OCTOBER TERM, 1993
Syllabus
WILLIAMSON
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 93-5256. Argued April 25, 1994-Decided June 27,1994
After Reginald Harris refused to testify at petitioner
Williamson's federal trial on cocaine possession and distribution
charges, the District Court ruled that, under Federal Rule of
Evidence 804(b)(3)'s hearsay exception for statements against penal
interest, a Drug Enforcement Administration agent could recount two
custodial interviews in which Harris had freely confessed to
receiving and transporting the drugs in question, but also
implicated Williamson as the drugs' owner. Williamson was
eventually convicted, and the Court of Appeals affirmed.
Held: The judgment is vacated, and the case is remanded.
981 F.2d
1262, vacated and remanded.
JUSTICE O'CONNOR delivered the opinion of the Court with respect
to Parts I, II-A, and II-B, concluding:
1. The most faithful reading of Rule 804(b)(3)-which renders
admissible "statement[s] which ... so far ten[d] to subject the
declarant to ... criminal liability ... that a reasonable person
... would not have made [them] unless believing [them] to be true"
-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. Although the statutory term
"statement" can mean either an extended declaration or a single
remark, the principle behind the Rule, so far as it is discernible
from the text, points clearly to the narrower reading, so that only
those remarks within a confession that are individually
self-inculpatory are covered. The Rule is founded on the
commonsense notion that reasonable people, even those who are not
especially honest, tend not to make self-inculpatory statements
unless they believe them to be true. This notion does not extend to
a confession's non-self-inculpatory parts-to parts that are
actually self-exculpatory, or to collateral statements, even ones
that are neutral as to interest. A district court may not just
assume that a statement is self-inculpatory because it is part of a
fuller confession, especially when the statement implicates someone
else. The policy expressed in the Rule's text is clear enough that
it outweighs whatever force lies in ambiguous statements contained
in the Advisory Committee Notes to the Rule. Pp.598-602.
2. The foregoing reading does not eviscerate the against penal
interest exception. There are many circumstances in which Rule
804(b)(3)
595
does allow the admission of statements that inculpate a criminal
defendant. Even the confessions of arrested accomplices may be
admissible if they are truly self-inculpatory, rather than merely
attempts to shift blame or curry favor. The question under the Rule
is always whether the statement at issue was sufficiently against
the declarant's penal interest under the Rule's language, and this
question can only be answered in light of all the surrounding
circumstances. Pp. 602-604.
JUSTICE O'CONNOR, joined by JUSTICE SCALIA, concluded in Part II
-C that, on remand, the Court of Appeals must inquire in the first
instance whether each of the statements in Harris' confession was
truly self-inculpatory. Pp. 604-605.
O'CONNOR, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II-A, and II-B,
in which BLACKMUN, STEVENS, SCALIA, SOUTER, and GINSBURG, JJ.,
joined, and an opinion with respect to Part II-C, in which SCALIA,
J., joined. SCALIA, J., filed a concurring opinion,
post, p.
605. GINSBURG, J., filed an opinion concurring in part and
concurring in the judgment, in which BLACKMUN, STEVENS, and SOUTER,
JJ., joined,
post, p. 607. KENNEDY, J., filed an opinion
concurring in the judgment, in which REHNQUIST, C. J., and THOMAS,
J., joined,
post, p. 611.
Benjamin S.
Waxman argued the cause and filed
briefs for petitioner.
John F. Manning argued the cause for the United
States.
With him on the brief were Solicitor General Days and Assistant
Attorney General Harris. *
*Briefs of
amici curiae urging affirmance were filed for
the State of California et al. by
Daniel E. Lungren,
Attorney General of California, and
M. Howard Wayne, Deputy
Attorney General, and by the Attorneys General for their respective
jurisdictions as follows:
Larry EchoHawk of Idaho,
Pamela
Carter of Indiana,
Robert T. Stephan of Kansas,
Chris
Gorman of Kentucky,
Richard P. Ieyoub of Louisiana, J.
Joseph Curran, Jr., of Maryland,
Frank J.
Kelley of Michigan,
Joseph P. Mazurek of Montana,
Don Stenberg of Nebraska,
Frankie Sue Del Papa of
Nevada,
Michael F.
Easley of North Carolina,
Lee
Fisher of Ohio,
Jeffrey B. Pine of Rhode Island,
T.
Travis Medlock of South Carolina,
Jan Graham of Utah,
Jeffrey L. Amestoy of Vermont, and
James S.
Gilmore III of Virginia; and for Wayne County, Michigan, by
John D. O'Hair and
Timothy A. Baughman.
596
JUSTICE O'CONNOR delivered the opinion of the Court, except as
to Part II-C.
In this case we clarify the scope of the hearsay exception for
statements against penal interest. Fed. Rule Evid. 804(b)(3).
I
A deputy sheriff stopped the rental car driven by Reginald
Harris for weaving on the highway. Harris consented to a search of
the car, which revealed 19 kilograms of cocaine in two suitcases in
the trunk. Harris was promptly arrested.
Shortly after Harris' arrest, Special Agent Donald Walton of the
Drug Enforcement Administration (DEA) interviewed him by telephone.
During that conversation, Harris said that he got the cocaine from
an unidentified Cuban in Fort Lauderdale; that the cocaine belonged
to petitioner Williamson; and that it was to be delivered that
night to a particular dumpster. Williamson was also connected to
Harris by physical evidence: The luggage bore the initials of
Williamson's sister, Williamson was listed as an additional driver
on the car rental agreement, and an envelope addressed to
Williamson and a receipt with Williamson's girlfriend's address
were found in the glove compartment.
Several hours later, Agent Walton spoke to Harris in person.
During that interview, Harris said he had rented the car a few days
earlier and had driven it to Fort Lauderdale to meet Williamson.
According to Harris, he had gotten the cocaine from a Cuban who was
Williamson's acquaintance, and the Cuban had put the cocaine in the
car with a note telling Harris how to deliver the drugs. Harris
repeated that he had been instructed to leave the drugs in a
certain dumpster, to return to his car, and to leave without
waiting for anyone to pick up the drugs.
