Friday, December 31, 2010
Brother To Brother: First Circuit Finds Private Confession To Brother Not Admissible Under Rule 804(b)(3)
Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for
A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
So, would it be correct to make a blanket statement that a private confession to a brother can never constitute a statement against interest under Rule 804(b)(3)? The First Circuit didn't go quite that far in its recent opinion in Santiago v. O'Brien, 2010 WL 5175178 (1st Cir. 2010), but it came pretty darn close.
In O'Brien, Peter Santiago was convicted in Massachusetts of
trafficking in two hundred or more grams of cocaine....His defense was that the drugs and drug-dealing paraphernalia found in his apartment belonged to Oley Saradeth-an acquaintance who stayed in Santiago's apartment from time to time and who died of pneumonia in the interim between the police raid in November 1997 and the trial in October 1998. Although Santiago testified that the drugs were Oley's, this effort to shift blame was hampered by the trial court's refusal to admit into evidence a confession Oley purportedly made to his brother, Fanta Saradeth.
After Santiago unsuccessfully appealed in the state court system, he filed a petition for a writ of habeas corpus in federal district court, claiming that he should have been allowed to introduce Oley's statement as a statement against interest. The district court, however, denied the petition, and the First Circuit affirmed, first noting that
In excluding the December 1997 confession, the trial court accepted the Commonwealth's argument that a statement made only to one's brother is not genuinely against the speaker's penal interest because the speaker assumes the statement will remain private; further, the court found that the statement was uncorroborated by any circumstances indicating its trustworthiness.
The First Circuit was somewhat skeptical of this holding, finding that
Whether the first ground (if intended as a blanket statement rather than a judgment on the particular facts) accords with Massachusetts law is unclear....Elsewhere, statements made in private-even when the possibility of future disclosure seems remote-may at least on some facts nevertheless be against penal interest.
The court, however, did not need to resolve this issue because it ultimately concluded that
private statements, even if potentially against penal interest, are not all the same, and the trial court's grounds of decision in this case overlap: a private confession to a brother, where there is nothing to suggest it will become public while the speaker is alive, is at best minimally "against penal interest" and certainly not (standing alone) shown to have a further hallmark of trustworthiness. Here, the supposed confession, as clarified on cross-examination, is not even a straightforward exculpation of Santiago. It was surely not shown to be "trustworthy" hearsay.