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Editor: Colin Miller
Univ. of South Carolina School of Law

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Saturday, July 26, 2008

Theatre Of The Absurd?: Prosecutors Will Seek To Admit Former Testimony In Retrial After Bizarre Re-Enactment Led To Reversal

The impending murder retrial of Kenneth E. Smith in Illinois has a strange past and what looks to be an interesting future.  Smith, Justin Houghtaling, and Jennifer McMullan were charged with the 2001 slaying of Lakemoor businessman Raul Briseno.  Houghtaling quickly cut a deal with county prosecutors in which he received the minimum 20-year sentence in exchange for his testimony against Smith and McMullan.  While Houghtaling kept his word and testified against McMullan, he clammed up when it came time to take the witness stand against Smith.  This resulted in a theatre of the absurd unprecedented (as far as I am aware) in American legal history:  prosecutors re-enacted Houghtaling's testimony from the McMullan trial, with an assistant McHenry County state's attorney playing the role of Houghtaling for Smith's jury.  The gambit worked, and Smith was convicted, but an appellate court reversed, apparently finding that while all the world's a stage, lawyers shouldn't be players.

This sets the stage for Smith's impending retrial, and it again appears that Houghtaling will refuse to testify despite the threat of a contempt finding hanging over his head.  In a motion scheduled to be heard later this month, the McHenry County state's attorney's office is asking for the judge's permission to question Houghtaling as a hostile witness if he refuses to answer questions.  If the motion is granted, prosecutors believe they can bring in Houghtaling's earlier testimony either through a hearsay exception or as a prior inconsistent statement.  It's likely that Smith's defense, which would rather not hear from Houghtaling at all, will ask the judge to deny the request.

This, of course, begs the question of whether the prosecution could indeed bring in Houghtaling's  testimony from the McMullan trial should he refuse to testify.  Let's look first at the former testimony exception to the hearsay rule.  Illinois recognizes an exception to the hearsay rule for former testimony, provided that the witness is unavailable and that "the matter in issue and the parties are essentially the same in both causes." Kendor v. Department of Correction, 467 N.E.2d 1107, 1110 (Ill.App. 1 Dist. 1984).  Should Houghtaling refuse to testify, he would meet the unavailability requirement.  People v. Ramey, 604 N.E.2d 275, 289 (Ill. 1992).  The problem, though, is that the parties are not "essentially the same" in both trials.  Smith was not a party to the McMullan trial, and thus, using the words of the federal former testimony exception, he neither had an opportunity nor a similar motive to develop  Houghtaling's testimony at that trial.

Let's look next at prior inconsistent statement, which courts deem admissible to contradict a witness' trial testimony.  Illinois courts have consistently held that when a witness refuses to testify, there is no present testimony, meaning that the witness cannot be impeached through a prior inconsistent statement. See People v. Redd, 553 N.E.2d 316 (Ill. 1990); 725 ILCS 5/115-10.1.

So, does that mean that the prosecution is out of luck?  That's the way it looks to me, unless the court finds that Houghtaling's prior testimony is admissible under 725 ILCS 5/115-10.2, Illinois' residual hearsay statute, but I don't have enough facts yet to be able to determine whether this rarely applicable statute would apply.

-CM

July 26, 2008 | Permalink | Comments (2) | TrackBack (0)

Friday, July 25, 2008

And No Religion Too, Take 2: North Carolina Court Finds Trial Court Didn't Err In Admitting Religious Evidence

I previously posted two entries (here and here) that were very critical of the admission of religious evidence in trials.  As I noted in the second of those posts, "any evidence concerning an individual's religious beliefs or lack thereof is highly prejudicial and should only be admissible if it has a direct bearing on a case."  Well, I think that I found such a case.

