Thursday, November 15, 2012
Land Of Confusion?: 11th Circuit Finds Statements Against Interest Inadmissible Because They Were Later Recanted
Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for
A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
In United States v. Berry, 2012 WL 5476922 (11th Cir. 2012), the Eleventh Circuit rejected the defendant's Rule 804(b)(3) appeal, finding that the statements proferred by the defendant did not satisfy subsection (B) of the Rule. But was this ruling correct?
In Berry, Lawrence Berry, Jr. was convicted of various drug and firearms offenses. These offenses arose after the police searched a residence on Diehl Drive and uncovered drugs, money, and a rifle. According to the Eleventh Circuit's opinion, while Berry's co-conspirator, Carlos Lofton,
leased the Diehl Drive residence, Berry had control and dominion over the premises because he had keys to the house (while Lofton did not) and Berry was staying in the residence and kept personal items, including clothes, there.
After he was convicted, Berry appealed, claiming, inter alia, that the district court erred in precluding him from admitting Lofton's statements made during the search in which he admitted "that the drugs and rifle found at the Diehl Drive residence belonged to him." In response, the Eleventh Circuit found that
To be admissible under Rule 804(b)(3), a hearsay statement must satisfy three elements: (1) the declarant must be unavailable; (2) the statement tends to subject the declarant to criminal liability such that a reasonable person in his position would not have made the statement unless he believed it to be true; and (3) the statement is corroborated by circumstances clearly indicating its trustowrthiness.
The court then found that Berry presented sufficient evidence to establish the first and second elements but ultimately concluded that
Corroborating circumstances...did not clearly indicate the statements' trustworthiness....At Lofton's own trial, he made inconsistent statements, denying a connection to the drug evidence retrieved at the Diehl Drive residence. He also recanted his post-arrest statements—about his ownership of the cocaine found at the house—in a follow-up interview at the police department. To the extent that the district court ruled that the statements should be excluded under Fed.R.Evid. 403, the court did not abuse its discretion: allowing multiple, inconsistent statements by an unavailable witness could mislead the jury and confuse the issues.
Hmmm...I'm not sure that I agree with this on two levels. Lofton leased the Diehl Drive residence and was, according to the prosecution, Berry's co-conspirator. Those circumstances certainly seem to corroborate Lofton's statements to the officers to the search. Moreover, the fact that Lofton later recanted merely underscores that his prior statements were truly against penal interest. I would be surprised if most declarants who make statements against penal interest don't recant, especially if they are later charged.
What bothers me more is the court's conclusion that "allowing multiple, inconsistent statements by an unavailable witness could mislead the jury and confuse the issues." I'm bothered by this because courts do this all the time. Prior inconsistent statements are admissible under Federal Rule of Evidence 613 and Federal Rule of Evidence 801(d)(1)(A). Furthermore, once a witness is impeached via a prior inconsistent statement, the other party can then often introduce a prior consistent statement under Federal Rule of Evidence 801(d)(1)(B). This happens all the time without incident, so what was the problem in Berry? What issue(s) would be confused?
I don't see any. I think tyhat all of Lofton's statements should have been admitted. Rather than being confusing, the statements would have left jurors with two clear alternatives: (1) In the heat of the moment, Lofton made a true confession and then recanted when realizing the consequences; or (2) Lofton initially lied for whatever reason (maybe to protect Berry?) and then later told the truth. What's so confusing about that?