A Case far the Admissibility of the Inculpatory Statement Against Penal Interest. Overcoming Judicial Reluctance to Change

• Author: by Captain David A. Brawn
• Pages: 04

The struggle in the law between constancy and change is largelya struggle between history and reason, between past reason and present needs.

Felix Frankfurter)

1. INTRODUCTION

   With the enactment of the Military Rules of Evidence (MRE),z "substantial changes in the prior military law of evidence" were anticipated.8 Over two years after the promulgation of the Rules, however, and as 8.n ever-increasingnumberofcasesdealing withtheRules reach the military appellate courts, very little change in the decisional law of military evidence can be naticed.'Indeed, in read. ing many of the recent opinions interpreting the Rules, one beginsto

   .JudgeldvacateGeneral'l Corps. United States Army Re~ewe Individual Mahill-zamn Augmentee. U.S Army Legal Serriees Agency Currenth sewes ab a Trial Formerly Appellsre Attornel. Government Appellate Division. U.S Army Legal Servieei Agency 1980.83. Assistant Staff Judge Adroeate. U.S.

   Army Garrison. Fort

   Derrick, Maryland. 1979-80. J D Cleveland State Unlversifs, 1979 B A, Indiana Universit, of Pennrylvnnis, 1976 Completed 92d Judge Adracate Officer Basic Course 1980 Author of A Guzdi lor Inl?odueing lnrdpolorg Sfafemnfs Again81 Penal lnlarisl ChdriMREBO4lbilSJ TrialCaun~el Forum No\ 1983 at2 Memberof the bars of the Ifate of Ohia and the commonrealth of Pennsylvania

   Department of Justlee, 1983 IO present

   IF Frankfurter, MI Justice Holmes and the Constitution 40 (1972)*Yanual far Courrs-M8rtml United State. 1969 (Rev. ed.1. eh. 27 lheieinaftereited as >IRE1

   'Statement of Robinson 0 Everett. Chief Jvdge United States Court of Military Appeals reprinted tn S Salrzhurg. L. Sehinasi. & D Sehleuter Military Rvies of Evidence Manual Foreword (1981) [heremiter tiled BJ Ei'idenee Ynnunll.

   'One apparent hwht spot ~n the ominous clouds surrounding fheiudicial mferpretamon of rhe Rules IS the favorable response fu the waiver provismns of MRE 103(a) Srr CnitedSratesv Shelwood, 15M J.222IC M.A 19831 UnitedStatesv.Fiaziir.14 M.J 173 [A C M R 19821: United States". Akera, 14 M.J. 166iA.C.M.R. 19821 While a cursory exnminanan of these opinions would ~eemfy indicate a long-awaited mag-nmon of the prafemonal competence of military trial Iaw~erb. B closer reading reveals that no dramatic change I" the law has been amculsted. Indeed while the admiision of the evidence considered tn each of these capes would hare eonafitufed error under pre-Rules pr~cfice. the enor *odd not have been found 9uflieiently prepdieid to warrant relief ~n accordance with Article 59(a). Uniform Code of

   i,trorne), T~~ ~ i ~ ~ ~ , ~ ~ crimlnai ~ ~ ~ t ~ ~ ~

   sense a judicial antagonism toward any changes in past practice. in disregard of the intended construction of the Ru1es.j

   Perhaps the judicial interpretation and application of MRE 804(b)(3) most clearly represents this judicial reluctance to full? embrace the changes In the law of military evidence intended by the drafters of the Rules.6 Although there have been several recent military opinions constructing MRE 804(b)(3),each has, for avariety or reasons. refused to uphold the admission of evidence pursuant to this Rule.' In the face of such resistance, the question becomes whether the practitioner should risk reversal on appeal by resorting to MRE 804(b)(3) to establish his or her case. It IS the purpose of this article to answer that question in the affirmative by expioring the law governing the admissibilitr of hearsay evidence against an accused in general and, in particular, by developing an analytical framework to guide the practitioner ~n securing the admission of Statements against penal interest against an accused at courts-martial.

   11. PREFACE

   Whenever evidence IS offered against a criminal defendant in a manner other than through the testimony of a witness present at trial. who 1s subpct to cross-examination and who has personal

   knowledge of the facts, both evidentiary and constitutional questions of admissibiiity are raised. As the out-of-court assertion, when offered to prove the truth of the matter asserted. is generally classified as hearsay,s it is traditionally excluded' in the absence of a specific exception authorizing its admission.10 As the statement is also being introduced against an accused in a criminal prosecution, however, the constitutionally-guaranteed right to Confrontation also generally precludes admission of the statement."

   While It is true that the hearsay rule and the Confrontation Clause emanate from the same historical roots and, indeed, are "generally designed to protect similar values,"itdoes notnecessarilyfollawthat the Confrontation Clause is merely a codification of the common law hearsay rule.12 The principles embodied ineach have never beenheld c~ngruent.'~

   The underlying premise of the hearsay rule is that untrustworthy evidence should not be the basis for judicial decisions, criminal or civil.L4 Thus, the question from an evidentiary viewpoint IS whether the circumstances surrounding the creation of the evidence are such as to provide athresholdofreliabilityintheaccuracyoftheevidence.