In State v. Rankin, 2008 WL 2726637 (N.C. App. 2008), John Fitzgerald Rankin appealed from his convictions for first degree murder and robbery with a dangerous weapon.  At trial, the prosecution had presented evidence establishing the following:

     Hawkins spent the weekend of August 13th, 2004 with his cousin, "Junior," and his son, Cedric Hawkins. On August 16th, Hawkins and Rankin told Junior that they were going to "make a lick," which Hawkins explained at trial meant commit a robbery. At 3:15 p.m. on that same day, Kevin Ritchie was found stabbed to death in his home, with approximately twenty to thirty firearms later determined to be missing from his home.  Ritchie and Rankin went to school together and had been in close communication prior to Ritchie's deathWithin a week of Ritchie's death, two of his rifles were pawned by Junior and his friend Timothy Allison, with a third rifle later found in the trunk of Allison's car. Upon questioning by the police, Junior alleged that he received the weapons from Rankin shortly after the Ritchie's death.

One argument that Rankin made on appeal was that the trial court erred by allowing the prosecution to present evidence identifying another witness and him as Muslim.  This evidence consisted of recordings of certain phone calls made by Rankin to Chantay Brown, a woman with whom he had been involved in the past.  While Brown's initial testimony provided Rankin with an alibi for the time of the murder, she later retracted that statement and testified that Rankin asked her via calls and letters to provide him with an alibi for the time of the crime.  Specifically, Brown testified that, per her religious beliefs, when Rankin asked her to provide an alibi for him, she felt obligated to do so, which is why she initially testified that he had been with her at the time of the murder.  More specifically, when the prosecutor asked Brown during voir dire whether her religious beliefs and the fact that Rankin was of the same faith affected the way she reacted to Rankin's request, she testified: "You're supposed to help them, assist them, if you can. You're supposed to help him. That's why I did agree to help him."

On appeal, Rankin claimed that the admission of this religious evidence "unfairly prejudiced the jury against him, as the jury could well have anti-Muslim beliefs, and that any probative value of the evidence was outweighed by its prejudicial effect.  As I did in my previous posts, I will start by noting that the evidence at issue was not excluded by North Carolina Rule of Evidence 610, which states that "[e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced; provided, however, such evidence may be admitted for the purpose of showing interest or bias."  This Rule did not make the evidence inadmissible because the prosecution was not using evidence of the shared faith of Brown and Rankin to argue that Muslims are liars and that their testimony thus can't be trusted. 

Instead, the prosecution used evidence of their shared faith to establish, essentially, bias:  that Rankin improperly used, and Brown was influenced by, their shared faith, leading to her initially providing him with a false alibi.  I think that the Advisory Committee's Note to Federal Rule of Evidence 610 puts it best when it says that "[w]hile the rule forecloses inquiry into the religious beliefs or opinions of a witness for the purpose of showing that his character for truthfulness is affected by their nature, an inquiry for the purpose of showing interest or bias because of them is not within the prohibition."

So, this explains why Rule 610 was not an issue, and I also think that it explains why the probative value of the religious evidence was not substantially outweighed by dangers such as the dangers of unfair prejudice under North Carolina Rule of Evidence 403.  This was a situation where religion had a direct bearing on the case.  It gave jurors a specific reason to discount Brown's initial alibi and a specific reason to discount Rankin's innocence.

(Here is the Volokh Conspiracy post on the case)

-CM

July 25, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 24, 2008

Til Disclosure Do Us Part: Michigan Case Reveals State's Toothless Forumlation Of The Confidential Marital Communications Privilege

The recent opinion of the Michigan Court of Appeals in People v. Lutz, 2008 WL 2812134 (Mich.App. 2008), reveals that Michigan has a toothless confidential marital communications privilege.  In Lutz, Jeffrey Shannon Lutz was convicted of false report of a felony, discharging a firearm at an emergency vehicle, reckless use of a firearm, and making a false report to a police radio station.  Evidence presented at trial indicated that one day a detective recovered a gun from the crime scene that likely implicated Lutz and contacted Lutz, who was a sheriff's sergeant.  During opening statements, the prosecutor indicated that there would also be evidence presented that soon after receiving this call, Lutz left "suicide messages" on his estranged wife's cell phone, which he argued would prove that Lutz knew that he was guilty of the subject crimes.  At trial, the prosecution subsequently called the same detective who had called Lutz; the plan was that the detective would testify that soon after retrieving the "suicide messages," Lutz's wife called him and discussed the content of the messages.

