Oak Harbor, Seattle, King County, Whidbey Island, Island County, Coupeville, Attorney, Criminal Defense Lawyer, Felony Defense, Gross Misdemeanor, Misdemeanor Defense Attorney Discusses Statements Against Interest and Their Use Against Others.
Hearsay is not reliable. The game "telephone" is illustrative. One person says something and it comes out distorted and inaccurate on the other end. The hearsay rule is designed to avoid such unreliable, inaccurate, and untruthful statements from being admitted against an accused.
Returning to the statement against interest exception to the hearsay rule under ER 804(b)(3) in Part 1--some jurisdictions adhere to the the "whole statement approach." The whole statement allows narratives to be admitted if the whole statement, generally, is against the declarant's interest. Thus, returning to our example, if defendant A makes an out of court statement, whereby he allegedly tells witnesses B and C, that he committed the crime with the help of D, then, under the whole statement approach if A becomes unavailable for D's trial (e.g. asserts the fifth amendment right to silence), then B and C may take the stand at D's trial and testify that A said he and D committed the crime. This could be damning evidence against D. B and C's statements may be critical for the state's case against D. However, a scrupulous analysis may defeat the applicability of the "whole statement approach" to the ER 804(b)(3) exception to the hearsay rule.
The "whole statement approach" was previously acceptable. See, e.g. State v. Whelchel (cited oftentimes for proposition that statements against interest include statements that incriminate the declarant and another defendant). But the "whole statement approach" under ER 804(b)(3) is no longer acceptable in Washington and under federal law.
In Williamson v. United States, the declarant was arrested after he consented to a vehicle search that uncovered 19 kilograms of cocaine. Thereafter the declarant made several statements against his interest and implicated Williamson. The declarant explained that he was transporting the cocaine for Williamson and Williamson had been travelling in tandem with him prior to the declarant's arrest.
At Williamson's trial, the declarant refused to testify and was deemed unavailable under Rule 804. The trial court concluded that the statements made by the declarant were against the declarant's penal interest and were admissible. The court specifically admitted the declarant's statements that implicated Williamson under 804(b)(3).
The U.S. Supreme Court, however, vacated the judgment and remanded for further proceedings. As mentioned above, the Court held "the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. The Court reached this conclusion because it determined that "statement" under Rule 804(b)(3) is "a single declaration or remark." This means that "Rule 804(b)(3) cover[s] only those declarations or remarks within the confession that are individually self-inculpatory." And courts may not assume under 804(b)(3) that a statement is self-inculpatory simply because it is part of a narrative that is against interest, "and this is especially true when the statement implicates someone else." The court reasoned that:
The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession's non-self-inculpatory parts. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.
The Court went on to state:
Nothing in the text of Rule 804(b)(3) or the general theory of hearsay Rules suggests that admissibility should turn on whether a statement is collateral to a self-inculpatory statement. The fact that a statement is self-inculpatory does make it more reliable; but the fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement's reliability. We see no reason why collateral statements, even ones that are neutral as to interest, should be treated any differently from other hearsay statements that are generally excluded.
The Washington State Supreme Court later adopted Williamson's reasoning and rejected the whole statement approach as well. In State v. Roberts, the declarant made a tape-recorded statement to two detectives. The declarant admitted to helping Roberts bind a murder victim, tape the victim's mouth, and move the victim to prevent discovery of the victim. The declarant also admitted he wiped his fingerprints after leaving the scene of the crime. However, during this narrative the declarant stated that Roberts admitted he killed the victim and that Roberts also helped bind the victim and tape his mouth.
Prior to Roberts' trial, the defense made a pretrial motion to admit the declarant's tape-recorded statements into evidence. The defense sought to admit only those portions of the declarant's statements that were against the declarant's interest--remaining sections of the statement were redacted. However, the trial court denied this motion. The trial court "...took an all or nothing approach to what constituted [the declarant's] statement...." (i.e. applied the whole statement approach to ER 804(b)(3). Thereafter, at trial, the defense attempted to call the declarant, but the declarant asserted his Fifth Amendment right to not testify.
On appeal, Roberts contended that the declarant's confession may be redacted so that only those portions specifically against the declarant's interest would constitute his "statement." The state argued the entire confession was the declarant's "statement" and was inadmissible. The state argued that admitting portions of the declarant's statements would permit Roberts to mislead the jury.
The Washington State Supreme Court agreed with Roberts. It held that the "trial judge erred in failing to consider portions of [the declarant's] confession as separate 'statements' for purposes of the statement against interest exception to the hearsay rule." The court expressly adopted the Williamson approach. The court reasoned:
Williamson is based on a reading of ER 804(b)(3) more consistent with the rule's underlying principle. Hearsay is excluded because 'out-of-court statements are subject to particular hazards. The declarant might be lying; he might have misperceived the events which he relates; he might have faulty memory; his words might be misunderstood or taken out of context by the listener. As the text of the rule suggests, however, a hearsay 'statement...which...at the time of its making...so far tended to subject the declarant to...criminal liability' is one 'that a reasonable person in the declarant's position would not have made...unless the person believed it to be true.' Hearsay 'statements against interest' are admissible 'because it is presumed that one will not make a statement damaging one's self unless it is true.' The 'whole statement' approach, however, often admits 'statements' which do not fall under this rubric.
Thus, returning to the example, in Washington state and in the federal jurisdictions, B and C should not be able to testify under ER 804(b)(3) that an unavailable A said that D committed a crime. A's statements that implicate D are not specifically against A's interest. A's out of court statements that implicate D do not fall within the exception under ER 804(b)(3) and constitute inadmissible hearsay.
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