule 804(b)(3) .......... 5

California Evidence Code § 1230................644.. 5

Colorado Rules of Evidence 804(b)(3) ................ 5

Delaware Uniform Rules of Evidence, Rule

SED 6d wchtien dhs eeesenbedstnsadbadebandad odnta 5

Hawaii Rules of Evidence, Rule 804(b)(3) ............ 5

Idaho Rules of Evidence, Rule 804(b)(3).............. 5

iv

TABLE OF AUTHORITIES —- Continued

Page

Indiana Rules of Evidence, Rule 804(b)(3)............ 5

lowa Rules of Evidence, Rule 804(b)(3)............... 5

Kansas Statutes Annotated § 60-460(j)................ 5

Kentucky Rules of Evidence, Rule 804(b)(3) .......... 5

Louisiana Code of Evidence Art. 804(B)(3) ........... 5

Maryland Rules of Procedure, Evidence, Rule

POE: 6 Sc ccctcbaddeeceudéeceenenseishensabeiinn 5

Michigan Rules of Evidence, Rule 804(b)(3) .......... 5

Minnesota Rules of Evidence, Rule 804(b)(3) ......... 5

Mississippi Rules of Evidence, Rule 804(b)(3)......... 5

Montana Rules of Evidence, Rule 804(b)(3)........... 5

Nebraska Rules of Evidence § 27-804(2)(c)............ 5

New Hampshire Rules of Evidence, Rule 804(b)(3) ..... 5

New Mexico Rules of Evidence, Rule 804(b)(3)....... 5

North Carolina Rules of Evidence, Rule 804(b)(3) ..... 5

Ohio Rules of Evidence, Rule 804(b)(3)............... 5

Oklahoma Evidence Code § 2804(B)(3) ............... 5

Oregon Rules of Evidence, Rule § 40.465(3)(c)........ 5

Pennsylvania Rules of Evidence, Rule 804(b)(3)....... 6

Puerte Rico Rules of Evidence 64(B)(3)............... 5

Rhode Island Rules of Evidence, Rule 804(b)(3) ...... 5

South Dakota Codified Laws § 19.16-32.............. 5

Tennessee Rules of Evidence, Rule 804(b)(3).......... 5

ee oe

— ee

—S

v

TABLE OF AUTHORITIES - Continued

Page

Texas Rules of Criminal Evidence, Rule 803(24) ...... 5

Utah Rules of Evidence, Rule 804(b)(3)............... 5

Virgin Islands Code Ann. tit. 5 § 932(10)............. 5

Washington Rules of Evidence, Rule 804(b)(3)........ 5

West Virginia Rules of Evidence, Rule 804(b)(3) ...... 5

Wisconsin Stat. Ann. § 908.045(4) .................4.. 5

Wyoming Rules of Evidence, Rule 804(b)(3).......... 5

OrHerR AUTHORITIES

Wigmore on Evidence, § 1455, p. 349 ..........6000005- 8

Wigmore on Evidence, § 1476, p. 350 ............00005. 8

Wigmore on Evidence, § 1477, p. 358-360 .............. 9

INTEREST OF AMICI CURIAE

The amici states are charged with the responsibility

of protecting the citizens of their respective states by the

capture, conviction and removal of criminals from the

general civilian population. Crucial to that process is the

gathering and the admission at trial of relevant evidence

of a criminal defendant's guilt of the crime charged.

The amici states come before this court in the belief

that individuals unavailable to testify in a criminal trial,

nonetheless may well have been possessed of critical,

accurate and relevant information which they had previ-

ously communicated. In that belief, the amici states have

in place state-created rules of evidence which permit the

admission into evidence of statements against a declar-

ant’s penal interest against third parties. It is the desire of

these states to preserve that state-created option as a part

of their state law.

SUMMARY OF ARGUMENT

The fundamental concern of the Confrontation

Clause is the search for truth. In that search we are to

employ only legally appropriate evidence. The laws of

the amici states allow the admission of statements made

against penal interest into evidence against third parties.

Idaho v. Wright instructs that when such evidence is

allowable under state evidertiary standards, the concerns

of the Confrontation Clause are satisfied by one of two

tests: (1) That the hearsay exception in question is “firmly

rooted” in the law, or (2) that the government has met its

burden to demonstrate that the offered statement has

particularized guarantees of trustworthiness.