Defense counsel objected, however, and the trial judge found such testimony inadmissible under Michigan Rule of Evidence 403, which states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

After Lutz was convicted, he appealed, claiming, inter alia, that the state committed prosecutorial misconduct by mentioning the "suicide messages" during opening statements when evidence relating to those messages was later found inadmissible at trial.  The appellate court disagreed, noting that the decision to exclude under Michigan Rule of Evidence 403 is a discretionary decision which the prosecution could not have anticipated at the commencement of trial.

I agree with this part of the decision, but I think that things fall apart when we consider how this part of the decision was reached.  And such consideration starts with why the question of why the detective's testimony concerning the "suicide messages" was potentially admissible.  He was testifying about what Lutz's wife told him, which in turn was based upon statements made by Lutz.  So, there was "hearsay within hearsay" under Michigan Rule of Evidence 805, and each layer had to be admissible under some Rule for the detective to have been able to testify.  And the court found that this was indeed the case, with: (1) Lutz's statement being admissible as the admission of a party opponent under Michigan Rule of Evidence 801(D)(2)(A), and (2) the wife's statement being admissible as a present sense impression under Michigan Rule of Evidence 803(1).  Again, I have no problems with these findings.

But that leaves the question of why Lutz's messages to his wife weren't deemed inadmissible under the confidential marital communications privilege, which, under Michigan law, allows an individual to prevent his spouse from testifying concerning any confidential communications they shared with each other.  As I have noted before,  the purpose of the privilege is the same as the purpose behind the attorney-client privilege, the psychotherapist-patient privilege, and the clergy-penitent privilege:  to preserve a relationship that there is a societal interest in preserving by promoting the flee flow of information through alleviating any worries that the individuals might have that the secrets they share could later be aired out in a courtroom.

And this makes Michigan's reading of the privilege baffling.  According to the court in Lutz,

     "Our Supreme Court has held that the marital communications privilege provides protection only against a spouse being questioned as a sworn witness about a marital communication and, accordingly, does not preclude introduction of the marital communication through other means....Indeed, the Court specifically held that the marital communications privilege was inapplicable to hearsay statements from a police detective about statements made by a defendant's spouse....Thus, the marital communications privilege would not have precluded the prosecution from eliciting testimony from Detective Declerq relating what defendant's wife told him about a statement made by defendant. Similarly, the distinct spousal privilege generally protects a person from being compelled to testify against his or her spouse."

Really?  Doesn't this destroy the entire point of the privilege?  If the purpose of the privilege is to alleviate any worries that spouses might have that the secrets they share could later be aired out in a courtroom, how is that purpose effectuated if either spouse can vitiate the privilege by disclosing the communication to a third party?  This would be akin to a detective being able to testify that a defendant's attorney called and told him that his client admitted to him that he committed murder because it would be the detective and not the attorney testifying at trial, thus alleviating any privilege problem.  Moreover, while there would again be "hearsay within hearsay" in this hypo, the defendant's statement would be an admission, and the attorney's statement would be admissible as a statement against interest because it would expose him to sanctions, and he would be "unavailable" to testify based upon the attorney-client privilege.

I thus don't see any way that Michigan can defend its formulation of the confidential marital communications privilege.

