The Williamson standard for the exception to the rule against hearsay for statements against penal interest.

• Author: Duck, Emily F.
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In Williamson v. United States,(1) the United States Supreme Court defined the scope of Federal Rule of Evidence 804(b)(3)'s (Rule 804(b)(3) exception from the rule against hearsay for statements that subject a declarant to criminal liability.(2) Rule 804(b)(3) reads:

   The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: ... (3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

   Rule 804(b)(3) "permits the introduction of statements against penal interest--defined as statements tending to subject the declarant to criminal liability."(3) When used as evidence in a criminal trial, these statements may be exculpatory--tending to exonerate the defendant--or inculpatory--tending to implicate the defendant.(4)

   In Williamson, the Court held that statements against interest are admissible only if they are individually self-inculpatory as to the declarant.(5) In the majority's view, non-self-inculpatory statements (described as collateral statements in the parlance of Rule 804(b)(3) are not admissible even if the declarant made them within a broader narrative that is generally self-inculpatory.(6) Justice Kennedy argued in his concurrence that collateral statements, as well as individual statements against interest, are admissible.(7)

   This Note argues that the majority correctly adopted a narrow interpretation of Rule 804(b)(3). The Court's approach properly ensures the reliability of statements against interest by focusing on the rationale underlying the rule--that reasonable persons do not make statements against their penal interest unless they believe those statements to be true.(8)

2. BACKGROUND

   Hearsay--defined as the in-court repetition of an out-of-court statement offered to prove the truth of the matter asserted--is not generally admissible as evidence.(9) The rule prohibiting the admission of hearsay reflects concerns about its trustworthiness and reliability.(10) Unlike in-court testimony, hearsay statements are not usually given under oath or solemn affirmation and are not subject to cross-examination by opposing counsel to test the perception, memory, veracity, and articulateness of the out-of-court declarant.(11) In short, hearsay evidence is inadmissible because it is not possible to subject it to incourt procedures designed to ensure the reliability of evidence.(12)

   1. THE COMMON LAW EXCEPTION TO THE RULE AGAINST HEARSAY FOR STATEMENTS

      AGAINST INTEREST

      Exceptions to the rule against hearsay allow courts to admit certain hearsay statements that display indicia of reliability sufficient to overcome the dangers typically posed by hearsay.(13) Even though common law courts did not recognize an exception for declarations against penal interest, the exceptions for declarations that directly affected the declarant's pecuniary or proprietary interest form the foundation for Rule 804(b)(3).(14) Under this exception, common law courts admitted statements if: (1) the declarant was dead; (2) the declaration was against the pecuniary or proprietary interest of the declarant; (3) the declaration was of a fact immediately cognizable by the declarant personally; and (4) the declarant had no motive to falsify the fact declared.(15)

      Traditionally, courts viewed inculpatory statements against penal interest as unreliable for three reasons.(16) First, the psychological premise that reasonable persons will not make a statement against their penal interest, although perhaps true as a generalization, can break down when applied to a specific individual.(17) Second, most statements inculpating a defendant are collateral to the portion of the statement that is against the declarant's interest.(18) Following this argument, the portion of the statement that specifically implicates the defendant is rarely against the declarant's penal interest, thereby weakening the inference that the statement is trustworthy.(19) Third, the declarant may often be motivated either to make false statements to curry favor with the authorities, or to shift or share blame for a crime.(20) Because of these factors, courts at common law were reluctant to expand the rule admitting statements against interest to include inculpatory statements against penal interest.(21) In 1913, the Supreme Court, in Donnelly v. United States,(22) adopted the early English precedents against admitting statements against penal interests.

   2. THE LEGISLATIVE HISTORY OF FEDERAL RULE OF EVIDENCE 804(b)(3)

      In 1969, the Advisory Committee to the Standing Committee on Rules of Practice and Procedure completed its first draft of the Federal Rules of Evidence.(23) The Committee departed from the common law rule of Donnelly and instituted an exception for statements against penal interest in response to "an increasing amount of decisional law recogniz[ing that] exposure to punishment for crime" was a sufficient guarantor of evidentiary reliability.(24) The Committee sided with Justice Holmes' dissent in Donnelly and agreed that the common law's refusal to allow the introduction of any statement against penal interest could not be reconciled with a rule allowing the admission of statements against pecuniary or proprietary interests.(25)

      However, the Committee refused to allow the admission of statements against penal interest that inculpated the defendant, citing their inherent evidentiary unreliability.(26) Pointing out that "statements of codefendants have traditionally been regarded with suspicion because of the readily supposed advantages of implicating another," the Committee explicitly limited the new federal hearsay exception in the last line of the rule: "[T]his example does not include a statement or confession offered against the accused in a criminal case, made by a co-defendant or other person implicating both himself and the accused."(27)

      When the Supreme Court issued the official draft of the Federal Rules of Evidence, however, it omitted the restriction against inculpatory statements against penal interest from Rule 804(b)(3). The accompanying Advisory Committee Note (Committee Note) explained that such inculpatory statements could qualify as statements against interest within the meaning of the Rule.(28) Although the House of Representatives sought to bar the admission of inculpatory statements against penal interest,(29) the Senate rejected that limitation on the hearsay exception.(30) The Senate's view prevailed in Conference, and the Conference Report explained that "[t]he Conferees agree[d] to delete the provision regarding statements by a co-defendant, thereby reflecting the general approach in the Rules of Evidence to avoid attempting to codify the constitutional evidentiary principles."(31) The Conference Committee, focusing on the Constitutional right to confrontation, concluded that Rule 804(b)(3) should not exclude inculpatory statements against interest.(32)

      Currently, the text of Rule 804(b)(3) discusses exculpatory statements, but is silent as to the admissibility of inculpatory statements against penal interest.(33) The Committee Note following the Rule, however, states that "[o]rdinarily the third-party confession is thought of in terms of exculpating the accused, but this is by no means always or necessarily the case: it may include statements implicating him, and under the general theory of declarations against interest they would be admissible as related statements."(34) The Committee Note goes on to state that neither Douglas v. Alabama(35) nor Bruton v. United States(36) "require[s] that all statements implicating another person be excluded from the category of declarations against interest."(37) As a rationale for including declarations against penal interest within the common law exception for statements against interest, the Committee Note affirms that exposure to criminal liability satisfies the against-interest requirement.(38) The Committee Note emphasizes the important need to consider the circumstances surrounding the statements and warns against statements made in custody that may have been attempts to curry favor with the authorities.(39)

   3. CASE LAW INTERPRETING RULE 804(b)(3)

      In its final form, Rule 804(b)(3) states that the hearsay rule does not exclude "a statement which ... at the time of its making ... so far tended to subject [the declarant] to ... criminal liability ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Since the adoption of Rule 804(b)(3) in 1975, lower federal court opinions have considered,(40) and in some cases admitted, inculpatory statements against penal interest as a valid exception to the hearsay rule.(41) In 1978, the Fifth Circuit proposed a three-part test in United States v. Alvarez.(42) The defendant in Alvarez had been convicted of heroin trafficking after the introduction of an incriminating statement made by a man who was dead at the time of the trial.(43) The Fifth Circuit reversed the lower court and determined that the out-of-court statements of the alleged accomplice were untrustworthy and were inadmissible as declarations against penal interest.(44) The Court in Alvarez held that a statement against interest may be admissible when: (1) the declarant is unavailable; (2) the statement so far tends to subject the declarant to criminal liability "that a reasonable [person] in his position would not have made...