Thursday, August 10, 2023
Assume that a defendant testifies at a plea hearing in a way that incriminates himself and tends to exonerate someone else. If that other person is later prosecuted and the testifying defendant pleads the Fifth, is his testimony inadmissible or admissible as (1) former testimony; (2) a statement against interest; or (3) satisfying the residual hearsay exception? In its opinion yesterday in United States v. Dunn, 2023 WL 5065149 (8th Cir. 2022), the Eighth Circuit found such testimony inadmissible.
In Dunn, Darnell Dunn was convicted of unlawful possession of a firearm as a felon. The charge came after an officer pulled over Dunn's car and a gun (that was used in a shooting the night before) fell when his passenger, Justin Lindsey, left the vehicle. Like Dunn, Lindsey was charged with unlawful possession of a firearm as a felon.
Lindsey pleaded guilty. At his plea hearing, Lindsey testified that he owned the firearm, but did not know that the gun had been used in a shooting on the night before his arrest. Lindsey claimed that he purchased the gun on the morning of his arrest “from a person [he knew] through a person.” Lindsey said that Dunn did not know the gun was in the car, and that he “threw the gun to Dunn and told him to put it into the glove compartment” during the encounter with Officer Sweeney.
At Dunn's subsequent trial, Lindsey pleaded the Fifth, and Dunn unsuccessfully tried to introduce his plea hearing testimony. In upholding this decision, the Eighth Circuit addressed the three hearsay exceptions discussed in the introduction as follows:
Rule 804(b)(1) provides that an unavailable witness's testimony from a prior hearing is not excluded by the rule against hearsay if the party against whom the testimony is offered had "an opportunity and similar motive to develop [the testimony] by direct, cross-, or redirect examination." The government's motive at the plea hearing, however, was only to establish a factual basis for Lindsey's guilty plea, and to ensure that the plea that was knowing and voluntary....The government had no motive to develop Lindsey's testimony about whether Dunn knowingly possessed the firearm, because Dunn's involvement was immaterial to the validity of Lindsey's guilty plea....The district court correctly declined to admit Lindsey's testimony from his plea hearing under Rule 804(b)(1)....
Rule 804(b)(3) provides that a "statement against interest" is not excluded by the rule against hearsay. A statement in a criminal case qualifies as one against interest if (a) a reasonable person would have made the statement only if he believed it to be true, because the statement exposed the person to criminal liability, and (b) the statement is supported by corroborating circumstances that clearly indicate its trustworthiness. Only those portions of a declarant's statement that tend to expose him to criminal liability are admissible under the rule....
The district court explained that once Lindsey decided to plead guilty, Dunn's culpability for possessing a firearm did not affect Lindsey's criminal liability. Lindsey's statements tending to exculpate Dunn were thus not against Lindsey's penal interest. The district court also did not err in concluding that Lindsey's statements about Dunn were neither corroborated nor trustworthy. As the court observed, Lindsey had a "clear motivation to lie to exonerate" his cousin. Lindsey's credibility suffered when he could not identify the person from whom he supposedly purchased the gun on the morning of the arrest: "like I told you, I bought the gun through a person that I knew, through...a mutual person that I knew." The district court did not abuse its discretion in declining to admit Lindsey's prior statements under Rule 804(b)(3).
Dunn also contends that the district court should have admitted Lindsey's statements under Federal Rule of Evidence 807, the "residual exception" to the rule against hearsay. The district court did not err, however, in concluding that Lindsey's statements lacked the "sufficient guarantees of trustworthiness" required by the rule. As discussed, Lindsey's statements were not supported by corroborating circumstances indicating their trustworthiness, and there were sound reasons to doubt his credibility. The court properly declined to admit the evidence under Rule 807.