Agent Walton then took steps to arrange a controlled delivery of
the cocaine. But as Walton was preparing to leave the interview
room, Harris "got out of [his] chair ... and ...
597
took a half step toward [Walton] ... and ... said, ... 'I can't
let you do that,' threw his hands up and said 'that's not true, I
can't let you go up there for no reason.'" App. 40. Harris told
Walton he had lied about the Cuban, the note, and the dumpster. The
real story, Harris said, was that he was transporting the cocaine
to Atlanta for Williamson, and that Williamson was traveling in
front of him in another rental car. Harris added that after his car
was stopped, Williamson turned around and drove past the location
of the stop, where he could see Harris' car with its trunk open.
Ibid. Because Williamson had apparently seen the police
searching the car, Harris explained that it would be impossible to
make a controlled delivery.
Id., at 41.
Harris told Walton that he had lied about the source of the
drugs because he was afraid of Williamson.
Id., at 61, 68;
see also id., at 30-31. Though Harris freely implicated himself, he
did not want his story to be recorded, and he refused to sign a
written version of the statement.
Id., at 24-25. Walton
testified that he had promised to report any cooperation by Harris
to the Assistant United States Attorney. Walton said Harris was not
promised any reward or other benefit for cooperating.
Id.,
at 25-26.
Williamson was eventually convicted of possessing cocaine with
intent to distribute, conspiring to possess cocaine with intent to
distribute, and traveling interstate to promote the distribution of
cocaine, 21 U. S. C. §§ 841(a)(1), 846; 18 U. S. C. § 1952. When
called to testify at Williamson's trial, Harris refused, even
though the prosecution gave him use immunity and the court ordered
him to testify and eventually held him in contempt. The District
Court then ruled that, under Rule 804(b)(3), Agent Walton could
relate what Harris had said to him:
"The ruling of the Court is that the statements ... are
admissible under [Rule 804(b)(3)], which deals with statements
against interest.
598
"First, defendant Harris' statements clearly implicated himself,
and therefore, are against his penal interest.
"Second, defendant Harris, the declarant, is unavailable.
"And third, as I found yesterday, there are sufficient
corroborating circumstances in this case to ensure the
trustworthiness of his testimony. Therefore, under [United
States v. Harrell, 788 F.2d
1524 (CAll 1986)], these statements by defendant Harris
implicating [Williamson] are admissible." App. 51-52.
Williamson appealed his conviction, claiming that the admission
of Harris' statements violated Rule 804(b)(3) and the Confrontation
Clause of the Sixth Amendment. The Court of Appeals for the
Eleventh Circuit affirmed without opinion, judgt. order reported at
981 F.2d
1262 (1992), and we granted certiorari. 510 U. S. 1039
(1994).
II A
The hearsay rule, Fed. Rule Evid. 802, is premised on the theory
that 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. And the ways
in which these dangers are minimized for in-court statements-the
oath, the witness' awareness of the gravity of the proceedings, the
jury's ability to observe the witness' demeanor, and, most
importantly, the right of the opponent to cross-examine-are
generally absent for things said out of court.
Nonetheless, the Federal Rules of Evidence also recognize that
some kinds of out-of-court statements are less subject to these
hearsay dangers, and therefore except them from the general rule
that hearsay is inadmissible. One such cat-
599
egory covers statements that are against the declarant's
interest:
"statement[s] which ... at the time of [their] 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[s] unless believing [them] to be true." Fed. Rule
Evid. 804(b)(3).
To decide whether Harris' confession is made admissible by Rule
804(b)(3), we must first determine what the Rule means by
"statement," which Federal Rule of Evidence 801(a)(1) defines as
"an oral or written assertion." One possible meaning, "a report or
narrative," Webster's Third New International Dictionary 2229,
defn. 2(a) (1961), connotes an extended declaration. Under this
reading, Harris' entire confession-even if it contains both
self-inculpatory and non-self-inculpatory parts-would be admissible
so long as in the aggregate the confession sufficiently inculpates
him. Another meaning of "statement," "a single declaration or
remark," ibid., defn. 2(b), would make Rule 804(b)(3) cover only
those declarations or remarks within the confession that are
individually self-inculpatory. See also id., at 131 (defining
"assertion" as a "declaration"); id., at 586 (defining
"declaration" as a "statement").
Although the text of the Rule does not directly resolve the
matter, the principle behind the Rule, so far as it is discernible
from the text, points clearly to the narrower reading. Rule
804(b)(3) is founded on the commonsense notion that reasonable
people, even reasonable people who are not especially honest, tend
not to make self-inculpatory statements unless they believe them to
be true. This notion simply does not extend to the broader
definition of "statement." The fact that a person is making a
broadly self-inculpatory confession does not make more credible the
confession's nonself-inculpatory parts. One of the most effective
ways to lie
600
is to mix falsehood with truth, especially truth that seems
particularly persuasive because of its self-inculpatory nature.
In this respect, it is telling that the non-self-inculpatory
things Harris said in his first statement actually proved to be
false, as Harris himself admitted during the second interrogation.
And when part of the confession is actually selfexculpatory, the
generalization on which Rule 804(b)(3) is founded becomes even less
applicable. Self-exculpatory statements are exactly the ones which
people are most likely to make even when they are false; and mere
proximity to other, self-inculpatory, statements does not increase
the plausibility of the self-exculpatory statements.
We therefore cannot agree with JUSTICE KENNEDY'S suggestion that
the Rule can be read as expressing a policy that collateral
statements-even ones that are not in any way against the
declarant's interest-are admissible,
post, at 614. Nothing
in the text of Rule 804(b)(3) or the general theory of the 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,
post, at 617-619 (KENNEDY,
J., concurring in judgment), should be treated any differently from
other hearsay statements that are generally excluded.
