Williamson v. United States – Oral Argument – April 25, 1994

Media for Williamson v. United States

Audio Transcription for Opinion Announcement – June 27, 1994 in Williamson v. United States

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William H. Rehnquist:

We’ll hear argument next in Number 93-5256, Fredel Williamson v. The United States.

Mr. Waxman.

Benjamin S. Waxman:

Mr. Chief Justice and may it please the Court:

This case calls upon this Court to make clear what it has indicated in every case on this issue in the past 30 years, and that is that a postarrest statement of an uncross-examined alleged accomplice, made in the throngs of custodial interrogation, which implicates a defendant, is inadmissible.

This Court has repeatedly recognized the inherent and unique untrustworthiness of these statements.

They are made in the coercive atmosphere of police interrogation.

They are made under circumstances when the declarant has every motive to speak without regard to the truth.

These are desperate people in desperate times.

People that are arrested, their lives pass before their eyes, and they were motivated to speak in order to curry favor, in order to assist their own situation, and for the same reason that is why they attempt to shift blame to someone else, to put the light on a different person, and to divert the attention from themselves.

The Government in this case recognized the inadmissibility of these statements, of Harris’ statements, when it took the extraordinary measure of moving to sever Harris, the declarant in this case, from Williamson, the defendant.

William H. Rehnquist:

The declarant is what you’re–

Benjamin S. Waxman:

Harris, which was the person whose statement we’re concerned with.

William H. Rehnquist:

–You pronounced it declarant.

Benjamin S. Waxman:

The declarant.

William H. Rehnquist:

Well, just so I understand what you’re talking about.

Benjamin S. Waxman:

I’m sorry.

Harris’ statements in this case graphically demonstrate the validity of this presumption that this Court has repeatedly recognized, and why today this Court should make these statements categorically inadmissible.

He was explained… in custody he was told that he would be advised what benefit he would receive for making statements, cooperative statements.

He knew that the thing he needed to do was to finger someone else.

That’s what he could do to relieve the burden that was placed on him at this moment.

That’s something that everyone his shoes knows they need to do in order to get out from under the criminal justice system at that time.

They don’t need to be promised.

They know it instinctively.

The mere suggestion in this case that some benefit might inure if he cooperated was enough to effect his state of mind so that he would speak, regardless of the truth of what he said.

Sandra Day O’Connor:

But the declarant did admit his own criminal liability, at least to something in this area.

Benjamin S. Waxman:

He admitted very minimally that he was a courier, that he was someone who was following directions, he was a mule.

Sandra Day O’Connor:

He was found in position, and he knew what it was, and he was transporting it, so that would be enough to convict the declarant of several offenses, I–

Benjamin S. Waxman:

That’s correct, and even without his statements the courts have sustained conviction after conviction based on an individual’s presence in a vehicle under these statements without even the incriminating statements.

Sandra Day O’Connor:

–Were there conspiracy charges brought against the two defendants?

Benjamin S. Waxman:

There was a conspiracy charge.

William H. Rehnquist:

Well, are you saying this entire class of statements can’t be admitted, Mr. Waxman?

The Government seems to argue that it is a case-by-case analysis under our decision in Lee and cases like that.

Are you saying that there is a broad exclusionary principle, and if so, what is it?

Benjamin S. Waxman:

The broad exclusionary principle would be that these types of statements… in other words, statements of uncross-examined, alleged accomplices such as Harris, which are made in the throngs of custodial interrogation which implicate in a self-serving way a defendant such as Williamson, should categorically be excluded.

William H. Rehnquist:

Well, you put so many qualifications on it, though, that it’s hard to know how general your principle is.

All of this is technically hearsay, I take it.

These are people who don’t testify at trial, and you’re trying to get it in as an exception to the hearsay rule, and traditionally the declaration against penal interest is contended by the Government, I think with some reason, that it’s a well-established exception to the hearsay, rooted in history.

Do you disagree with that?

Benjamin S. Waxman:

We do disagree with that, but I think the focus of this Court should be on this peculiar narrow category of statements that falls within the general category, and this is what the Court discussed in Lee.

William H. Rehnquist:

Well–

–So… you’re not arguing here that the declaration against penal interest is not a firmly rooted principle of hearsay?

Benjamin S. Waxman:

I believe that it is, but I don’t believe the Court needs to get to that issue.

Sandra Day O’Connor:

In Lee, and in a subsequent case coming out of New Mexico, didn’t we really describe a presumption against admitting the evidence, rather than making it a categorical rule?

Benjamin S. Waxman:

That’s correct.

Sandra Day O’Connor:

And do you… can you prevail here only if the Court adopts a categorical rule?

Benjamin S. Waxman:

No.

I think under… certainly under the facts of our case, the statement failed to not only meet the requirements of the rule, 804(b)(3), they certainly failed to meet the requirements of the Confrontation Clause, and we should indeed prevail, but I–

Sandra Day O’Connor:

But you don’t want us to just stick by Lee and the other cases that we’ve decided.