The hearsay exception at issue here was “firmly

rooted” in the law of England at the time the Confronta-

tion Clause was created, and is presently “firmly rooted”

in the laws of our state and federal courts. In the case

here at issue, the Virginia Supreme Court has specifically

held that the exception in question is “firmly rooted” in

the law of that state.

Beyond that, if particularized guarantees of trust-

worthiness need be established by the states to satisfy the

concerns of the Confrontation Clause, then the state’s

ability to do so should not be further limited but, instead,

expanded to allow the introduction of any relevant evi-

dence which demonstrates the reliability and accuracy of

the statement being offered. Only by that process may the

search for truth truly be advanced.

S

ARGUMENT

Introduction

A.

Trials should be first and foremost a mechanism for

discerning the truth. We do not dispute the historically

held belief that confrontation of witnesses is a device

sometimes helpful in ferreting out the truth. However, it

is not the only truth-seeking device available in American

trials.

The rules of evidence employed in the trial of English

and America cases for centuries have recognized that not

all probative evidence need come from the mouth of a

witness physically present at trial. Like most other rules

of law, there exist rational and time-tested exceptions to

the general rule against hearsay testimony. E.g., Federal

Rules of Evidence, Rules 803 and 804. These exceptions are

based upon some hard and pragmatic realities. One of

which is that it is difficult, if not impossible, to cross

examine the dead (or witnesses otherwise equally

“unavailable”). Yet that does not mean that the dead,

while living, were not in possession of credible evidence

relevant to finding the truth of the matter being tried.

The law of this nation and the laws of the states

recognize that under certain well defined circumstances,

the statements of an unavailable witness may be properly

placed before a fact finder without offending the Con-

frontation Clause of our federal constitution. The oppor-

tunity to offer such evidence should not be foreclosed. To

do so will not further the search for truth, but thwart it.

In cases such as this, such a rule will unnecessarily

benefit the lawless and represent an unnecessary detri-

ment of the public safety.!

1 Currently the State of Nebraska has pending before the

Nebraska Supreme Court a capital case involving a random and

racially motivated homicide in which a young black woman was

abducted, physically and sexually assaulted and then murdered

solely because of her race. State v. Sheets, #S-97-1069. In that

case, the admissibility of a co-actor’s self-incriminating

statement may well prove dispositive of the State of Nebraska’s

ability to convict for that offense. The Nebraska Supreme Court

thus awaits the decision in this case.

The limitless spectrum of human behavior, motiva-

tion and truthfulness makes irrational the assertion that

all custodial statements against interest that also incrimi-

nate others are uniformly unreliable. That conclusion is

no more worthy of belief than the conclusion all such

statements are uniformly credible.

If our criminal justice experience teaches nothing

else, it teaches that universal judgments as to the motiva-

tions, behavior and truthfulness of human beings are

extremely problematic. However, in some situations the

corporate experience of society, over time, reaches the

conclusion that certain statements are credible enough to

appropriately be placed before a fact finder, even if the

declarant is unavailable. Thus, the specific exceptions to

the rule against hearsay. In situations not covered by such

historical insight, the reliability and the accuracy of a

statement should be evaluated in the context of (1) the

unique situation of the declarant, (2) the unique environ-

ment in which that statement was made, and (3) what

independent corroboration of the accuracy of the state-

ment can be offered.

Each of these elements is intensely factual in nature.

The determination of whether sufficient indicia of

reliability surround any particular unavailable witness’

out of court statement so as to allow its admission into

evidence is unavoidably a fact specific question which

must be resolved on a case-by-case basis. The question

does not lend itse.f to, nor does the Confrontation Clause

demand, a blanket prohibition of such statements.

THE RELATIONSHIP BETWEEN THE CONFRONTA-

TION CLAUSE AND EXCEPTIONS TO THE RULE

AGAINST HEARSAY

The law of Virginia recognizes an exception to the

rule against hearsay for statements made against the

interest of the declarant. Lilly v. Commonwealth, 255 Va.