-CM

July 24, 2008 | Permalink | Comments (6) | TrackBack (1)

Wednesday, July 23, 2008

Just A Little Harmless Bolstering?: Ninth Circuit Finds Improper Bolstering To Be Harmless Error In Cop's Appeal

I strongly disagree with the reasoning applied by the Ninth Circuit in its recent opinion in United States v. Gonzalez, 2008 WL 2778926 (9th Cir. 2008).  In Gonzalez, Gabriel Gonzalez was charged with acting under color of law to deprive three women of their bodily integrity in violation of 18 U.S.C. Section 242.  One of those women was Cecilia Tirado, who claimed that during the early morning in summer 2002, she was pulled over by an officer, who performed sobriety tests on her and ordered her into his patrol car.  She alleged that he then drove her by her home without letting her out and asked her whether she had a husband or boyfriend.  She finally claimed that after a long drive, the officer drove into a desolate parking lot, commanded her to undress, and penetrated her vagina.

The principal issue at Gonzalez's trial was the identity of the perpetrator, with Tirado testifying through an interpreter that she responded to a telephone survey by the Southgate police asking about citizen satisfaction with police activities and told her story.  While Tirado initially had identified the perpetrator as a Southgate police officer, when she was shown a photo-six-pack, she at once identified Gonzalez, a Los Angeles County sheriff's deputy, as the perpetrator.  At trial, Gonzalez testified that she was "100 percent sure" that Gonzalez had raped her.  However, despite this certainty, there were apparently "discrepancies in the dates to which she testified," which defense counsel probed on cross-examination (the Ninth Circuit's opinion doesn't make clear the nature of those discrepancies).  The prosecution thereafter gave Tirado's testimony the "official stamp of acceptance" by calling Sergeant Enrique Garza, the police officer who interviewed her, and who at trial retold the story of the assault as she had told it to him.

After he was convicted, Tirado appealed, claiming, inter alia, that the trial court erred in admitting Garza's testimony.  The Ninth Circuit agreed, finding that Tirado's prior statements were not admissible through Garza's testimony as prior consistent statements under Federal Rule of Evidence 801(d)(1)(B), which allows for the admission of a statement if:

      "[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive."

The Ninth Circuit properly found that while defense counsel questioned Tirado about the date discrepancies in her testimony, he never expressly or impliedly charged that her allegations were recent fabrications or the product of an improper influence or motive; instead, the defense merely claimed that she was mistaken.  That still left the issue, however, of whether this error necessitated a new trial or whether it was merely harmless error.  The Ninth Circuit chose the latter option, finding that:

     "A jury that believed that Tirado had had the awful experience-and no one doubted that she had-would very probably have believed that she could remember her assailant, even without the hearsay from Garza. Tirado stated at the time of her identification that she was “100 percent sure” that Gonzalez had raped her. Given this testimony, it is unlikely that any generalized vouching regarding Tirado's credibility altered the jury's verdict."

I see errors aplenty with this passage.  First, was Garza's testimony really generalized vouching?  I would say, "No."  If the prosecution called someone to testify that they knew Tirado and found her to be a truthful person, I would label that testimony generalized vouching.  Conversely, Garza retold the story of the assault as Tirado had told it to him.  In my mind, it's difficult to conceive of more specific vouching.

Second, the Ninth Circuit relied at least partially on the fact that Tirado testified that she was "100 percent sure" that Gonzalez had raped her.  I guess its point was that such certainty meant that Garza's testimony was unnecessary to make the jury believe her identification of Gonzalez.  I'm not sure that I would buy this reasoning in a regular case, but this was not a regular case.  Tirado initially thought that the person who raped her was a Southgate police officer, but she was wrong.  There were apparently date discrepancies in her testimony.  If I were a juror, these discrepancies would give me pause in believing her testimony, with Garza's bolstering testimony giving me a significant reason to press play and give her identification more weight.

Third, how could the Ninth Circuit possibly know that the jurors very probably believed that Tirado would have remembered her assailant based upon her indisputably awful experience?  I'm not a big fan of appellate review by mind reading, and even if the Ninth Circuit is correct, there are reams of research indicating that a stressful event, such as being raped, actually decreases the accuracy of identifications. See, e.g., Edward J. Imwinkelried, A Comparativist Critique of the Interface Between Hearsay and Expert Opinion in American Evidence Law, 33 B.C. L. Rev. 1 (1991).