   "See MKL iUliil.'See MRE 802.-(See. 8.8, YRE 603, 804. MRE Bol(e) by definition. permits the introduction ot out-ai-court statements of an unarailable declarant uhen offered forapurpaieother than fa OIOW the truth af the matter therein mserfed. Furthermore. MRE 60lId1

   smn of itniernents againsf interest i,hich inculpate a mamused should be smded

   'Walifarnia Y Green. 399 U S 149 161 (19701

   Idid Lrnlsa United States". MeConnico. 7M.J 302lC.Y..4 19791, UmtedStatesv. Whale" li M J. 872, 877 (A C M.R. 19831.

   'Chambers v bli~bis~~pp~.

   410 C S 284. 298 (19731. McConnica. 7 M J at 302

   The Confrontation Clause, by contrast. is designed to prevent criminal convictions based "solely an eb pa& affidavits."': The Confrontation Clause IS more concerned with providing the trier of fact with an accurate method of determining the truth of a prior statement through what Dean Wigmore has called the great engine of CroSS-examination. as opposed to the evidentiary requirement that oniytrustiuarthye.idence be presented tothecourt.liInatherwards. the Confrontation Clause provides a criminal accused with a rightto test the veracity of deciarants of facially trustworthy evidence.

   While the Confrontation Clause precludes the use ai some hearsay evidence, no court has ever held that all hearsay evidence IS inadmissible in the face of a claimed violation of the right to canfrontation. Indeed. the Supreme Court. in one of its earliest attempts to reconcile the Confrontation Clause with the hearsay rule held that the language of the Sixth Amendment was not to be given a literal construction." While these principles are indeed interrelated, they are not eoextensiw

   Thus simply "because evidence is admitted ~n"accordance with "a long established hearsay rule" or in violation there. of. allows no "automatic e~nelu~i~n''to be drawn with respect to an accused's confrontation rights under the Sixth Amendment These are two separate queStions.ia

   Accordingly. the admissibility of a statement against penal interest must be analyzed from bath evidentiary and constitutional perspectives. Each of these separate analyses must be subdivided further. For purposes of simplicity these subdivisions may be referred to as questions Of unavailability and reliability Thus. admissibility of a statement against penal interest requires the establishment of. (1) unavailability of the declarant from an evidentiary perspective: (2) reliability of thestatement froman evidentiary perspective: (3) unavailability of the declarant from a constitutional perspective; and (4) reliability of the Statement from a constitutional

   'jCoit/omio L Green. 399 US. at 166

   "Duffon v Evans. 400 U S 74, 89i19701

   Xaddox Y. United States, 166 US. 237 (1896) idyine deelarstians admissible despite literal language af Confrontation ClauseJ

   .~McConn,eo,7 ll.J af306!e~nngCsllfornlav Green 3990 S 149,156119701J See 6.g. Douglnau Alabama. 380 0.S 415 11966)inanheariayeiideneeubed purportedly to refresh the recollection of B recanting witnrsi riolated the acemed's right to eanfrantmon due to the inability tocross-examine rho witnebs regarding the truth ai the 8t~tDmmtJ

   ButsreBmion. 391 U S at 136" 12!fh(ressonfarpicludingevideneeas an evidentiary matter algo requires its ex~Iu88~nae a eonititurmal matter1 The corollarp to thx smm 1s that ifevidence iiinadmissible'undorani.oi rheexceptmr to the rule againit heans) whether 11s admission would offend the Canfranlation Clause becomes moot. . M e w 11 hl J at 937

   19841 STATEMENTS AGAINST INTEREST

   perspective. While there is often substantial overlap between these requirements, it is important at thisjuncturetaviewthemasanalytically distinct.

   111. ADMISSIBILITY FROM AN EVIDENTIARY PERSPECTIVE

   MRE 802 precludes the admission into evidence of hearsay state. ments except as providedby,interalia. otherruiesofevidence.MRE 804 provides one such exception and lists Several categories of admissible evidence, dependent upon the nonavailability of the declarant. Thus, to properly admit a statement against penal Inter. est from an evidentiary perspective, the statement must meet the requirements set forth in MRE 804(b) and the declarant must have been properly determined to have been unavailable as that ward is defined in MRE 804(a). These requirements will be discussed seriatim,

   1. UNAVAILABILITY FROM AN EVIDENTIAR Y PERSPECTIVE

      MRE 804(b) provides that certain statements, although generally inadmissible under theruieprecludingtheuseafhearsayevidence,'gare nevertheless admissible as substantive evidence where the declarant is unavailable as a witness at trial. "Unavailability." as defined by MRE 804(a), includes, interalia,%Othe situation in which the witnew has invoked his or her right to remain silent and that claim is sustained by the military judge.2'

      '#hlRE 802.*OMRE 804(a) provider bix rpeclfie defmrtiom of unavstlability. each of whlch requires the establishment of certain facts Only...