Monday, April 28, 2008
Person Of Interest?: Eleventh Circuit Incorrectly Applies Statement Against Interest Hearsay Exception
The Eleventh Circuit's recent opinion in United States v. Westry, 2008 WL 1735384 (11th Cir. 2008), seems to me to apply the statement against interest exception correctly in one regard but incorrectly in another. In Westry, several defendants, including Willie Earl Crater Jr., were convicted of conspiracy to distribute controlled substances (and various substantive offenses), and had their sentences enhanced, inter alia, based upon the death of Jasen Johns while using drugs allegedly supplied by members of the conspiracy. The prosecution proved that Johns died while using drugs allegedly supplied by members of the conspiracy in part through hearsay statements made by Johns. Specifically, after establishing that Carter's nickname was "Bip," the prosecutor asked Johns' cousin, Michael Carpenter, about the events surrounding Johns' death, and the following exchange took place:
-Q. And when you left, what was going on there at the house?
-Q. And do you know who? * * *
-Q. Do you know who he was waiting on?
-Q. And when you left, had Bip arrived?
-A. Yeah. He was just coming in, and they went to the back.
At trial, Carpenter's attorney objected that Johns' statements were inadmissible hearsay, but the trial judge overruled his objection. On appeal, the Eleventh Circuit found that Johns' statements were admissible under Federal Rule of Evidence 804(b)(3), which allows for the admission of a statement by an unavailable declarant, "which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."
The Eleventh Circuit got one part of the analysis correct. It noted that Carpenter was claiming on appeal that Johns' statements (about drug purchasing/use) were not against his interest and did not expose him to criminal liability because they were made to his cousin, whom Johns had no reason to believe would implicate him. The Eleventh Circuit rejected this argument, claiming that it is unnecessary that the declarant know he was speaking to a person who could cause his prosecution. I agree with this analysis. The point of the statement against interest exception is not that the speaker believes his statement will actually expose him to criminal liability. The point is that there's good reason to believe a person when he makes statements admitting to blameworthy conduct.
On the other hand, the Eleventh Circuit got another part of the analysis very wrong. In Williamson v. United States, 512 U.S. 594 (1994), the Supreme Court made very clear that in applying the statement against interest exception, courts need to be very careful in parsing the declarant's statements and only admitting those statements that implicate the declarant while excluding those statements which implicate others. Looking back at Johns' statements, we see that his first statement is self-inculpatory because he admits that he's waiting to get drugs. His second statement, however, merely indicates that he was waiting for "Bip"/Carpenter. This statement in no way implicates Johns, but it does implicate Carpenter. Thus, the statement should have been deemed inadmissible.