My brother, my witness against me: the constitutionality of the "against penal interest" hearsay exception in confrontation clause analysis.

• Author: Heisler, Sarah D.
• Position: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure

Lilly v. Virginia, 119 S. Ct. 1887 (1999)

1. INTRODUCTION

   In Lilly v. Virginia,(1) the United States Supreme Court examined whether the admission of an accomplice's custodial confession violated a criminal defendant's Sixth Amendment right to confrontation.(2) The statement at issue was admitted into evidence under the "against penal interest" exception to the hearsay rule because the confession contained statements that inculpated both the declarant and the defendant.(3) In a plurality opinion, the Supreme Court held that accomplice confessions that inculpate a criminal defendant do not fall within a firmly rooted hearsay exception.(4) The Court also authorized appellate courts to independently review whether the government's "proffered guarantees of trustworthiness"(5) are sufficient to satisfy the Confrontation Clause's residual admissibility test.(6)

   This Note examines the history of the Court's Confrontation Clause jurisprudence and the development of the relationship between the "against penal interest" hearsay exception and the Clause. This Note also analyzes the implications of the Lilly decision on future prosecutions of co-defendants. This Note concludes that in Lilly the Supreme Court correctly heightened the standard for admissibility of accomplice statements. The decision in Lilly is especially important because the Supreme Court of Virginia's interpretation of the hearsay exception undermined the constitutional protections afforded criminal defendants by the Confrontation Clause.

2. BACKGROUND

   The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment,(7) provides that "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...."(8) Scholars have debated the true origin of the Confrontation Clause, but most agree that the Clause was included in the Sixth Amendment to prevent the government's use of ex parte affidavits in lieu of live witnesses, a common practice in sixteenth- and seventeenth-century English criminal prosecution.(9) The Framers believed strongly in the right to confront one's accuser through cross-examination and thus guaranteed it in the Sixth Amendment.(10) During the last century, however, the Supreme Court has permitted the admission of certain hearsay statements in cases where the witness is unavailable to testify.(11)

   The constitutional guarantee of confrontation was not challenged in the United States Supreme Court until 1895 in Mattox v. United States.(12) In Mattox, two central witnesses who had testified against the defendant at his first trial died before the second trial commenced and were thus unavailable for cross-examination at the second trial.(13) The Court held that the transcribed testimony and cross-examinations of the unavailable witnesses from the first trial were admissible in the second trial.(14) The Court stated for the first time that the:

   primary object of the [Confrontation Clause] was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.(15) The Court recognized, however, that particular situations --require a court to admit statements from unavailable witnesses despite the constitutional right to confrontation.(16) The Court asserted that the Framers intended courts to make certain exceptions where public policy warranted them.(17) A dying declaration by a witness to a crime, the Court argued, was such an exception.(18) The Court found that a statement made before death was inherently reliable because one has no reason to lie when facing death.(19)

   Although the Mattox Court never mentioned "hearsay" in its opinion, its decision created the first exception to the Confrontation Clause protections in criminal prosecution.(20) Since Mattox, the relationship between the Confrontation Clause and the evidentiary hearsay exceptions has plagued prosecutors, defendants, and trial courts.(21) Despite the acknowledged exceptions,(22) the Court maintains that the Confrontation Clause, essentially the right to cross-examine one's accuser, is the foundation of the truthseeking process.(23) According to the Court, the trier of fact cannot properly judge the accuser's nature or the circumstances surrounding the statement in the absence of a cross-examination.(24) In fact, the Court has asserted that the Confrontation Clause is the "greatest legal engine ever invented for the discovery of truth."(25)

   Although the Court continually emphasizes the importance of the right to cross-examine one's accuser, its recent Confrontation Clause opinions have facilitated admission of accusatory statements without cross-examination.(26) Much of the Court's leniency has come in decisions where it broadened its interpretation of permissible unavailability.(27) Seventy years after ruling that statements made prior to death were admissible in Mattox, the Court opined in Douglas v. Alabama(28) that invoking one's Fifth Amendment privileges also satisfied the unavailability requirement of the hearsay rule.(29)

