Watch a "B movie" late at night and you stand a good chance of seeing the proverbial scene in a courtroom drama in which a police informant takes the stand to inculpate
the defendant in the crime.
confessions that inculpate a criminal defendant are not within a firmly
any statements that tend to inculpate the nondeclarant.
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)
Writing for the plurality,(222) Justice Stevens reversed the decision of the Supreme Court of Virginia and held that the admission of Mark Lilly's custodial confession violated petitioner's Confrontation Clause rights.(223) Justice Stevens asserted that "`accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence."(224) Justice Stevens also held that appellate courts should independently review the government's proffered guarantees of trustworthiness under the second half of the Roberts inquiry.(225)
The "against penal interest" exception proposed by the Commonwealth in Lilly is based on the presumption that a person is unlikely to lie to inculpate himself.(244) In Lee v.
United States,(255) the Court first stated its distrust of accomplice statements that inculpate the declarant and the defendant.(256) It stated that statements inculpating the declarant and the defendant together "ought not to be passed upon by the jury under the same rules governing other and apparently credible witnesses."(257) Since Crawford, the Court has "spoken with one voice in declaring presumptively unreliable accomplice confessions that incriminate defendants."(258)
that an in-custody statement which inculpates another as well as the speaker may have been made with a view to currying favor with law-enforcement authorities,"(50) after analyzing the surrounding circumstances, it found no such danger in the accomplice's confession because his "version [of the crime] did not attempt to trivialize his own involvement in the nefarious scheme by shifting responsibility to his cohorts; rather, it frankly disclosed the extent of his own participation without any effort to demonstrate that others were really the ones to blame."(51) Thus, the court concluded that the accomplice's statement satisfied the rule because it was genuinely against his penal interest.(52)
According to Justice O'Connor, the word "statement" has two possible meanings.(106) The first meaning, "a report or narrative,"(107) connotes an extended declaration.(108) Under this definition, Justice O'Connor argued that Harris' entire confession, both the self-inculpatory and non-self-inculpatory parts, would be admissible so long as in the aggregate the confession sufficiently inculpates him.(109) Justice O'Connor argued that the second meaning, "a single declaration or remark,"(110) would suggest that Rule 804(b)(3) covers only those declarations or remarks within a confession that are individually self-inculpatory.(111)
Third, Justice Kennedy argued that the Court's interpretation of the Rule would cause courts to exclude almost all statements inculpating defendants.(171) Justice Kennedy conceded that the Court's decision would allow the rule to apply to a limited number of situations; however, he concluded that it would be rare to find a case in which the precise self-inculpatory words of the declarant would also inculpate the defendant.(172) Justice Kennedy argued that Congress would not pass a rule that had such a small effect.(173)
The Supreme Court granted certiorari to determine the scope of Rule 804(b)(3).(186) All of the Justices agreed that clearly self-serving or self-exculpatory out-of-court statements may not qualify as sufficiently against interest to ensure reliability.(187) Similarly, all of the Justices agreed that statements that singly inculpate the declarant are admissible under Rule 804(b)(3).(188) The crucial point of contention between the majority approach and Justice Kennedy's concurrence concerned the admissibility of "neutral" or "non-self-inculpatory" statements that are collateral to the precisely self-inculpatory words (collateral statements).(189)
In contrast to the majority, Justice White noted that the confession in Bruton was made by Evans, Bruton's codefendant.(43) This, explained Justice White, raised a real issue of credibility.(44) A confessor's statements are less trustworthy than other hearsay evidence, according to Justice White, because he is tainted by the strong motivation to inculpate
his codefendant and thereby absolve himself of all or any of the blame.(45) Justice White believed that a jury, with a proper limiting instruction, would be able to recognize and understand the need to ignore this category of particularly suspect hearsay.(46)