In conclusion, I strongly disagree with the reasoning applied by the Ninth Circuit.  Its conclusion might very well still have been correct based upon other evidence and allegations in the case, but the reasons it proffered did not support a finding of harmless error.

July 23, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 22, 2008

When You Ride Alone, You Ride With Bin Laden: Judge Bars Some Interrogation Evidence In Trial Of bin Laden's Driver

The first American war crimes trial since World War II has already produced an interesting ruling.  The trial of Salim Hamdan, the former driver for Osama bin Laden, who has been accused of conspiracy and supporting terrorism, began yesterday at Guantanamo Bay, Cuba.  Hamdan met bin Laden in 1996 and began working on his farm before being promoted to a position as his driver.  Defense attorneys claim that Hamdan thereafter only kept the position because of its high salary, but prosecutors allege that Hamdan transported weapons for the Taliban and helped bin Laden escape U.S. retribution following the September 11th attacks.  Yesterday, his trial began before a jury of six officers, whom were selected from a pool of 13 flown in from other U.S. bases over the weekend.

Hamdan's trial is expected to serve as a litmus test of sorts for the justice or injustice that will be meted out by the oft-criticized military tribunal system, and if we're sticking with the litmus test metaphor, the results were not red on the first day.  Instead, Judge Keith Allred, a Navy Captain, ruled that the prosecution cannot use a series of interrogations of Hamdan conducted at the Bagram air base and in Panshir, Afghanistan, because of the "highly coercive environments and conditions under which they were made."  Specifically, Judge Allred found that at Bagram, Hamdan was kept in isolation 24 hours a day with his hands and feet restrained, with armed soldiers prompting him to talk by kneeing him in the back.  Meanwhile, he found that at Panshir, Hamdan's captors repeatedly tied him up, put a bag over his head and knocked him to the ground.  Judge Allred also indicated that he would throw out statements whenever a government witness is unavailable to vouch for the questioners' tactics.  Prosecutors are currently considering whether to appeal Allred's ruling, with the tribunals' chief prosecutor, Army Col Lawreence Morris, stating, "We need to evaluate...to what extent it has an impact on our ability to fully portray his criminality in this case, but also what it might set out for future cases."

The defense, however, was less successful in another regard, with Allred rejecting allegations of a coercive culture at Guantanamo, despite Hamdan's claim that interrogators were gatekeepers for medical treatment.  Allred instead found that the apparent link between medical care and Hamdan's cooperation with interrogators was "the natural consequence of agents seeking to help detainees in order to build rapport."  This ruling thus leaves the door open, at least for the moment, for the prosecution to use statements Hamdan made at Guantanamo, despite defense claims that all his statements were tainted by alleged abuse including sleep deprivation and solitary confinement.

Here at Evidenceprof, I've refrained from commenting much on these military tribunals because their legitimacy seems more a matter of Constitutional law than evidence law, and what they are doing doesn't really resemble the rules of evidence.  Nonetheless, I will likely provide some commentary here and there as interesting development arise throughout these trials.

-CM

July 22, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, July 21, 2008

DUN DUN!: Law & Order: UK To Begin Production This August With BSG's Jamie Bamber As One Of The Cops

It looks like Law & Order, the second longest running drama in American TV history, behind only Gunsmoke, will be opening shop across the pond this fall.  According to E! Online, Law & Order: U.K. will begin production this August and focus on the London judiciary and London cops.  And it looks like Jamie Bamber, who plays Lee Adama on one of Evidenceprof's favorite shows -- Battlestar Galactica -- will be playing one of the cops (I still remember being shocked when hearing Bamber talk on DVD special features with a thick British accent, which he hides nicely on the show).  I've had the chance to post on U.K. law a few times (see here and here), but I am definitely interested in learning more, and so I hope that BBC America or some other network shows it here a la Torchwood and that it's at least somewhat accurate.