558, 499 S.E.2d 522, 533 (1998). The amici states and

numerous other jurisdictions employ a similar exception.*

2 Alaska Rules of Evidence, Rule 804(b)(3); Arkansas Rules

of Evidence 804(b)(3); California Evidence Code § 1230;

Colorado Rules of Evidence 804(b)(3); Delaware Uniform Rules

of Evidence, Rule 804(b)(3); Hawaii Rules of Evidence, Rule

804(b)(3); Idaho Rules of Evidence, Rule 804(b)(3); Indiana

Rules of Evidence, Rule 804(b)(3); lowa Rules of Evidence, Rule

804(b)(3); Kansas Statutes Annotated § 60-460(j); Kentucky

Rules of Evidence, Rule 804(b)(3); Louisiana Code of Evidence

Art. 804(B)(3); Maryland Rules of Procedure, Evidence, Rule

5-804(b)(3); Michigan Rules of Evidence, Rule 804(b)(3);

Minnesota Rules of Evidence, Rule 804(b)(3); Mississippi Rules

of Evidence, Rule 804(b)(3); Montana Rules of Evidence, Rule

804(b)(3); Nebraska Rules of Evidence § 27-804(2)(c); New

Hampshire Rules of Evidence, Rule 804(b)(3); New Mexico

Rules of Evidence, Rule 804(b)(3); North Carolina Rules of

Evidence, Rule 804(b)(3); Ohio Rules of Evidence, Rule

804(b)(3); Oklahoma Evidence Code § 2804(B)(3); Oregon Rules

of Evidence, Rule § 40.465(3)(c); Puerto Rico Rules of Evidence

64(B)(3); Rhode Island Rules of Evidence, Rule 804(b)(3); South

Dakota Codified Laws § 19.16-32; Tennessee Rules of Evidence,

Rule 804(b)(3); Texas Rules of Criminal Evidence, Rule 803(24);

Utah Rules of Evidence, Rule 804(b)(3); Virgin Islands Code

Ann. tit. 5 § 932(10); Washington Rules of Evidence, Rule

804(b)(3); West Virginia Rules of Evidence, Rule 804(b)(3);

Wisconsin Stat. Ann. § 908.045(4); Wyoming Rules of Evidence,

Rule 804(b)(3); Military Rules of Evidence, Rule 804(b)(3), 45

Fed. Reg. 16,932. See, Evidence in America, The Federal Rules in

The relationship between the Confrontation Clause

and state and federal evidentiary rules recognizing

exceptions to the rule against hearsay have been a recur-

ring issue before this Court. See cases collected in White v.

Illinois, 502 U.S. 346, 352-53 (1992).

In White this Court reiterated this Court's refusal to

“equate the Confrontation Clause’s prohibitions with the

general rule prohibiting the admission of hearsay state-

ments.” White, at 352, quoting Idaho v. Wright, 497 U.S.

805, 814 (1990). Such a blanket exclusion of otherwise

admissible evidence in the name of the Confrontation

Clause would be a result “unintended and too extreme.”

Wright, 497 U.S. at 814, quoting Bourjaily v. United States,

483 U.S. 171, 182 (1987), quoting Ohio v. Roberts, 448 U.S.

56, 63 (1980).

Reliability® is the question and two tests have

emerged. “Reliability can be inferred without more in a

case where the evidence falls within a firmly rooted hearsay

exception. In other cases, the evidence must be excluded,

the States; and Massachusetts, Commonwealth v. Carr, 373 Mass.

617, 369 N.E.2d 970, 974 (1977); New York, People v. Brown, 26

N.Y.2d 88, 91, 308 N.Y.S. 825, 826-27, 257 N.E.2d 16, 17-19 (1970);

Pennsylvania, Pennsylvania Rules of Evidence, Rule 804(b)(3);

Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344, 346 (1974); and

the District of Columbia, Laumer v. United States, 409 A.2d 190,

199 (D.C. 1979).

3 In this context, we suggest that the meaning attached to

the term “reliability” and the concept of factual accuracy should

be indistinguishable. In daily life, rational individuals routinely

judge the “reliability” of another person’s statement by virtue of

the listener’s ability to independently verify the factual

“accuracy” of that statement. The law should be no less rational

in its approach to this legitimate concern.

at least absent a showing of particularized guarantees of

trustworthiness.” Wright, 497 U.S. at 815 (emphasis

added). The two tests are not inter-dependent. Meeting

either of the two tests suffices to allow the introduction of

the offered evidence.

THE ADMISSION AGAINST INTEREST EXCEPTION

IS A FIRMLY ROOTED EXCEPTION.

