Inculpatory Statements Against Penal Interest: State v. Parris Goes Too Far

• Publication year: 1984

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 1FALL 1984

Inculpatory Statements Against Penal Interest: State v. Parris Goes Too Far

James E. Beaver and Cheryl McCleary(fn*) (fn**)

I. Introduction

At common law and until the adoption of the Federal Rules of Evidence in 1975, declarations against interest were viewed with great suspicion. As stated by the Court of Errors and Appeals of Connecticut in 1963, "[t]he dangers inherent in this type of evidence are so great that a trial judge should not admit [a declaration against interest] unless, in the exercise of a sound discretion, he concludes that the particular declaration against interest meets this test."(fn1) The Indiana Appellate Court observed: Where declarations [against interest] . . . are received they are "generally considered a weak class of evidence, by reason of the fact that the party making them may not have clearly expressed his meaning, or may have been misunderstood, or the witness, by unintentionally altering a few words of the expressions really used, may give an effect to a declaration completely at variance with what the party did actually say."(fn2)

Until 1975 the strong weight of authority in the United States excluded an exculpatory(fn3) declaration by an unavailable

witness even if the witness, rather than the defendant, had committed the crime for which the defendant stood charged.(fn4) Wig-more called the rule "barbarous,"(fn5) and Mr. Justice Holmes observed that "no other statement is so much against interest as a confession of murder."(fn6) No one dared propose, however, that the inculpatory'(fn7) declaration of an unavailable witness in a murder trial should be received to convict the defendant when the unavailable witness declared that he and the defendant committed the crime together. Yet this has been the trend since 1975,(fn8) and it is the rule laid down by the Washington Supreme Court in State v. Parris.(fn9) Under the Parris rule, a declaration against penal interest by a witness, inculpating both the witness and the defendant, may be received against the defendant in a criminal trial.(fn10) The Parris rule is unsound for the reasons expounded in Judge William H. Williams' dissent in Parris(fn11) and developed in this article.

In 1975 the United States Congress adopted Federal Rule of Evidence 804(b)(3).(fn12) Four years later, Washington adopted verbatim the same rule, allowing into evidence a hearsay statement that is against one's interest as an exception to the general principle of excluding hearsay statements.(fn13) Although this exception was traditionally limited to statements against the declarant's pecuniary or proprietary interest,(fn14) the recently adopted version departs from common law and allows into evidence hearsay statements that are against the declarant's "penal" interest.

The new "penal interest" exception specifically authorizes the receipt into evidence of extrajudicial statements that tend to subject the declarant to criminal liability, at least when the declarant is "unavailable."(fn15) At a criminal trial, such statements may be exculpatory, exonerating the defendant, or inculpatory, implicating the defendant. Rule 804(b)(3) expressly allows exculpatory statements into evidence when "corroborating circumstances clearly indicate the trustworthiness of the statements,"(fn16) but the rule does not mention inculpatory statements. The Parris court, by a 6-3 vote, indicated that statements implicating both declarant and defendant are receivable as against penal interest.(fn17)

On the other hand, a declarant's statements implicating the defendant but not the declarant would not be receivable under Rule 804(b)(3) or, presumably, under Parris. The fact that the declarant's interest is disserved supplies the supposed psychological badge of authenticity.(fn18) The damnification of the defendant is justified because the declarant would probably not speak ill of himself unless the entire statement were true.

Hearsay problems and confrontation clause(fn19) difficulties were among the reasons inculpatory statements were omitted from the rule.(fn20) Confrontation clause problems are not present with exculpatory statements because such statements do not speak "against" the defendant, but only speak in his behalf.(fn21) An inculpatory statement, however, is directed against the defendant, and the sixth amendment arguably is violated if the defendant cannot confront the declarant.(fn22) Consequently, inculpatory statements must be scrutinized intensively to see if they conform to sound hearsay doctrine and confrontation clause requirements.

In 1982, in State v. Parris,(fn23) the Washington Supreme Court allowed inculpatory statements against penal interest into evidence without intense scrutiny of either hearsay or confrontation clause requirements.(fn24) Parris affirmed a court of appeals decision interpreting ER 804(b)(3) to allow inculpatory statements into evidence.(fn25) The supreme court concluded that because the penal interest exception adopted the federal rule verbatim, it was a "firmly rooted exception" and therefore reliable.(fn26) The court allowed inculpatory statements into evidence even though ER 804(b)(3) does not mention inculpatory statements, and even though historical precedent excluded all penal interest statements from evidence.(fn27)

The facts of the Parris case favored receipt of the evidence, and the result was the conviction of an apparent heroin pusher. It is not just right-wing, law-and-order advocacy that today protests "coddling criminals" and "handcuffing police." The Federation of New York State Judges recently announced such a policy resolution:

The residences of people of this State have become barricaded places in which they live behind chained and bolted doors; the streets have become the lawless marches of robbers, rapists and felons of every kind who victimize men, women and children. . . . The moral law, the oath of judicial office and the Canons of Judicial Ethics require every judge to execute the law by sentencing such defendants to prison terms that will effectively punish them for the crimes that they have committed.(fn28)

It is incongruous that in a "liberal" era, evidence that would have been excluded throughout the history of our country should now be received to convict a criminal defendant

This article first demonstrates that courts historically did not trust penal interest statements in general, and that courts were extremely suspicious of any statements by a third party that implicated the defendant. Since Washington adopted Federal Rule of Evidence 804(b)(3) verbatim, this article then analyzes the legislative history of the rule. The article concludes that the legislative history favored exclusion of inculpatory statements but that Congress failed to codify the exclusion because of unrelated problems. Finally, the article discusses the confrontation clause problems that arise when inculpatory statements are allowed into evidence. This article argues that the Parris holding(fn29) should be narrowed, in a case now pending in the court of appeals,(fn30) to exclude inculpatory statements altogether. The authors urge a rule of exclusion notwithstanding the supreme court's rejection of this claim as having little merit.(fn31)

II. The Parris Case

A. Facts

John Parris was charged in Thurston County Superior Court as an accomplice in the unlawful delivery of heroin. He was arrested while participating in a drug deal that an informant had arranged with DeHart at a Taco Time restaurant. DeHart was the charged principal in the conspiracy and the person who made the incriminating statements about Parris. An undercover police officer and the informant were at the scene of the drug purchase. Parris drove up to the restaurant and had a discussion with DeHart inside his car. After Parris drove away, DeHart told the officer and the informant that "the drugs were being gotten." In response to the informant's question, "Do you think he'll return with the drugs, or the money and the quantity and quality will be accurate?", DeHart replied, "Yes, I think so. There won't be any problem."(fn32)

Later, at a prearranged time, all parties returned to the restaurant. DeHart walked out from behind the building and delivered the heroin to the undercover police officer. At the same time, the police officer spotted the car that Parris had been driving earlier, leaving the back of the parking lot.

At trial, DeHart claimed his fifth amendment privilege against self-incrimination and was therefore unavailable as a witness.(fn33) The prosecutor examined the police officer and the informant regarding DeHart's out-of-court statements made at the scene of the drug deal. The superior court found the testimony admissible as penal interest statements under ER 804(b)(3). The court of appeals affirmed that decision.(fn34)

B. Analysis

In affirming the courts below, the Washington Supreme Court allowed into evidence inculpatory statements made against a criminal defendant without adequately addressing the newly enacted penal interest exception. The court ignored longstanding policies against penal interest statements as a whole and policies against inculpatory statements in particular. These policies should have given the court guidance to fill in a legislative omission. Instead, the court...