Sunday, July 20, 2008
Illinois...Oh, Illinois: Murder Case Reveals Confusing Status Of Statement Against Interest Exception In Illinois
The upcoming trial of Kenneth E. Smith reveals that Illinois courts apply a confusing version of the statement against interest exception to the rule against hearsay that is a hodgepodge of Supreme Court precedent and the Federal Rules of Evidence. Smith has been charged with the 2002 murder of Lakemoor businessman Raul Briseno. Allegedly, however, a McHenry woman told the police and others that she and two others were responsible for the murder, but police ultimately rejected her story as incredible. Smith, however, wants jurors to hear her statements in his forthcoming trial, and McHenry County Judge Sharon Prather seemed receptive to such testimony although she noted that she would not be able to decide which of the woman's many statements to police, friends, and relatives would be permitted until she learns what exactly she said and the circumstances under which she said it. And such a final determination likely will not come until the midst of Smith's trial.
Looking at Illinois precedent, I can't see the reason for the delay. Pursuant to Federal Rule of Evidence 804(b)(3) and most counterparts, "[a] statement 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" is admissible as an exception to the rule against hearsay if it was made by an "unavailable" declarant. However, "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."
So, if we take a case where a defendant is on trial for murder and someone else confessed to the murder, the confession would tend to subject the declarant to criminal liability for the murder and would thus be admissible under Rule 804(b)(3) if (1) the declarant were "unavailable" to testify at trial (likely based upon claiming her Fifth Amendment right against self-incrimination); and (2) there were sufficient corroborating circumstances. And while the second part of this analysis is less clear than the first, courts have laid out relatively clear tests for making the determination, with my favorite being the five part test laid out by the Fourth Circuit in United States v. Lowe, 65 F.3d 1137, 1146 (4th Cir. 1995), which considers:
-(1) whether the declarant had at the time of making the statement pled guilty or was still exposed to prosecution for making the statement;
-(2) the declarant's motive in making the statement and whether there was a reason for the declarant to lie;
-(3) whether the declarant repeated the statement and did so consistently;
-(4) the party or parties to whom the statement was made;
-(5) the relationship of the declarant with the accused; and
-(6) the nature and strength of independent evidence relevant to the conduct in question
In Illinois, however, which does not have a evidentiary code, the analysis is much more complicated. Basically, it starts with the United States Court's opinion in Chambers v. Mississippi, 410 U.S. 284 (1973). In Chambers, the Supreme Court held, inter alia, that a Mississippi court erred by precluding the defendant from introducing a statement indicating that the declarant and not the defendant was guilty of the subject murder because there were four factor supporting its admissibility:
(1) the statement was made spontaneously to a close acquaintance shortly after the crime occurred;
(2) the statement was corroborated by other evidence;
(3) the statement was self-incriminating and against the declarant's interest; and
(4) there was adequate opportunity for cross-examination of the declarant.
So, in the years following Chambers, "Illinois courts used a mechanistic approach, holding that all four factors, as listed in Chambers, had to exist before" a statement against interest could be admitted. People v. Rutherford, 653 N.E.2d 794, 799 (Ill. App. 1 Dist. 1995). This view persisted until the opinion of the Supreme Court of Illinois in People v. Bowel, 488 N.E.2d 995, 999 (Ill. 1986), in which it found that:
"The four factors which the court enumerated in Chambers v. Mississippi are to be regarded simply as indicia of trustworthiness and not as requirements of admissibility. The question to be considered in judging the admissibility of a declaration of this character is whether the declaration was made under circumstances that provide 'considerable assurance' of its reliability by objective indicia of trustworthiness."
Instead, it found that Federal Rule of Evidence 804(b)(3) "codified the admissibility of a statement made against penal interest." Rutherford, 653 N.E.2d at 800. So, did that mean that Federal Rule of Evidence 804(b)(3) was the law of the land in Illinois? Some courts thought so. See, e.g., People v. Rice, 617 N.E.2d 360 (Ill. App. 1 Dist. 1993). However, they were soon rebuffed by the Supreme Court of Illinois, which in People v. Rice, 651 N.E.2d 1085 (Ill. 1995), which "collapsed Chambers and Rule 804(b)(3), selecting parts of each to reach its decision." Rutherford, 653 N.E.2d at 800.
In other words, the state of the law is so unsettled that litigants can't really know what to expect in cases where they seek to admit or exclude statements against interest. All of which makes incoming Illinois Supreme Court Chief Justice Thomas R. Fitzgerald's claim that he is going to "try to do something with possibly codifying the law of evidence in Illinois" of supreme importance. As the above indicates, the state of evidence law in Illinois is currently unacceptable.