This Court has held that the concerns of the Confron-

tation Clause and the concerns of the historically devel-

oped and pragmatic rules regarding the admissibility of

hearsay testimony are related and therefore no indepen-

dent inquiry into the reliability of an offered out-of-court

statement is required under the Confrontation Clause

when its admission into evidence satisfies the require-

ments of a “firmly rooted” exception to the rule against

hearsay testimony. Idaho v. Wright, 497 U.S. 805 (1990);

Ohio v. Roberts, 448 U.S. 56, 66 (1980), citing California v.

Green, 399 U.S. 149, 155 (1970) and Dutton v. Evans, 400

U.S. 74, 86 (1970).

A.

An exception “firmly rooted” in a historical landscape

This Court has stated that the inquiry into whether a

particular exception to the rule against hearsay is “firmly

rooted” has “included historical examination of the ori-

gins of the Confrontation Clause and of the state of the

law of evidence existing at the time the Sixth Amendment

was adopted and later.” White, 502 U.S. at 352.

The admissibility of admissions against the interests

of a declarant as an exception to the rule against hearsay

has a long history in the evidentiary law of England and

this country. “[T]he exception to the hearsay rule in the

case of declarations against interest is well known”; Don-

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

Holmes, dissenting).

With particular reference to statements against penal

interest, it has been noted that such a rule of evidence

was recognized by the English courts back perhaps as far

as the early 1700’s.4 This rule prevailed until the

mid-1800’s when “in a case in the House of Lords, not

strongly argued and not considered by the judges in the

light of precedents, a backward step was taken and an

arbitrary limit put upon the rule.”° It was this question-

able ruling which removed from English law the hearsay

exception for statements against penal interest. Thus it

would appear that at the time the Confrontation Clause

was placed within our federal constitution, a hearsay

exception covering statements against penal interest had

long been recognized by the common law of England.

That same exception has now firmly re-entrenched

itself in the state and federal laws of this nation.® The

4 Wigmore on Evidence, § 1455, p. 349.

5 Wigmore, § 1476, p. 350.

6 See footnote 2. See also, State v. Matuskey, 343 Md. 467, 682

A.2d 694 (1996); Simmons v. State, 333 Md. 547, 636 A.2d 463

(1994); Riddle v. State, 314 S.C. 1, 443 S.E.2d 557 (1994); State v.

Doctor, 306 S.C. 527, 413 S.E.2d 36 (1992); State v. Hallum, 585

N.W.2d 249 (lowa 1998); Commonwealth v. Young, 1999 WL 24540

(Pa. 1999).

drafters of the Federal Rules of Evidence, guided by hun-

dreds of years experience, opted to re-expand the excep-

tion “to the full logical limit.” Federal Rules of Evidence,

Rule 804(b)(3), Advisory Committee Notes, 1972 Pro-

posed Rules; see also Wigmore, § 1477, p. 358-360.”

For over 20 years the federal rules, and the many

states which have followed that model, have recognized

the compelling logic of the exception here in question. A

legal concept which dates to the 1700's, was arbitrarily

removed from English law, and yet over time has re-

established itself in the laws of a clear majority of the

jurisdictions in this country as a compellingly rational

pronouncement, surely was and is “firmly rooted” for

purposes of the Confrontation Clause analysis described

in Wright.®

? The English rule eliminating statements against penal

interest as an exception to the rule against hearsay “is

inconsistent with the broad language originally employed in

stating the reason and principle of the present exception as well

as with the settled principle upon which confessions are

received. .. . [F]urthermore, it cannot be justified on grounds of

policy.”

§ The following jurisdictions have found statements against

penal interest to be “firmly rooted”: United States v. Barone, 114

F.3d 1284, 1302 (1st Cir. 1997), cert. denied, US... 1185.Ct.

614, 139 L.Ed.2d 500 (1997); United States v. Katsougrakis, 715

F.2d 769, 775 (2nd Cir. 1983); United States v. York, 933 F.2d 1343,

1363 (7th Cir. 1991); Berrisford v. Wood, 826 F.2d 747, 751 (8th Cir.

1987), cert. denied, 484 U.S. 1016 (1988); Jennings v. Maynard, 946

F.2d 1502, 1505 (10th Cir. 1991); United States v. Taggart, 944 F.2d

837, 840 (11th Cir. 1991); State v. Torres, 1998 WL 896350 (N.M.

1998); State v. Gilliam, 635 N.E.2d 1242 (Ohio 1994); Lilly v.

