EvidenceProf Blog

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

Saturday, September 5, 2009

Vice City: D.C. Court Of Appeals Finds Statement Susceptible To More Than One Interpretation Doesn't Qualify As Statement Against Interest

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for 

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. 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.

In its 1979 opinion in Laumer v. United States, 409 A.2d 190, 197) (D.C. 1979), the District of Columbia Court of Appeals adopted this statement against interest exception to the rule against hearsay. And in its recent opinion in Andrews v. United States, 2009 WL 2778391 (D.C. Cir. 2009), that court had to resolve whether a statement that is susceptible to more than one interpretation can qualify as a statement against interest. It answered that question in the negative. I disagree.

In AndrewsVincent Andrews, then a Metropolitan Police Department officer, was convicted of first-degree sexual abuse of a ward, tampering with physical evidence, obstruction of justice, and simple assault. 

Andrews' convictions arose out of his insistence on having sex with a prostitute, Antoinette Keys, whom he had just arrested and taken into police custody. Ms. Keys, having been subjected to demeaning treatment and sexual abuse of a verbal nature in prior encounters with members of the MPD, felt that Andrews' conduct “had gone too far.” She accordingly hid the condom she used in performing oral sex on Andrews in her clothing, planning to report the assault to Andrews' superiors and to use the condom as physical evidence of the sexual act. For his part, Andrews was desperate to cover up his actions. Suspecting that Keys had saved the condom despite telling him she had thrown it away, he grabbed her by her arm and pushed it behind her back and started beating her head against the table in the police station conference room, threw her on the floor, ripped off her pants and panties, grabbed the condom from between her buttocks, and flushed it down the toilet-all in the presence of other MPD officers who did nothing to stop him.

On appeal, Andrews argued, inter alia, that the trial court improperly excluded a statement that Latasha Turner, another prostitute who was arrested with Keys, made to a police officer about Turner and Keys "setting up" the officers who had arrested them. And, according to the D.C. Court of Appeals, for the statement to have been admissible as a statement against interest, it needed to satisfy a three-part inquiry:

First, the court must determine whether the declarant made the statement....Second, the court must determine that the declarant is unavailable....Third, the proponent of the statement must demonstrate "that there exist corroborating circumstances that clearly indicate the trustworthiness of the statement."

The court found that the first two steps were satisfied because the evidence established that Turner made the statement and that she was unavailable at trial because she disappeared prior to trial. The court did, however, find a problem under the third step, concluding that

Turner did not use the word "bribe" and she didn't talk about exchanging "sexual favors" for the women's release from custody. Importantly, Andrews' counsel agreed with the trial court that Turner's statement was susceptible to more than one interpretation but continued to press his understanding of the statement. But if there are two possible interpretations of Turner's statement (and we find at least two interpretations possible here), one of which would subject Turner to criminal liability while the other would not, the necessary indicia of trustworthiness are absent. Indeed, statements against penal interest "are reliable, and therefore admissible, precisely insofar as they genuinely increase the declarant's exposure to criminal sanction." 

Really? According to the court(s), "[u]nder one interpretation, Turner and Keys were just 'trying to get the police officers in trouble' but, interpreted another way, Keys and Turner had attempted to bribe the officers." I don't disagree with this conclusion, but I do disagree with the result. It seems to me that however you construe a statement about "setting up" police officers, it is a statement that could subject the declarant to criminal liability, qualifying it as a statement against interest.

Moreover, even if the statement was susceptible to a meaning that did not subject Turner to criminal liability, wasn't it more susceptible to an interpretation that did? And if that was indeed the case, shouldn't that be enough to qualify the statement as a statement against interest?



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