Congress certainly could, subject to the constraints of the
Confrontation Clause, make statements admissible based on their
proximity to self-inculpatory statements. But we will not lightly
assume that the ambiguous language means anything so inconsistent
with the Rule's underlying theory. See
Cooter &
Gell v.
Hartmarx Corp., 496 U. S. 384, 394-395,
408-409 (1990). In our view, the most faithful reading of Rule
804(b)(3) is that it does not allow admission of
non-selfinculpatory statements, even if they are made within a
601
broader narrative that is generally self-inculpatory. The
district court may not just assume for purposes of Rule 804(b)(3)
that a statement is self-inculpatory because it is part of a fuller
confession, and this is especially true when the statement
implicates someone else. "[T]he arrest statements of a codefendant
have traditionally been viewed with special suspicion. Due to his
strong motivation to implicate the defendant and to exonerate
himself, a codefendant's statements about what the defendant said
or did are less credible than ordinary hearsay evidence."
Lee v.
Illinois, 476 U. S. 530, 541 (1986)
(internal quotation marks omitted); see also
Bruton v.
United States, 391 U. S. 123, 136
(1968);
Dutton v.
Evans, 400 U. S. 74, 98 (1970)
(Harlan, J., concurring in result).
JUSTICE KENNEDY suggests that the Advisory Committee's Notes to
Rule 804(b)(3) should be read as endorsing the position we
reject-that an entire narrative, including non-self-inculpatory
parts (but excluding the clearly selfserving parts,
post, at
620), may be admissible if it is in the aggregate self-inculpatory.
See
post, at 614-615. The Notes read, in relevant part:
"[T]he third-party confession ... may include statements
implicating [the accused], and under the general theory of
declarations against interest they would be admissible as related
statements .... [Douglas v. Alabama, 380 U. S. 415 (1965), and
Bruton v. United States, 391 U. S. 123 (1968),] ...
by no means require that all statements implicating another person
be excluded from the category of declarations against interest.
Whether a statement is in fact against interest must be determined
from the circumstances of each case. Thus a statement admitting
guilt and implicating another person, made while in custody, may
well be motivated by a desire to curry favor with the authorities
and hence fail to qualify as against interest .... On the other
hand, the same
602
words spoken under different circumstances,
e. g., to an
acquaintance, would have no difficulty in qualifying ....
"The balancing of self-serving against dissenting [sic] aspects
of a declaration is discussed in McCormick § 256." 28 U. S. C.
App., p. 790.
This language, however, is not particularly clear, and some of
it-especially the Advisory Committee's endorsement of the position
taken by Dean McCormick's treatise-points the other way:
"A certain latitude as to contextual statements, neutral as to
interest, giving meaning to the declaration against interest seems
defensible, but bringing in self-serving statements contextually
seems questionable.
" ... [A]dmit[ting] the disserving parts of the declaration, and
exclud[ing] the self-serving parts ... seems the most realistic
method of adjusting admissibility to trustworthiness, where the
serving and disserving parts can be severed." See C. McCormick, Law
of Evidence § 256, pp. 552-553 (1954) (footnotes omitted).
Without deciding exactly how much weight to give the Notes in
this particular situation, compare
Schiavone v.
Fortune, 477 U.
S. 21, 31 (1986) (Notes are to be given some weight), with
Green v.
Bock Laundry Machine Co., 490 U. S. 504, 528 (1989)
(SCALIA, J., concurring in judgment) (Notes ought to be given no
weight), we conclude that the policy expressed in the Rule's text
points clearly enough in one direction that it outweighs whatever
force the Notes may have. And though JUSTICE KENNEDY believes that
the text can fairly be read as expressing a policy of admitting
collateral statements,
post, at 614, for the reasons given
above we disagree.
B
We also do not share JUSTICE KENNEDY'S fears that our reading of
the Rule "eviscerate[s] the against penal interest
603
exception,"
post, at 616 (internal quotation marks
omitted), or makes it lack "meaningful effect,"
ibid. There
are many circumstances in which Rule 804(b)(3) does allow the
admission of statements that inculpate a criminal defendant. Even
the confessions of arrested accomplices may be admissible if they
are truly self-inculpatory, rather than merely attempts to shift
blame or curry favor.
For instance, a declarant's squarely self-inculpatory
confession-"yes, I killed X"-will likely be admissible under Rule
804(b)(3) against accomplices of his who are being tried under a
co-conspirator liability theory. See
Pinkerton v.
United
States, 328 U. S.
640, 647 (1946). Likewise, by showing that the declarant knew
something, a self-inculpatory statement can in some situations help
the jury infer that his confederates knew it as well. And when seen
with other evidence, an accomplice's self-inculpatory statement can
inculpate the defendant directly: "I was robbing the bank on Friday
morning," coupled with someone's testimony that the declarant and
the defendant drove off together Friday morning, is evidence that
the defendant also participated in the robbery.
Moreover, whether a statement is self-inculpatory or not can
only be determined by viewing it in context. Even statements that
are on their face neutral may actually be against the declarant's
interest. "I hid the gun in Joe's apartment" may not be a
confession of a crime; but if it is likely to help the police find
the murder weapon, then it is certainly self-inculpatory. "Sam and
I went to Joe's house" might be against the declarant's interest if
a reasonable person in the declarant's shoes would realize that
being linked to Joe and Sam would implicate the declarant in Joe
and Sam's conspiracy. And other statements that give the police
significant details about the crime may also, depending on the
situation, be against the declarant's interest. The question under
Rule 804(b)(3) is always whether the statement was sufficiently
against the declarant's penal interest "that a rea-
604
Opinion of O'CONNOR, J.
sonable person in the declarant's position would not have made
the statement unless believing it to be true," and this question
can only be answered in light of all the surrounding circumstances.
