EvidenceProf Blog

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

Monday, November 16, 2009

Statements Against Interest And The Confrontation Clause: Professor James Duane Uncovers Troubling Statement In Advisory Committee Note To Amendment To Rule 804(b)(3)

I have written previously on this blog about the upcoming amendment to Federal Rule of Evidence 804(b)(3), the statement against interest exception to the rule against hearsay. I have also written previously about the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), and its holding that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. So, it seems natural that the 2009 Advisory Committee Note to the amendment would mention the Confrontation Clause implications of the new Rule 804(b)(3). Apparently, though, that is not the case as Regent Law School Professor James Duane notes in a very interesting and compelling e-mail to the Evidence professor listserv. Below is that e-mail, which I fully endorse:

An open (and respectful) letter to the Evidence Rules Advisory Committee: Is it really true that "statements against interest" are never testimonial?

Dear friends and colleagues:


I recently looked for the first time at the 2009 Advisory Committee Notes to the imminent amendment to Rule 804(b)(3), which contain the following line that caught my eye:


“The Committee found no need to address the relationship between Rule 804(b)(3) and the Confrontation Clause, because the requirements of this exception assure that declarations admissible under it will not be testimonial.”


I suspect that it may now be too late in the process to stop that line from going into effect along with the proposed amendment, and it would probably not do a great deal of mischief if that is the case.  But I do not believe that this line is even close to accurate.  (Indeed, the point seems so obvious that I cannot believe I am the first to point this out.)  The Committee gave no explanation for this assumption.  My best guess is that the Committee had in mind the many statements admissible under this exception where the declarant was confessing his criminal conduct to a trusted friend or accomplice.  But this exception has never been so limited, has it?


For example, there are “many circumstances in which Rule 804(b)(3) does allow … [e]ven the confessions of arrested accomplices” to be admitted against the declarant’s partners in crime, as long as “they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor.”  Williamson v. United States, 512 U.S. 594, 603-04 (1994) (noting that some portions of the “confession” made by a criminal suspect to the police after his arrest in that case “would clearly have been admissible under Rule 804(b)(3)”).  Are there not many circumstances in which such confessions are clearly “testimonial”? See Crawford, 541 U.S. at 51 (listing “an accuser who makes a formal statement to government officers” as an example of that which is clearly testimonial). 


Indeed, the hearsay statement that was deemed to be testimonial and which led to reversal in Crawford was admitted by the lower courts as a “statement against interest” under Washington’s version of Rule 804(b)(3).  Crawford, 541 U.S. at 40.  The Supreme Court’s opinion in that case did not, of course, need to consider the propriety of that ruling on an issue of state law – but it is noteworthy that the Court’s opinion contained no hint of any impression that the lower court’s ruling was a surprising or unlikely interpretation of the ordinary requirements of that hearsay exception.


Here’s another example:  before Crawford, the Circuit Courts deemed it “well-settled … that plea allocutions of unavailable co-conspirators are admissible at trial as statements against interest.”  United States v. Becker, 502 F.3d 122, 127 (2d Cir. 2007).  See also id. at 129 (“Prior to Crawford, we regularly approved the admission of an unavailable witness's plea allocution to prove the existence and scope of a conspiracy…”)  And yet the Supreme Court, in listing examples of “plainly testimonial statements,” specifically cited the formerly common federal practice of admitting evidence of a “plea allocution” by the accused’s codefendant for the purpose of “showing [the] existence of a conspiracy.”  Crawford, 541 U.S. at 64; see also Davis, 126 S.Ct. at 2275 (citing “guilty pleas” as evidence arising out of “the testimonial context”). This may have been technically dictum, but the lower courts have shown no hesitation in concluding after Crawford that plea allocutions are testimonial, since they are made in open court, under oath, and in response to structured questioning by the trial judge or the prosecutor.  The Second Circuit has made this point in reversing a considerable number of convictions even though the evidence was properly admitted under Rule 804(b)(3) under controlling Second Circuit precedent and Williamson before Crawford was decided.  United States v. Riggi, 541 F.3d 94, 102 n.2 (2d Cir. 2008); United States v. Becker, 502 F.3d 122, 127-29 (2d Cir. 2007); United States v. Hardwick, 523 F.3d 94, 98 (2d Cir. 2008);  United States v. Reiffer, 446 F.3d 65, 86-87 (2d Cir. 2006); United States v. Al-Sadawi, 432 F.3d 419, 425-26 (2d Cir. 2005); United States v. Zhou, 428 F.3d 361, 374 (2d Cir. 2005); United States v. Jones, 393 F.3d 107, 110-11 (2d Cir. 2004); United States v. McClain, 377 F.3d 219, 221-22 (2d Cir.2004).  My view has always been that those cases are surely correct. 


Indeed, these cases are part of the reason why I once wrote, based on an extensive review of just about every reported appellate federal Crawford decision written before Melendez-Diaz, that: “Which criminal cases will be most affected by the new constitutional standard established by Crawford and Davis?  It may be too early to predict with certainty, but those cases will almost surely have the greatest impact on the admissibility of statements in two classes of cases: (1) testimonial reports to the police that were admitted under the exceptions for present sense impressions and excited utterances, and (2) testimonial confessions, including guilty pleas, that formerly were admitted under the hearsay exception for statements against the interest of the declarant.  In almost every federal case decided since Crawford in which some statement was held to have been erroneously admitted in violation of the Confrontation Clause, the statement was admitted under one of these hearsay exceptions.  These are the cases in which defense counsel must now be especially vigilant to watch for a possible constitutional objection.”  Weissenberger & Duane, Federal Rules of Evidence: RulesLegislative History, Commentary and Authority 443-44 (6th ed. 2009).  I have never seen anything to change my view of that matter.


This leads me to pose two important questions to this group:


1.      Does anyone else out there agree with me (and at least the Second Circuit Court of Appeals) that some of these well-settled precedents plainly authorize the admission of statements against interest under Rule 804(b)(3) – at least in civil cases, for example – under circumstances where such statements would clearly qualify as “testimonial” under Crawford?   


2.      If not, can anyone explain to me why you would agree with the Advisory Committee’s contrary insistence that “the requirements of this exception assure that declarations admissible under it would never be testimonial”?  If there is some valid reason why that sentence might be true, I honestly cannot even imagine what it might be.


If my objection is sound, some might say, it makes no big difference.  Probably true.  Even if this proposed new line from the Committee Notes is certainly mistaken, as I believe it is, no good court will be misled into thinking that the Advisory Committee had effectively overruled, for example, the long line of Second Circuit cases that have held that plea allocutions otherwise admissible under Rule 804(b)(3) are “testimonial.”  The opinions of the Committee are of course not controlling on constitutional questions, even though they are entitled to much respect as persuasive authority. 


But still, if I am correct, it would seem to be a good idea – if it’s not yet too late? – to withdraw this line from publication, even if only for the following two reasons:


(1) to minimize the risk that some less talented judges might be confused by this passage into mistakenly inferring, as the Advisory Committee has apparently done, that any statement that is truly “testimonial” would never meet the requirements for admissibility under this Rule (such a court would be compelled to adopt either an erroneously narrow view of what this Rule allows or an unduly truncated view of what Crawford forbids), and


(2) because, all else being equal, it is a good idea for the Committee Notes to be free from plain errors, especially when so many of us require our students to read those Notes. 


Professor James Joseph Duane



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