Wednesday, August 20, 2014
Thicker Than Water: 9th Circuit Finds Brother's Statement Inadmissible as Statement Against Interest
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.
Basically, while most hearsay is deemed unreliable and inadmissible, statements against interest can be reliable and inadmissible under the theory that an innocent man wouldn't generally say that he sold drugs or robbed a bank. What happens, however, when such a statement comes from the father, brother, or mother of a man charged with selling drugs or robbing a bank? That was the question addressed by the Ninth Circuit in its recent opinion in United States v. Gadson, 2014 WL 4067203 (9th Cir. 2014).
In Gadson, Anthony Gadson and Willie Wilson were convicted of conspiracy to distribute more than 500 grams of cocaine, possession with intent to distribute controlled substances, and possession of firearms in furtherance of their conspiracy and possession of controlled substances. The charges that led to these convictions came after police discovered, inter alia, $38,000 in the garage at Gadson's house.
In preparing for trial, Gadson learned that Brandon [his brother] had made two statements to the police that were helpful to Gadson. Specifically, Brandon said that it was he who had put the $38,000 in cash into Gadson's garage at the Gillam Way house. Brandon also denied that he had given Gadson bags of $40,000 to $50,000, which contradicted [a witness's] testimony that he had witnessed those transactions. In addition, Brandon told Wilson in a jail conversation that "[y]ou and I both know [Gadson] should not be in it," possibly referring to the case arising out of the drug operation....
At trial, Gadson had tried to introduce these statements into evidence after proving that Brandon was unavailable to testify. Thereafter, on appeal, Gadson claimed that the district court erred in deeming these statements inadmissible under Federal Rule of Evidence 804(b)(3). According to the Ninth Circuit,
while Brandon's statement that he was the person who had put money in the garage at the Gillam Way house might have been self-inculpatory, the district court could have reasonably concluded that it was not supported by corroborating circumstances indicating its trustworthiness. In general, the exculpatory statements of family members "are not considered to be highly reliable," LaGrand v. Stewart, 133 F.3d 1253, 1268 (9th Cir.1998); see also United States v. Paguio, 114 F.3d 928, 933 (9th Cir.1997), and therefore the close family relationship between Brandon and Gadson supports the district court's determination that Brandon's statements were not trustworthy.
So, does that mean that family member statements will always be deemed unreliable and inadmissible under Rule 804(b)(3)? No. For instance, take a look at Pagulo, which the court cited in Gadson. In Pagulo, the Ninth Circuit held as follows:
There is one factor that cuts against the trustworthiness of the father's statement, and that is that the appellant is his son. "Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true." A motive of love might, however, induce a reasonable father to make a false self-inculpatory statement in order to save his son. The possibility that this noble motive would induce a false statement against penal interest cuts in favor of exclusion. But the district judge reasonably concluded that the loan officer, escrow agent, and accountant all corroborated the proposition that the father and not the son managed the entire transaction, and the circumstances were consistent with that, so the corroboration of trustworthiness requirement was satisfied. While a jury could still conclude that the father was lying to save his son, the corroboration sufficed for admissibility of the evidence. As the district judge correctly decided, it was up to the jury to decide whether the father's statement against penal interest was motivated by truthfulness or a noble motive to lie.
In other words, while a statement by a close family member is generally thought to be unreliable, other factors can overcome this presumption and render it admissible under Rule 804(b)(3).