*
C
In this case, however, we cannot conclude that all that Harris
said was properly admitted. Some of Harris' confession would
clearly have been admissible under Rule 804(b)(3); for instance,
when he said he knew there was cocaine in the suitcase, he
essentially forfeited his only possible defense to a charge of
cocaine possession, lack of knowledge. But other parts of his
confession, especially the parts that implicated Williamson, did
little to subject Harris himself to criminal liability. A
reasonable person in Harris' position might even think that
implicating someone else would decrease his practical exposure to
criminal liability, at least so far as sentencing goes. Small fish
in a big conspiracy often get shorter sentences than people who are
running the whole show, see,
e. g., United States Sentencing
Commission, Guidelines Manual § 3B1.2 (Nov. 1993), especially if
the small fish are willing to help the authorities catch the big
ones, see,
Nothing in the record shows that the District Court or the Court
of Appeals inquired whether each of the statements in Harris'
confession was truly self-inculpatory. As we explained above, this
can be a fact-intensive inquiry, which would require careful
examination of all the circumstances surrounding the criminal
activity involved; we therefore remand to the Court of Appeals to
conduct this inquiry in the first instance.
*Of course, an accomplice's statements may also be admissible
under other provisions of Rules 801-804. For instance, statements
made in furtherance of the conspiracy may be admissible under Rule
801(d)(2)(E), and other statements that bear circumstantial
guarantees of trustworthiness may be admissible under Rule
804(b)(5), the catchall hearsay exception.
605
In light of this disposition, we need not address Williamson's
claim that the statements were also made inadmissible by the
Confrontation Clause, see generally
White v.
Illinois, 502
U. S. 346 (1992), and in particular we need not decide whether
the hearsay exception for declarations against interest is "firmly
rooted" for Confrontation Clause purposes. Compare,
e. g.,
United States v.
Seeley, 892 F.2d
1, 2 (CA1 1989) (holding that the exception is firmly rooted),
with
United States v.
Flores, 985
F.2d 770 (CA5 1993) (holding the contrary). We note, however,
that the very fact that a statement is genuinely
self-inculpatory-which our reading of Rule 804(b)(3) requires-is
itself one of the "particularized guarantees of trustworthiness"
that makes a statement admissible under the Confrontation Clause.
See
Lee v.
Illinois, 476 U. S. 530, 543-545
(1986). We also need not decide whether, as some Courts of Appeals
have held, the second sentence of Rule 804(b)(3)-"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" (emphasis ad de d)-also requires that statements
inculpating the accused be supported by corroborating
circumstances. See,
e. g., United States v.
Alvarez,
584 F.2d
694, 701 (CA5 1978);
United States v.
Taggart,
944 F.2d
837, 840 (CAll 1991). The judgment of the Court of Appeals is
vacated, and the case is remanded for further proceedings.
So ordered.
JUSTICE SCALIA, concurring.
I join the Court's opinion, which I do not understand to require
the simplistic view of statements against penal interest that
JUSTICE KENNEDY attributes to it.
When analyzing whether evidence can be admitted under the
statement-against-penal-interest exception to the hearsay rules,
the relevant inquiry must always be, as the text directs, whether
the statement "at the time of its making ...
606
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." Fed. Rule
Evid. 804(b)(3). I quite agree with the Court that a reading of the
term "statement" to connote an extended declaration (and which
would thereby allow both selfinculpatory and non-self-inculpatory
parts of a declaration to be admitted so long as the declaration in
the aggregate was sufficiently inculpatory) is unsupportable. See
ante, at 599-600.
Employing the narrower definition of "statement," so that Rule
804(b)(3) allows admission of only those remarks that are
individually self-inculpatory, does not, as JUSTICE KENNEDY states,
"eviscerate the against penal interest exception."
Post, at
616 (internal quotation marks and citation omitted). A statement
obviously can be self-inculpatory (in the sense of having so much
of a tendency to subject one to criminal liability that a
reasonable person would not make it without believing it to be
true) without consisting of the confession "I committed X element
of crime Y." Consider, for example, a declarant who stated: "On
Friday morning, I went into a gunshop and (lawfully) bought a
particular type of handgun and particular type of ammunition. I
then drove in my 1958 blue Edsel and parked in front of the First
City Bank with the keys in the ignition and the driver's door ajar.
I then went inside, robbed the bank, and shot the security guard."
Although the declarant has not confessed to any element of a crime
in the first two sentences, those statements in context are
obviously against his penal interest, and I have no doubt that a
trial judge could properly admit them.
Moreover, a declarant's statement is not magically transformed
from a statement against penal interest into one that is
inadmissible merely because the declarant names another person or
implicates a possible codefendant. For example, if a lieutenant in
an organized crime operation described the inner workings of an
extortion and protection racket, naming
607
some of the other actors and thereby inculpating himself on
racketeering and/or conspiracy charges, I have no doubt that some
of those remarks could be admitted as statements against penal
interest. Of course, naming another person, if done, for example,
in a context where the declarant is minimizing culpability or
criminal exposure, can bear on whether the statement meets the Rule
804(b)(3) standard. The relevant inquiry, however-and one that is
not furthered by clouding the waters with manufactured categories
such as "collateral neutral" and "collateral self-serving," see,
e. g.,
post, at 612, 618 (KENNEDY, J., concurring in
judgment)must always be whether the particular remark at issue (and
not the extended narrative) meets the standard set forth in the
Rule.
JUSTICE GINSBURG, with whom JUSTICE BLACKMUN, JusTICE STEVENS,
and JUSTICE SOUTER join, concurring in part and concurring in the
judgment.
I join Parts I, II-A, and II-B of the Court's opinion. I agree
with the Court that Federal Rule of Evidence 804(b)(3) excepts from
the general rule that hearsay statements are inadmissible only
"those declarations or remarks within [a narrative] that are
individually self-inculpatory."
Ante, at 599. As the Court
explains, the exception for statements against penal interest "does
not allow admission of non-selfinculpatory statements, even if they
are made within a broader narrative that is generally
self-inculpatory,"
ante, at 600-601; the exception applies
only to statements that are "sufficiently against the declarant's
penal interest 'that a reasonable person in the declarant's
position would not have made the statement unless believing it to
be true.'"
