Monday, January 25, 2010
Statements Against Interest And The Confrontation Clause, Take 2: Professor James Duane On The Advisory Committee Note To The Amendment To Rule 804(b)(3)
Last November, I posted a comment to this list, which can be viewed on-line here, in which I expressed my confusion with a one-sentence paragraph in the to the pending amendment to FRE 804(b)(3). As I understand it, that rules change has been approved by the Judicial Conference and will take effect on December 1 of this year, assuming the Supreme Court does not reject that proposal. In what will probably become the most plainly erroneous sentence anywhere in the Advisory Committee Notes, the Committee inexplicably stated that:
"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."
As I stated in November, this line immediately struck me as clearly wrong, and has been repeatedly rejected by the , which has now held at least eight times that plea allocutions that are clearly admissible under Rule 804(b)(3) may nevertheless be "testimonial" and therefore inadmissible (at least in a criminal case when offered against the accused) in light of Crawford. 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).
Since I wrote that note, by the way, I have discovered that the same point had been made by other scholarly commentators so authoritative that I can now say with confidence that the Second Circuit and I are certainly correct about this. Stephen Saltzburg, Trial Tactics 249 (2007) (Crawford "strongly suggested that the Confrontation Clause would be a major impediment to introduction of declarations against interest, even though they satisfy ); Mueller & Kirkpatrick, Evidence 979 & n.4 (4th ed. 2009) (noting that statements such as plea allocutions otherwise admissible under Rule 804(b)(3) can still be testimonial).
But still a mystery remained. Although a number of you wrote me responses to that comment, most of them off-list, every response I received was from someone who agreed with me. Not one of you was able to even hazard a guess as to how and where the Advisory Committee had gotten the terribly mistaken impression that “the requirements of this exception [Rule 804(b)(3)] assure that declarations admissible under it will not be testimonial.” Until now, I have honestly been wondering whether there might have been some subtle and clever explanation for this statement that I might have missed (always a possibility), or whether the Committee had simply blundered.
I now know that it was the latter. I have just discovered the explanation to the Committee’s confusion in the place where I obviously should have looked: the Advisory Committee’s earlier draft of the same Committee Note, which appears in the minutes of its meeting in May 2008. In those minutes, the Committee mistakenly reported that:
That is simply not true. The lower courts have not uniformly reached that conclusion, as I have shown. Indeed, I am not aware of a single case, and the Committee has not cited a single case, that has so held. Those minutes continue by mistakenly claiming that:
“A statement is “testimonial” when it is made to law enforcement officers with the primary motivation that it will be used in a criminal prosecution — but such a statement cannot be a declaration against because the Supreme Court held in Williamson v. United States that statements made to law enforcement officers cannot qualify under the exception as a matter of .” [Emphasis added.]
Again, that is also false. Indeed, it is hard to believe that a sentence this inaccurate was written or approved by anyone who ever read the Williamson case. Williamson specifically held that 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). The Court in that case also held that some portions of the “confession” made by the criminal suspect to the police after his arrest "would clearly have been admissible under Rule 804(b)(3).: Id.
Finally, the Advisory Committee then approved at that 2008 meeting the following “explanatory” language for proposed inclusion in the Committee Notes to this Rule:
The Committee found no need to address the relationship between Rule 804(b)(3) and the Confrontation Clause. The Supreme Court in Crawford v. Washington, 541 U.S. 36, 53-54 (2004), held that the Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Courts after Crawford have held that for a statement to be admissible under Rule 804(b)(3), it must be made in informal circumstances and not knowingly to a law enforcement officer — and those very requirements of admissibility assure that the statement is not testimonial under Crawford. See, e.g., United States v. Johnson, 495 F.3d 951 (8th Cir. 2007) (accomplice’s statements implicating himself and the defendant in a crime were not testimonial as they were made under informal circumstances to another prisoner, with no involvement of law enforcement; for the same reasons, the statements were admissible under Rule 804(b)(3)); United States v. Franklin, 415 F.3d 537 (6th Cir. 2005) (admissions of crime made informally to a friend were not testimonial, and for the same reason they were admissible under Rule 804(b)(3)). [Emphasis added.]
Again, that is simply false. No court to my knowledge – and certainly neither of the two cases cited above in this draft Committee Note – has ever held that a statement can satisfy the requirements of 804(b)(3) only if it is "not knowingly made to a law enforcement officer" – the very claim that the Supreme Court specifically rejected in Williamson. And the relevant portions of the two cases cited here, Johnson and Franklin, were not in any way interpreting or explaining the requirements of Rule 804(b)(3), but were commenting only on the requirements of Crawford.
It is no wonder, then, that these two cases were subsequently deleted from the June 2008 draft of the Advisory Committee Notes, and that the paragraph was ultimately reduced to the single sentence that now remains. It is a pity, however, that the paragraph was not simply deleted altogether. The one sentence that remains – which falsely claims that there is “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” – is the product of legal assumptions and analysis that were mistaken from top to bottom. Before the end of this year, if all goes as scheduled, it will be the most misleading and confounding sentence to be found anywhere in the Advisory Committee Notes to any of the Federal Rules of Evidence.
Professor James Joseph Duane
Regent Law School