   In Douglas, Loyd, an accomplice to the petitioner, invoked his Fifth Amendment privilege against self-incrimination(30) at the petitioner's trial.(31) In response, the judge granted the prosecution's motion to name Loyd a hostile witness, thus permitting the prosecutor to cross-examine him.(32) The prosecution proceeded to read Loyd his custodial confession sentence by sentence and required Loyd to affirm or deny the veracity of the statements.(33) The trial court found Douglas guilty and the Alabama Court of Appeals affirmed his conviction.(34) The United States Supreme Court granted certiorari and reversed.(35) The Court held that by invoking his Fifth Amendment privileges, Loyd was "unavailable" for trial. Further, admitting Loyd's statement without affording the petitioner an opportunity to cross-examine his accuser violated the petitioner's right to confrontation.(36) Justice Brennan, writing for the majority, asserted that the truth of an accuser's statement is properly tested only by cross-examination.(37) Brennan supported his assertion by citing the Court's opinion in Mattox, where it emphasized the importance of giving a jury the opportunity to consider whether an accuser "is worthy of belief."(38) Here, Brennan indicated, the jury was denied the opportunity to hear Loyd's testimony. As a result, the jury might have improperly construed the prosecutor's reading of the testimony as the truth. Without affording the defendant the right to cross-examine Loyd, the jury was unable to know if Loyd actually made the statements and whether they were true.(39) The Court opined that admission of Loyd's statements therefore violated the petitioner's Confrontation Clause rights.(40)

   While the Court recognized the need for exceptions to the hearsay rule,(41) application of the "against penal interest" exception(42) posed problems in cases where the declarant implicated himself while also accusing the defendant of the same crime or a more serious crime.(43) Just three years after Douglas, in Bruton v. United States, the declarant, Evans, confessed to committing armed postal robbery with the defendant.(44) In a joint trial, the judge admitted into evidence Evans's confession that inculpated the defendant in the robbery.(45) The judge gave the jury limiting instructions to disregard Evans's statement when determining Bruton's guilt, but despite the court's instructions, both Bruton and Evans were found guilty.(46) The Supreme Court reversed Bruton's conviction and held that the admission violated the defendant's right to confrontation because, despite the limiting instructions, the risk was too great that the jury might have considered the co-defendant's confession when making its decision.(47)

   The Court's decision established the Breton role that restricted limiting instructions in joint trials.(48) The Court suggested that giving limiting instructions is equivalent to giving no instructions to a jury.(49) The Court recognized that its ruling might hinder criminal prosecution in joint trials, but reasoned that, in many cases, there are less harmful ways to prove the confessor's guilt than by admitting a statement that incriminates a co-defendant.(50) The Court said that where the confessor's co-defendant is denied the opportunity to cross-examine the declarant, the jury cannot know if the confession was truthful or an attempt to shift the blame to the co-defendant.(51) The Court held, therefore, that the admission of a co-defendant's statement that inculpates the defendant, even if the jury is instructed to ignore the incriminating portions, violates the defendant's Confrontation Clause rights.(52)

   These earlier cases were important in shaping the way the Court dealt with the admission of hearsay evidence, but they did not instruct the courts below how to determine what is admissible under the Confrontation Clause.(53) The Court finally established a test in Ohio v. Roberts(54) for determining admissibility of out-of-court statements in the event the witness is "unavailable" for trial.(55) In Roberts, the respondent was charged with check forgery and possession of stolen credit cards belonging to Bernard and Amy Isaacs.(56) At a preliminary hearing, Roberts called the Isaacs' daughter, Anita, as his only witness.(57) During a lengthy direct examination, Anita denied giving Roberts the checks and credit cards.(58) At Roberts' jury trial a year later, Roberts testified that Anita gave him use of...