Ante, at 603-604, quoting Fed. Rule Evid.
804(b)(3).
Further, the Court recognizes the untrustworthiness of
statements implicating another person.
Ante, at 601. A
person arrested in incriminating circumstances has a strong
incentive to shift blame or downplay his own role in compari-
608
Opinion of GINSBURG, J.
son with that of others, in hopes of receiving a shorter
sentence and leniency in exchange for cooperation. For this reason,
hearsay accounts of a suspect's statements implicating another
person have been held inadmissible under the Confrontation Clause.
See
Lee v.
Illinois, 476 U. S. 530, 541 (1986)
("when one person accuses another of a crime under circumstances in
which the declarant stands to gain by inculpating another, the
accusation is presumptively suspect and must be subjected to the
scrutiny of cross-examination");
ibid. (" '[T]he arrest
statements of a codefendant have traditionally been viewed with
special suspicion. Due to his strong motivation to implicate the
defendant and to exonerate himself, a codefendant's statements
about what the defendant said or did are less credible than
ordinary hearsay evidence.''') (quoting
Bruton v.
United
States, 391 U. S.
123, 141 (1968) (White, J., dissenting)).
Unlike JUSTICE O'CONNOR, however, I conclude that Reginald
Harris' statements, as recounted by Drug Enforcement Administration
(DEA) Special Agent Donald E. Walton, do not fit, even in part,
within the exception described in Rule 804(b)(3), for Harris'
arguably inculpatory statements are too closely intertwined with
his self-serving declarations to be ranked as trustworthy. Harris
was caught redhanded with 19 kilos of cocaine-enough to subject
even a first-time offender to a minimum of 121/2 years'
imprisonment. See United States Sentencing Commission, Guidelines
Manual § 2D1.1(c) (1993); id., ch. 5, pt. A (sentencing table). He
could have denied knowing the drugs were in the car's trunk, but
that strategy would have brought little prospect of thwarting a
criminal prosecution. He therefore admitted involvement, but did so
in a way that minimized his own role and shifted blame to
petitioner Fredel Williamson (and a Cuban man named Shawn).
Most of Harris' statements to DEA Agent Walton focused on
Williamson's, rather than Harris', conduct. Agent Walton testified
to the following: During a brief telephone con-
609
versation shortly after he was apprehended, Harris said he had
obtained 19 kilos of cocaine for Williamson from a Cuban man in
Fort Lauderdale, Florida; he stated that the cocaine belonged to
Williamson, and was to be delivered to a dumpster in the Atlanta
area that evening. App. 37. Harris repeated this story to Agent
Walton when the two spoke in person later in the day. Harris also
said that he had rented the car a few days earlier and had included
Williamson's name on the rental contract because Williamson was
going to be in the Fort Lauderdale area with him.
Id., at
38-39. After Agent Walton sought to arrange a controlled delivery,
Harris retracted the story about the dumpster, saying it was
false.
Harris' second account differed as to collateral details, but he
continued to paint Williamson as the "big fish." Harris reported
that he was transporting the cocaine to Atlanta for Williamson.
When the police stopped Harris' car, Williamson was driving in
front of him in another rented car. After Harris was stopped,
Williamson turned around and pulled over to the side of the road;
from that vantage point, he observed the police officer inspecting
the contents of Harris' trunk.
Id., at 40-41. And, Harris
repeated, "the arrangements for the acquisition and the
transportation had been made by Mr. Williamson."
Id., at
41.
To the extent some of these statements tended to incriminate
Harris, they provided only marginal or cumulative evidence of his
guilt. They project an image of a person acting not against his
penal interest, but striving mightily to shift principal
responsibility to someone else. See
United States v.
Sarmiento-Perez, 633 F.2d
1092, 1102 (CA5 1981) ("[The declarant] might well have been
motivated to misrepresent the role of others in the criminal
enterprise, and might well have viewed the statement[s] as a
whole-including the ostensibly disserving portions-to be
in
his interest rather than against it.").
610
Opinion of GINSBURG, J.
For these reasons, I would hold that none of Harris' hearsay
statements were admissible under Rule 804(b)(3). * The trial judge
characterized Agent Walton's testimony as "very damning." App. 50.
The prosecutor considered it so prejudicial that she offered to
join defense counsel's motion for a mistrial should the trial court
determine that the hearsay statements had been erroneously
admitted.
Id., at 51 ("If the [trial] Court determines that
it has been improper for [Agent Walton] to say those statements,
then the Court must of necessity declare a mistrial, because there
is no way they can remove what ... they have heard that Reginald
Harris said about Fredel Williamson, and the Government will join
in the [defense counsel's] motion [for a mistrial], because I think
that would be a burden no one could overcome in the 11th
Circuit."). I concur in the Court's decision to vacate the Court of
Appeals' judgment, however, because I have not examined the entire
trial court record; I therefore cannot say the Government should be
denied an opportunity to argue that the erroneous admission of the
hearsay statements, in light of the other evidence introduced at
trial, constituted harmless error. See Fed. Rule Crim. Proc. 52(a);
Kotteakos v.
United States, 328 U. S. 750, 776 (1946)
(error requires reversal of criminal conviction if it is "highly
probable that the error had substantial
*Nor could any of Harris' hearsay statements be admitted under
Rule 801(d)(2)(E), which provides that statements made "by a
coconspirator of a party during the course and in furtherance of
the conspiracy" are not hearsay. The trial judge initially appeared
to base his ruling admitting the statements on the co-conspirator
rule. See App. 34-36; id., at 47 ("I let it in as a co-conspirator
statement."). The prosecutor, however, "agree[d] with [defense
counsel] totally" that "[they are] not ... statementEs] in
furtherance of the conspiracy"; Agent Walton's testimony, she
explained, was "not offered under [the co-conspirator] exception,"
but under Rule 804(b)(3). App. 47. I do not read the Court's
opinion,
ante, at 604, n., to suggest that the hearsay
statements
in this case could have been admitted under Rule
801(d)(2)(E).
