Monday, April 26, 2010
Pleading In: Court Of Appeals Of Ohio Finds Plea Allocution Qualified As A Statement Against Interest
A statement that 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 the declarant believed it to be true. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the truthworthiness of the statement.
I had never really thought about it before, but as the recent opinion of the Court of Appeals of Ohio, Sixth District, in State v. Jones, 2010 WL 1633340 (Ohio App. 6 Dist. 2010), makes clear, a plea allocution by an unavailable declarant should qualify as a statement against interest under this Rule.
In Jones, Marquise Jones was convicted of 17 felony offenses in connection with an orchestrated, armed assault and robbery of a group of men. At trial, the prosecution called Jones' brother to the witness stand. Jones' brother was also allegedly involved in the assault and robbery and entered a guilty plea pursuant to a plea agreement. At the brother's trial, the court required the brother to give a plea allocution, i.e., a statement of what he did and why he did it.
At Jones' trial, the brother invoked his Fifth Amendment privilege against self-incrimination. The prosecution then admitted relevant portions of the brother's plea allocution, including a portion in which he stated:
"My brother called me. He picked me up. We went to Charlotte Duke's house. I went in the opposite room. They was all discussing. My brother had ski masks. I didn't know he had no guns on him. I knew he had ski masks. I didn't know he had no guns."
After he was convicted, Jones appealed, claiming, inter alia, that his brother's plea allocution was improperly admitted as a statement against interest under Ohio Rule of Evidence 804(B)(3). The Court of Appeals of Ohio disagreed, finding that
A plea allocution is conducted only after the individual has been fully apprised of and waived a litany of constitutional rights, including Fifth Amendment rights. As such, the allocution statement was unprotected as a matter of law and thereby admissible. In conformity with this legal truism, Evid.R. 804(B)(3) establishes that a statement against interest is admissible when the declarant, "(1) was unavailable to testify at trial; (2) the confession tended to subject them to criminal liability such that a reasonable person in their position would not have made the confession unless they believed it to be true; and (3) collaborating circumstances clearly indicate the trustworthiness of the confession."
We find that given the witness's refusal to cooperate in questioning, even when limited in scope to the making of the plea allocution statement in conjunction with the fact that the allocution statement rendered the witness criminally liable and led to his conviction and incarceration, the allocution statement is admissible pursuant to the criteria set forth in Evid.R. 804(B)(3).
(As a side note, is "truthworthiness" a word? It sounds to me more like a counterpart to Stephen Colbert's truthiness than an actual word).