Statements Against Penal Interest, Fed.R.Evid. 804(B)(3): Corroboration, Confrontation Clause; Bruton — Does it Survive Crawford?

Corroboration: A statement that 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 is admissible under hearsay exception Fed.R.Evid. 804(b)(3)(A). However, in a criminal case a statement that tends to expose the declarant to criminal liability, offered either to exculpate or inculpate, is not admissible unless also supported by corroborating circumstances that clearly indicate its trustworthiness, Fed.R.Evid. 804(b)(3)(B). The additional requirement that the court pursuant to Fed.R.Evid. 104(a) find the presence of corroborative circumstances clearly indicating the trustworthiness of the statement against penal interest when offered to exculpate an accused was imposed in response to an awareness of both the suspect nature of such statements and the impact such a statement would have upon a jury applying a standard of proof of guilt beyond a reasonable doubt. It was felt that a criminal defendant could, and would, frequently produce a witness willing to falsely testify that a third person, in his presence, had admitted to committing the crime for which the defendant was on trial. Very interesting is the dispute concerning the relevance of extrinsic evidence corroborating the facts stated in the statement itself. While the United States v. Forest, 355 F.3d 942 (6th Cir. 2004), rev’d on other grounds by Garner v. United States, 543 U.S. 1100 (2005), requires the presence of extrinsic evidence that supports the inculpatory statements of the declarant, the same Sixth Circuit in United States v. Johnson, 581 F.3d 320, 329 (6th Cir. 2010) concludes that the requirement of corroboration “requires us to focus not ‘on whether other evidence in the case corroborates what the statement asserts, but rather on whether there are corroboratory circumstances which clearly indicate the trustworthiness of the statement itself.’ ” Most authority concludes that corroboration includes both the declarant’s trustworthiness as well as the statement’s trustworthiness. Confrontation clause: Pursuant to the Supreme Court’s jurisprudence beginning with Crawford, as of this moment, when the declarant of an out-of-court hearsay statement is not and was not subject to cross-examination concerning such statement offered as substantive evidence against the criminal defendant, the following defines the concept of “testimonial” for confrontation purposes: An out-of-court statement is “testimonial” only if hearsay as defined in Fed.R.Evid. 801(a)-(d) and the statement was made by, or made to, or elicited by a police officer, other law enforcement personnel, or a judicial officer, if upon objective evaluation of the statement and actions of both the declarant and interrogator, if any, involved in the interrogation or statement creation, along with the informality or formality of the interrogation or statement creation, considered in light of the circumstance in which the interrogation or statement creation occurred, the court concludes that the primary purpose of the interrogation or statement creation was to establish or prove past events relevant to a later criminal prosecution.Under Crawford/Davis, as interpreted in Bryant and Clark, clearly collateral incriminating statements against penal interest of an unavailable declarant made to a law enforcement official are almost universally “testimonial” and barred by the confrontation clause when offered as substantive evidence against a criminal defendant, i.e., the primary purpose of the interrogation or statement creation was to establish or prove past events relevant to a later criminal prosecution. A statement against penal interest, including collateral statements, not said to a law enforcement official, i.e., “nontestimonial”, that satisfies the requirements of Fed.R.Evid. 804(b)(3) will satisfy Crawford/Davis and progeny. The Bruton doctrine. In Bruton v. United States, 391 U.S. 123 (1968), the United States Supreme Court held that the substantial risk that the jury, despite instructions to the contrary, would consider statements of a nontestifying codefendant not substantively admissible against the accused presented in a joint trial as implicating the accused made introduction of such statement improper. However, a properly redacted statement of a nontestifying codefendant, not substantively admissible against the accused, may be introduced: “Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name but any reference to her existence,” Richardson v. Marsh, 481 U.S. 200, 210 (1987). A properly redacted statement is one that does not facially incriminate the codefendant, Gray v. Maryland, 523 U.S. 185 (1998). A redacted statement has been held to satisfy the foregoing standard following insertion of the pronouns, “we” or “they” or the indefinite pronoun, such as “someone” or “another person” when following such insertions the statement does not facially, without reference to other evidence, still obviously refer to and implicate the codefendant. A proper limiting instruction is, of course, required. A statement by a co-defendant, regardless of whether offered in a joint or severed trial, containing a collateral inculpatory statement, when made to a law enforcement official with a primary purpose of establishing or proving past events relevant to a later criminal prosecution, i.e., “testimonial”, is precluded by Crawford/Davis and progeny absent the opportunity for cross-examination. Thus, a Bruton issue does not arise with respect to “testimonial” statements. However, a question remains as to whether Bruton retains validity where the collateral inculpatory statement was made under circumstances that make the statement “nontestimonial” under Crawford/Davis and progeny definition presented above such as when made to someone outside law enforcement. When one considers that Justice Scalia authored current confrontation clause theory in Crawford/Davis in response to and specifically to prevent some state and lower federal courts from improperly ignoring prior confrontation clause analysis by admitting as substantive evidence collateral inculpatory statements against penal interest, it is suggested that there is simply no way that the United States Supreme Court would permit such statements, if nontestimonial but substantively admissible solely against the nontestifying co-defendant in a joint trial, to be free from constitutional oversight, whether that be the confrontation clause, the due process clause, or both. In fact, the confrontation clause is clearly multifaceted enough to support an independent justification for the continued vitality of Bruton and its progeny. What the four decisions cited above indicate is the continued desire of lower courts, as extensively detailed by Justice Scalia in Crawford to admit collateral inculpatory statement against the criminal defendant wherever and however possible. Lower courts in great measure simply do not share the United States Supreme Court’s view expressed in Williamson, Lilly and Crawford that the criminal justice system is functioning more justly when such collateral inculpatory statement of a nontestifying declarant are barred from presentation before the jury for any purpose.