611
and injurious effect or influence in determining the jury's
verdict").
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE THOMAS
join, concurring in the judgment.
I
Federal Rule of Evidence 802 states the general rule that
hearsay evidence is inadmissible in federal court proceedings, but
there are numerous exceptions. At issue here is the exception
contained in Rule 804(b)(3), which allows admission of
"[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."
The rationale of the hearsay exception for statements against
interest is that people seldom "make statements which are damaging
to themselves unless satisfied for good reason that they are true."
Advisory Committee's Notes on Fed. Rule Evid. 804, 28 U. S. C.
App., p. 789. Of course, the declarant may make his statement
against interest (such as "I shot the bank teller") together with
collateral but related declarations (such as "John Doe drove the
getaway car"). The admissibility of those collateral statements
under Rule 804(b)(3) is the issue we must decide here.
There has been a long-running debate among commentators over the
admissibility of collateral statements. Dean Wigmore took the
strongest position in favor of admissibility,
612
KENNEDY, J., concurring in judgment
arguing that "the statement may be accepted, not merely as to
the specific fact against interest, but also as to every fact
contained in the same statement." 5 J. Wigmore, Evidence § 1465, p.
271 (3d ed. 1940) (emphasis deleted); see also 5 J. Wigmore,
Evidence § 1465, p. 339 (J. Chadbourne rev. 1974); Higham v.
Ridgway, 10 East. 109, 103 Eng. Rep. 717 (K. B. 1808). According to
Wigmore, because "the statement is made under circumstances fairly
indicating the declarant's sincerity and accuracy," the entire
statement should be admitted. 5 J. Wigmore § 1465, p. 271 (3d ed.
1940). Dean McCormick's approach regarding collateral statements
was more guarded. He argued for the admissibility of collateral
statements of a neutral character, and for the exclusion of
collateral statements of a self-serving character. For example, in
the statement "John and I robbed the bank," the words "John and"
are neutral (save for the possibility of conspiracy charges). On
the other hand, the statement "John, not I, shot the bank teller"
is to some extent self-serving and therefore might be inadmissible.
See C. McCormick, Law of Evidence § 256, pp. 552-553 (1954)
(hereinafter McCormick). Professor Jefferson took the narrowest
approach, arguing that the reliability of a statement against
interest stems only from the disserving fact stated and so should
be confined "to the proof of the fact which is against interest."
Jefferson, Declarations Against Interest: An Exception to the
Hearsay Rule, 58 Harv. L. Rev. 1,62-63 (1944). Under the Jefferson
approach, neither collateral neutral nor collateral selfserving
statements would be admissible.
Enacted by Congress in 1975, Rule 804(b)(3) establishes a
hearsay exception for statements against penal, proprietary,
pecuniary, and legal interest (and does not distinguish among those
interests). The text of the Rule does not tell us whether
collateral statements are admissible, however. See
ante, at
599; see also Comment, Federal Rule of Evidence 804(b)(3) and
Inculpatory Statements Against Penal Interest, 66 Calif. L. Rev.
1189, 1202 (1978) ("The text of Rule
613
804(b)(3) by itself provides little guidance and would
accommodate comfortably either a doctrine excluding or one
admitting collateral statements"). The Court resolves the issue, as
I understand its opinion, by adopting the extreme position that no
collateral statements are admissible under Rule 804(b)(3). See
ante, at 599 (adopting "narrower reading" that "Rule
804(b)(3) cover[s] only those declarations or remarks within the
confession that are individually selfinculpatory");
ante, at
607 (GINSBURG, J., concurring in part and concurring in judgment);
but cf.
ante, p. 605 (SCALIA, J., concurring). The Court
reaches that conclusion by relying on the "principle behind the
Rule" that reasonable people do not make statements against their
interest unless they are telling the truth,
ante, at 599,
and reasons that this policy "expressed in the Rule's text,"
ante, at 602, "simply does not extend" to collateral
statements,
ante, at 599. Though conceding that Congress can
"make statements admissible based on their proximity to
self-inculpatory statements," the Court says that it cannot
"lightly assume that the ambiguous language means anything so
inconsistent with the Rule's underlying theory."
Ante, at
600.
With respect, I must disagree with this analysis. All agree that
the justification for admission of hearsay statements against
interest was, as it still is, that reasonable people do not make
those statements unless believing them to be true, but that has not
resolved the long-running debate over the admissibility of
collateral statements, as to which there is no clear consensus in
the authorities. Indeed, to the extent the authorities come close
to any consensus, they support admission of some collateral
statements. See
supra, at 611-612. Given that the underlying
principle for the hearsay exception has not resolved the debate
over collateral statements one way or the other, I submit that we
should not assume that the text of Rule 804(b)(3), which is silent
about collateral statements, in fact incorporates one of the
competing positions. The Rule's silence no more incor-
614
KENNEDY, J., concurring in judgment
porates Jefferson's position respecting collateral statements
than it does McCormick's or Wigmore's.
II
Because the text of Rule 804(b)(3) expresses no position
regarding the admissibility of collateral statements, we must
determine whether there are other authoritative guides on the
question. In my view, three sources demonstrate that Rule 804(b)(3)
allows the admission of some collateral statements: the Advisory
Committee's Note, the common law of the hearsay exception for
statements against interest, and the general presumption that
Congress does not enact statutes that have almost no effect.
First, the Advisory Committee's Note establishes that some
collateral statements are admissible. In fact, it refers in
specific terms to the issue we here confront: "Ordinarily 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." 28 U. S. C. App., p. 790. This language seems
a forthright statement that collateral statements are admissible
under Rule 804(b)(3), but the Court reasons that "the policy
expressed in the Rule's text points clearly enough in one direction
that it outweighs whatever force the Notes may have."