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

19

The logic of this Court's cases is that there do exist

certain types of statements which, based upon the corpo-

rate experience of human beings, are simply so unlikely

to be fabricated that they need not be subjected to the

theater of cross examination to be deemed at least worthy

of consideration by a fact finder. That is the primary func-

tion served by the historical development of exceptions to

the rule against hearsay.

[S]tatements squarely within established hear-

say exceptions possess ‘the imprimatur of judi-

cial and legislative experience’ . . . and that fact

must weigh heavily in our assessment of their

reliability for constitutional purposes.

Lee v. Illinois, 476 U.S. 530, 552 (1986) (Blackmun, J.,

dissenting) cited with approval in Wright, 497 U.S. at 817.

To say that the hearsay exception covering state-

ments against penal interest is not “firmly rooted” or

“squarely established” within the law of this country

denies the historical and evolutionary processes by which

our state and federal rules of evidence are developed.’

* We note that the statement here in question was not

offered under a “residual” hearsay exception, which some states

have crafted, and which this court addressed in Wright. Instead,

this statement was offered under a hearsay exception

specifically and routinely recognized under state and federal

law.

11

B.

A question of state law

Placing aside for the moment the historical compo-

nent of the “firmly rooted” analysis, which looks to the

state of the law at the time th Confrontation Clause

became a part of our federal constitution, the “evolution-

ary component” of the analysis,’° in state cases, neces-

sarily presents a question of state law. In the vast

majority of criminal prosecutions nationally, these rules

evolve in our state courts and state legislatures. Thus the

process of developing evidentiary rules for the state

courts is exclusively a matter of state law.

Therefore, an important question inherent in the con-

cept of a “firmly rooted” exception must be: Where must

this exception be firmly rooted? Prior cases have not

answered that question.

If the Confrontation Clause does not dictate rules of

evidence for the states, then we suggest that the question

of whether a state rule of evidence is “firmly rooted”

becomes, for the second component of the analysis, nec-

essarily a question of whether that exception is “firmly

© The inquiry into whether a particular exception to the

rule against hearsay is “firmly rooted” has “included historical

examination of the origins of the Confrontation Clause and of

the state of the law of evidence existing at the time the Sixth

Amendment was adopted and later.” White, 502 U.S. at 352

(emphasis added).

12

rooted” in state law. That is a question which a state’s

highest court is empowered to dispositively determine.

The Virginia Supreme Court specifically found, as a

matter of state law, that the hearsay exception under which

the statement in question was admitted was “firmly

rooted” in the evidentiary law of the State of Virginia.

Lilly v. Commonwealth, 255 Va. 558, 573, 499 S.E.2d 522, 533

(1998).

None of this Court’s cases addressing this question

indicate in what particular plot of soil the hearsay excep-

tion in question need be “firmly rooted”. For state courts,

the development of hearsay exceptions is necessarily a

function of state law. Therefore, we believe the finding by

the Virginia Supreme Court that the hearsay exception

here at issue is “firmly rooted” in Virginia law is

unavoidably relevant to the analysis described in Wright.

If the state evidentiary rule under which an out-of-

court statement is admitted is found to be “firmly rooted”

in the law of that state by that state’s highest court, we

suggest that finding should be dispositive of the evolu-

tionary component of the “firmly rooted” question

framed by this Court’s prior decisions on this subject.

The opinions of this Court have not instructed how

these two components of the “firmly rooted” question are

to be weighed. We suggest the state-law-based compo-

nent should be given considerable weight in this analysis.

13

A BROAD EXCLUSION OF CUSTODIAL STATE-

MENTS AGAINST INTEREST IS NEITHER LOGICAL

NOR NECESSARY TO ACHIEVE THE ENDS ULTI-

MATELY DESIRED BY BOTH THE CONFRONTATION

CLAUSE AND OUR RULES OF EVIDENCE: THE

TRUTH

A.

At worst, a rebuttable presumption

If we need reach the second of the two tests

described in Wright, the opportunity for the party offer-

ing the custodial statement against penal interest to

establish particularized guarantees of trustworthiness

should be preserved.

In that context, even Justice Brennan acknowledged

that whatever presumption may exist against the use of

such statements: “[T]he presumption may be rebut-

ted... ”. Lee v. Illinois, 476 U.S. 530 (1986). That statement

of the rule admits the very real possibility, if not the

likelihood, that circumstances making the introduction of

such evidence appropriate will be found to exist. See

Bourjaily v. United States, 483 U.S. 171, 179 (1987).