-CM

July 21, 2008 | Permalink | Comments (0) | TrackBack (0)

Dead Man's Drop: North Carolina Case Reveals That It Still Has a Dead Man's Statute

The recent opinion of the Court of Appeals of North Carolina in Smith v. Mauldin, 2008 WL 2736416 (N.C. App. 2008), provides a nice illustration of why most states have repealed their Dead Man's Statutes.  In Mauldin, Thomas Smith executed and delivered to his sister, Sue Page, a $50,000 promissory note secured by a deed of trust on real estate located in Holden Beach.  Following the death of Page, the two documents were discovered by her daughter, Melisa Page Mauldin, who notified Smith that she was executrix of her mother's estate and that, as sole heir, she was also the successor beneficiary to the note.  Smith responded by demanding the return of the documents on the ground that the loan had never been funded.  Smith thereafter filed a complaint seeking damages and possession of the documents.  At the close of Smith's evidence, however, the trial court granted Mauldin's motion to dismiss, finding that Smith failed to present any written or competent oral evidence that there was a failure of consideration for the note and deed of trust, and the Court of Appeals of North Carolina affirmed.

The reason that Smith failed to present any such evidence was not, however, because he lacked it; instead, North Carolina Rule of Evidence 601(c), its Dead Man's Statute, disqualified him from testifying on the matter.  Pursuant to North Carolina Rule of Evidence 601(c),

     "[u]pon the trial of an action, or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through or under a deceased person or lunatic, by assignment or otherwise, concerning any oral communication between the witness and the deceased person or lunatic."

In other words, the Rule bars testimony by an interested party in court proceedings concerning any oral communication between the witness and the deceased person. As I have noted before, the theory behind these statutes is that the interested person has reason to fabricate his testimony, and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims.  As I have also noted, however, most states have abolished their Dead Man's Statutes. See Wesley P. Page, Dead Man Talking, 109 W. Va. L. Rev. 897, 898 (2007).  And the reasons that they have done so are directly applicable to Mauldin, assuming that Smith was being honest.  According to Page,

     "The main problems with the Dead Man's Statute are that it runs contrary to the philosophy underlying the general rule of witness competency and that it stifles potentially valid claims where an honest claimant has only his own testimony upon which to rely. The Statute operates to level the playing field by 'sealing the lips' of an interested survivor who wishes to testify about a transaction with a person whose 'lips have been sealed' by death.  The problem arises, then, when the claimant is honest, yet has only his own testimony on which to rely. Without his own testimony to prove his claim, the honest claimant is left without a remedy."

Under the common law, courts did the same to categories of individuals through a patchwork of rules deeming certain groups of individuals incompetent to testify at trial, including:  felons (and those convicted of crimes of crimen falsi) under the doctrine of infamy; spouses under the doctrine of coverture; and atheists on the grounds of irreligion.  These rules were meant to ensure that juries would base their verdicts on truthful evidence and to protect the souls of those who might otherwise be tempted to commit the mortal sin of perjury.

Of course, these competency rules have all been taken off the books, with courts and legislatures now generally allowing everyone to testify and then be impeached by opposing counsel.  The only Rules still around which deem certain groups of individuals incompetent to testify at trial are those which deal with the truly incompetent (Federal Rule of Evidence 601), lay witnesses who lack personal knowledge (Federal Rule of Evidence 602), those who refuse to take the oath or a nonreligious alternative (Federal Rule of Evidence 603), presiding judges (Federal Rule of Evidence 605) and seated jurors (Federal Rule of Evidence 606).  In light of these facts, I think that the time has come for North Carolina and the few states which still have Dead Man's Statutes to take them off the books.

-CM

July 21, 2008 | Permalink | Comments (0) | TrackBack (0)

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. 

-CM       

July 20, 2008 | Permalink | Comments (0) | TrackBack (0)