Ante,
at 602. Again, however, that reasoning begs the question: What is
the policy expressed in the text on the admissibility of collateral
statements? As stated above, the text of the Rule does not answer
the question whether collateral statements are admissible. When as
here the text of a Rule of Evidence does not answer a question that
must be answered in order to apply the Rule, and when the Advisory
Committee's Note does answer the question, our practice indicates
that we should pay attention to the Advisory Committee's Note. We
have referred often to those Notes in in-
615
terpreting the Rules of Evidence, and I see no reason to
jettison that well-established practice here. See
Huddleston
v.
United States, 485 U. S. 681, 688
(1988);
United States v.
Owens, 484 U. S. 554, 562
(1988);
Bourjaily v.
United States, 483 U. S. 171, 179, n. 2
(1987);
United States v.
Abel, 469 U. S. 45, 51
(1984).
Second, even if the Advisory Committee's Note were silent about
collateral statements, I would not adopt a rule excluding all
statements collateral or related to the specific words against
penal interest. Absent contrary indications, we can presume that
Congress intended the principles and terms used in the Federal
Rules of Evidence to be applied as they were at common law. See
Daubert v.
Merrell Dow Pharmaceuticals, Inc.,
509 U. S. 579,
588 (1993);
Green v.
Bock Laundry Machine Co.,
490 U. S. 504,
521-522 (1989);
United States v.
Abel, supra, at
51-52; see also
Midlantic Nat. Bank v.
New Jersey Dept.
of Environmental Protection, 474 U. S. 494, 501 (1986)
("[I]f Congress intends for legislation to change the
interpretation of a judicially created concept, it makes that
intent specific"). Application of that interpretive principle
indicates that collateral statements should be admissible. "From
the very beginning of this exception, it has been held that a
declaration against interest is admissible, not only to prove the
disserving fact stated, but also to prove other facts contained in
collateral statements connected with the disserving statement."
Jefferson, 58 Harv. L. Rev., at 57; see also McCormick § 256; 5 J.
Wigmore, Evidence § 1465 (3d ed. 1940). Indeed, the Advisory
Committee's Note itself, in stating that collateral statements
would be admissible, referred to the "general theory" that related
statements are admissible, an indication of the state of the law at
the time the Rule was enacted. Rule 804(b)(3) does not address the
issue, but Congress legislated against the common-law background
allowing admission of some collateral statements, and I would not
assume that Congress gave the common-law rule a silent burial in
Rule 804(b)(3).
616
KENNEDY, J., concurring in judgment
There is yet a third reason weighing against the Court's
interpretation, one specific to statements against penal interest
that inculpate the accused. There is no dispute that the text of
Rule 804(b)(3) contemplates the admission of those particular
statements. Absent a textual direction to the contrary, therefore,
we should assume that Congress intended the penal interest
exception for inculpatory statements to have some meaningful
effect. See
American Paper Institute, Inc. v.
American
Elec. Power Service Corp., 461 U. S. 402, 421 (1983)
(court should not "imput[e] to Congress a purpose to paralyze with
one hand what it sought to promote with the other") (internal
quotation marks omitted). That counsels against adopting a rule
excluding collateral statements. As commentators have recognized,
"the exclusion of collateral statements would cause the exclusion
of almost all inculpatory statements." Comment, 66 Calif. L. Rev.,
at 1207; see also Note, Inculpatory Statements Against Penal
Interest and the Confrontation Clause, 83 Colum. L. Rev. 159, 163
(1983) ("[M]ost statements inculpating a defendant are only
collateral to the portion of the declarant's statement that is
against his own penal interest. The portion of the statement that
specifically implicates the defendant is rarely directly counter to
the declarant's penal interest") (footnote omitted); Davenport, The
Confrontation Clause and the Co-Conspirator Exception in Criminal
Prosecutions: A Functional Analysis, 85 Harv. L. Rev. 1378, 1396
(1972) ("[T]he naming of another as a compatriot will almost never
be against the declarant's own interest"). Indeed, as one
commentator indicated, the conclusion that no collateral statements
are admissible-the conclusion reached by the Court today-would
"eviscerate the against penal interest exception." Comment, 66
Calif. L. Rev., at 1213.
To be sure, under the approach adopted by the Court, there are
some situations where the Rule would still apply. For example, if
the declarant said that he stole certain goods, the statement could
be admitted in a prosecution of the ac-
617
cused for receipt of stolen goods in order to show that the
goods were stolen. See 4 J. Weinstein & M. Berger, Weinstein's
Evidence §804(b)(3)[04], p. 804-164 (1993); see also
ante,
at 603. But as the commentators have recognized, it is likely to be
the rare case where the precise selfinculpatory words of the
declarant, without more, also inculpate the defendant. I would not
presume that Congress intended the penal interest exception to the
Rule to have so little effect with respect to statements that
inculpate the accused.
I note finally that the Court's decision applies to statements
against penal interest that exculpate the accused as well as to
those that inculpate the accused. Thus, if the declarant said, "I
robbed the store alone," only the portion of the statement in which
the declarant said "I robbed the store" could be introduced by a
criminal defendant on trial for the robbery. See Note, Declarations
Against Penal Interest: Standards of Admissibility Under an
Emerging Majority Rule, 56 B. U. L. Rev. 148, 165, n. 95 (1976).
That seems extraordinary. The Court gives no justification for such
a rule and no explanation that Congress intended the exception for
exculpatory statements to have this limited effect. See id., at 166
("A strict application of a rule excluding all collateral
statements can lead to the arbitrary rejection of valuable
evidence").
III
Though I would conclude that Rule 804(b)(3) allows admission of
statements collateral to the precise words against interest, that
conclusion of course does not answer the remaining question whether
all collateral statements related to the statement against interest
are admissible; and if not, what limiting principles should apply.