It is the opportunity to demonstrate that partic-

ularized guarantees of trustworthiness exist in a specific

case that the amici states urge this court to preserve.

Will all such statements offered by the government

be admitted into evidence? No. However, the range of

14

factual possibilities is immense.'' If the government

meets its burden of establishing particularized guaran-

tees of trustworthiness, the exclusion of such a statement

under a broad, generic prohibition would not further the

Confrontation Clause’s search for truth. Instead, it will

thwart it.

B.

The scope of corroboration

Finally, we ask this court to revisit its decision in

Wright to expand, to the extent that Wright may be read to

limit, the scope of corroboration allowed to demonstrate

the “particularized guarantees of trustworthiness” which

may be required by the Confrontation Clause.

Lilly argues that Wright limits the offer of evidence

on this question to those circumstances that surround the

making of the statement. That construction appears to be

driven, not by the independent concerns of the Confron-

tation Clause, but upon the distinct rationales historically

employed as a basis for creation of hearsay exceptions

themselves. Wright, 497 U.S. at 819. Ve suggest that to the

extent Wright can be read to impose corroboration limits

'! For example, the Nebraska Supreme Court now has

pending before it a case in which (1) the declarant’s

incriminating statement was not legally exculpatory, (2) the

statement was made after being afforded full benefit of counsel,

and (3) the statement provides numerous details accurately

describing the murder not known to the public. State v. Sheets,

#S-97-1069.

15

upon the state courts when resolving questions of admis-

sibility under state evidentiary rules, rather than instruct-

ing upon the separate requirements of the Confrontation

Clause, that is not an appropriate focus for this Court.

We believe the analysis requires two distinct steps.

First, does the offered statement meet the requirements of

state evidentiary rules? If not, the statement is inadmiss-

ible and the Confrontation Clause concern is never

reached. Only if the statement is admissible under state

evidentiary standards do the federal constitutional con-

cerns of the Confrontation Clause need to be addressed.!?

In that second step, if one is challenged to rebut a

presumption of unreliability with evidence demonstrat-

ing particularized guarantees of trustworthiness, it would

seem only logical and appropriate to allow the person

bearing that burden to offer any credible evidence that the

statement offered is, in fact, accurate and thus reliable.’

To meet that burden the state should be allowed to offer

physical and testimonial evidence which tends to increase

the likelihood that the declarant did, in fact, utter the

truth.

The thought that the Sixth Amendment's requirement

of cross examination was only contemplated in, and can

only arise in, the context of an “available” witness has

logical merit. The law permits numerous other forms of

non-testimonial evidence admission before a fact finder

without requiring the opportunity for cross examination.

2 A similar approach was employed in State v. Hallum, 585

N.W.2d 249, 256-259 (Iowa 1998).

13 See footnote 3.

16

For instance, one cannot cross examine an item of physi-

cal evidence, yet we allow it to be placed before the fact

finder subject, of course, to whatever attack the opponent

can muster through other witnesses and other evidence to

either corroborate or discredit its meaning.

If the concern of the Confrontation Clause is to fur-

ther the ascertainment of truth, rather than the re-writing

of state evidentiary law, then it would seem that the

scope of evidence appropriately corroborating an offered

statement against interest could and should be expanded

to include any reasonable indicia that the statement is accu-

rate. That is clearly the approach taken by the Virginia

Supreme Court in this instance, and one which seems

best suited to meeting the truth finding concerns of the

Confrontation Clause."

CONCLUSION

First, we believe the hearsay exception for statements

against penal interest is a “firmly rooted” exception as

required by Wright.

Second, should particularized guarantees of trust-

worthiness be deemed necessary to satisfy the Confronta-

tion Clause, we urge this Court to expand, rather than

4 “Thus, in determining the admissibility of a statement

against penal interest made by an unavailable declarant,

whether offered by the Commonwealth or the defendant, the

crucial issue to be resolved by the trial court is the reliability of the

statement in the context of the facts and circumstances under which it

was given.” Lilly, 499 S.E.2d at 534 (emphasis added).

17

further limit the opportunities for the states to meet that

burden.

For those reasons we urge that the judgment of the

Supreme Court of Virginia be affirmed.

Respectfully submitted,

Don STENBERG

Attorney General

J. Kirk Brown

Counsel of Record

Assistant Attorney General

P.O. Box 98920

Lincoln, Nebraska 68509-8920

Tel: (402) 471-2682

Attorneys for Amici