The Advisory Committee's Note suggests that not all collateral
statements are admissible. The Note refers, for example, to
McCormick's treatise, not to Wigmore's, for guidance as to the
"balancing of selfserving against dis[serving] aspects of a
declaration." 28
618
KENNEDY, J., concurring in judgment
u. S. C. App., p. 790. As noted
supra, at 611-612,
Wigmore's approach would allow the admission of "every fact
contained in the same statement," but McCormick's approach is not
so expansive. McCormick stated that "[a] certain latitude as to
contextual [i.
e., collateral] statements, neutral as to
interest, giving meaning to the declaration against interest seems
defensible, but bringing in self-serving statements contextually
seems questionable." McCormick § 256, p. 552. McCormick further
stated that, within a declaration containing self-serving and
disserving facts, he would "admit the disserving parts of the
declaration, and exclude the self-serving parts" at least "where
the serving and disserving parts can be severed."
Id., §
256, at 553. It thus appears that the Advisory Committee's Note, by
its reference to (and apparent incorporation of) McCormick,
contemplates exclusion of a collateral self-serving statement, but
admission of a collateral neutral statement.
In the criminal context, a self-serving statement is one that
tends to reduce the charges or mitigate the punishment for which
the declarant might be liable. See M. Graham, Federal Practice and
Procedure § 6795, p. 810, n. 10 (1992). For example, if two masked
gunmen robbed a bank and one of them shot and killed the bank
teller, a statement by one robber that the other robber was the
triggerman may be the kind of self-serving statement that should be
inadmissible. See ibid. (collateral self-serving statement is "John
used the gun"). (The Government concedes that such a statement may
be inadmissible. See Brief for United States 12.) By contrast, when
two or more people are capable of committing a crime and the
declarant simply names the involved parties, that statement often
is considered neutral, not self-serving. See Graham,
supra,
at 810, n. 10 ("[T]he statement 'John and I robbed the bank' is
collateral neutral"); Note, 56 B. U. L. Rev., at 166, n. 96 ("An
examination of the decisions reveals that, with very few
exceptions, collateral facts offered as part of a declaration
against penal interest are neutral rather
619
than self-serving"); see generally
United States v.
York, 933 F. 2d 1343, 1362-1364 (CA7 1991);
United
States v.
Casamento, 887 F.2d
1141, 1171 (CA2 1989).
Apart from that limit on the admission of collateral,
selfserving statements, there is a separate limit applicable to
cases in which the declarant made his statement to authorities;
this limit applies not only to collateral statements but also to
the precise words against penal interest. A declarant may believe
that a statement of guilt to authorities is in his interest to some
extent, for example as a way to obtain more lenient treatment, or
simply to clear his conscience. The Note takes account of that
potentiality and states that courts should examine the
circumstances of the statement to determine whether the statement
was "motivated by a desire to curry favor with the authorities." 28
U. S. C. App., p. 790. That appears consistent with McCormick's
recognition that "even though a declaration may be against interest
in one respect, if it appears that the declarant had some other
motive whether of self-interest or otherwise, which was likely to
lead him to misrepresent the facts, the declaration will be
excluded." McCormick § 256, p. 553.
Of course, because the declarant is by definition unavailable,
see Fed. Rule Evid. 804(a), and therefore cannot be questioned to
determine the exact motivation for his statement, courts have been
forced to devise categories to determine when this concern is
sufficient to justify exclusion of a statement as unreliable. It
has been held, for example, that a statement to authorities
admitting guilt, made after an explicit promise of dropped charges
or of a reduction in prison time in exchange for the admission of
guilt, may be so unreliable as to be inadmissible. See,
e. g.,
United States v.
Magana-Olvera, 917
F.2d 401, 407-409 (CA9 1990);
United States v.
Scopo, 861 F.2d
339, 348 (CA2 1988) ("If ... a pleading defendant had an
agreement with the government or with the court that he would not
be punished for the crimes to which he allocuted, then that
allocution would not
620
KENNEDY, J., concurring in judgment
subject him to criminal liability and would not constitute a
statement against his penal interest"). At the other extreme, when
there was no promise of leniency by the government and the
declarant was told that he had a right to remain silent and that
any statements he made could be used against him, the courts have
not required exclusion of the declarant's statement against
interest. See
id., at 348-349;
United States v.
Garcia, 897 F.2d
1413, 1421 (CA7 1990) (declarant not motivated by desire to
curry favor; "voluntarily made his statement after being advised of
his
Miranda rights and did not enter into any plea
agreements with the government"). This kind of line-drawing is
appropriate and necessary, lest the limiting principle regarding
the declarant's possible desire to obtain leniency lead to the
exclusion of all statements against penal interest made to police,
a result the Rule and Note do not contemplate.
In sum, I would adhere to the following approach with respect to
statements against penal interest that inculpate the accused. A
court first should determine whether the declarant made a statement
that contained a fact against penal interest. See
ante, at
604 (opinion of O'CONNOR, J.) ("Some of Harris' confession would
clearly have been admissible under Rule 804(b)(3)"). If so, the
court should admit all statements related to the precise statement
against penal interest, subject to two limits. Consistent with the
Advisory Committee's Note, the court should exclude a collateral
statement that is so self-serving as to render it unreliable (if,
for example, it shifts blame to someone else for a crime the
defendant could have committed). In addition, in cases where the
statement was made under circumstances where it is likely that the
declarant had a significant motivation to obtain favorable
treatment, as when the government made an explicit offer of
leniency in exchange for the declarant's admission of guilt, the
entire statement should be inadmissible.
621
A ruling on the admissibility of evidence under Rule 804(b)(3)
is a preliminary question to be determined by the district judge
under Rule l04(a). That determination of necessity calls for an
inquiry that depends to a large extent on the circumstances of a
particular case. For this reason, application of the general
principles here outlined to a particular narrative statement often
will require a difficult, factbound determination. District judges,
who are close to the facts and far better able to evaluate the
various circumstances than an appellate court, therefore must be
given wide discretion to examine a particular statement to
determine whether all or part of it should be admitted. Like the
Court, then, I would remand this case, but for application of the
analysis set forth in this opinion.
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