You want something more.

Benjamin S. Waxman:

–I think in… today, with 30 years of experience of these types of statements, and seeing the validity of the presumption and, indeed, that these statements are categorically, inherently, and uniquely untrustworthy… any person in this position instinctively will seek to curry favor and to lay blame elsewhere.

Sandra Day O’Connor:

Why shouldn’t… as a matter of general principle, why shouldn’t we leave it to the jury to figure this out and maybe give them some instructions?

Benjamin S. Waxman:

Because the jury was never presented with the facts and the circumstances to be able to fairly evaluate this statement.

That’s precisely the problem.

By denying the defendant the ability to cross-examine the declarant, in this case Harris, the defendant was unable to show why Harris was motivated to falsely implicate Williamson.

The jury was… this evidence was kept from the jury, and the judge could only speculate on the state of mind of Harris and why he would make a statement implicating Williamson.

William H. Rehnquist:

Well, you’re giving us a lot of facts here about why Harris’ declaration wasn’t trustworthy.

Couldn’t those have been brought to the attention of the jury?

Benjamin S. Waxman:

Some of them could be.

For instance, certainly the jury was made aware that the agents advised him that any cooperation he gave would be reported to the prosecutor, but do we know that that’s really what happened in this circumstance?

Don’t we really need Harris to find out whether a firm promise had been made, or what impact that statement had on his mind, and how it motivated him to make this statement?

William H. Rehnquist:

Well, you’ve certainly got the ability to bring some of the facts before the jury, as you indicate.

You don’t have the opportunity to cross-examine Harris, and that’s what hearsay exceptions are all about.

Benjamin S. Waxman:

That’s correct, but under this set of circumstances, we’re presented with a situation that in every case is going to bring before the Court statements that are inherently untrustworthy.

Ruth Bader Ginsburg:

What about… is it untrustworthy to the extent that they incriminated Harris himself?

How about letting in that much of his statement?

Benjamin S. Waxman:

I think that that’s a way that the Court could go.

That was the mode of analysis that Chief Justice Cavanaugh took in Michigan, recognizing that, while a statement implicating the declarant… the declarant, excuse me… Harris in this case, may indeed satisfy the requirements of the rule.

The portion of the statement that incriminates Williamson was not against his penal interest, but indeed was self-serving.

That was the most and the best kind of statement that Harris could make at that time to serve his own selfish interests, and so the Court could certainly allow statements such as those that Harris made which incriminated himself, while excluding statements, collateral statements which incriminate third parties, which is–

Ruth Bader Ginsburg:

On the ground that those are not against Harris’ penal interest–

Benjamin S. Waxman:

–Correct, and indeed–

Ruth Bader Ginsburg:

–and on the contrary they tend to make him a lesser actor in this criminal affair.

Benjamin S. Waxman:

–Correct, and particularly on the facts of this case.

Again, we have Harris saying that he was a mere courier.

He was following the directions of another.

Williamson, he claims, was the principal.

He was the one who procured the cocaine, who arranged for it to be transported and was ultimately going to be the recipient.

He laid the bulk of the blame on Williamson, and we’re left to speculate why, and the reason is, is because he had every incentive to lay the blame on someone else, and Williamson was denied the ability to probe his mind, his state of existence, and why he made these kinds of statements.

David H. Souter:

What would your rule be if the statement which inculpated the defendant also included admissions against the declarant which went beyond anything the police might have known at that point?

Would your broad principle apply then?

Benjamin S. Waxman:

I think the broad principle, and the primary factor, is that we are in the context of custodial interrogation, a context that this Court has recognized in numerous cases is fraught with the possibility of coercion, is fraught with the concern of what the state–

David H. Souter:

Well, if we’re worried about that, we won’t let anything in.

I mean, the argument for keeping out the statement or the portion of the statement that you object to is that it’s too much in the declarant’s interest to make it, and to make it falsely, but if that is in fact part of the… if that occurs in a context in which the declarant is also making it worse for himself by admitting more than the police would have had against him at that point, doesn’t that lend a note of probity to the statement, and therefore shouldn’t your broad principle of exclusion fall in that case?

Benjamin S. Waxman:

–I would urge that the Court should adopt a broad principle that would be protective of circumstances such as this, where the danger that the statement may be not true and untrustworthy is great enough that we may indeed have–

David H. Souter:

But the danger is less… I take it you would agree the danger is less in the case that I put.

Benjamin S. Waxman:

–Absolutely.

For instance, I think Lee is a case much more similar to yours, where the arrested person whose statement we were concerned with specifically admitted that they had murdered Aunt Beattie.

They had committed one of the murders.

Here, very differently, we’ve got someone minimizing their role and maximizing the role of the person who is not present, who has no opportunity to cross-examine.

I think that there’s definitely a variant which the Court could find would make a statement more reliable in Your Honor’s circumstance.

Benjamin S. Waxman:

There are numerous other facts in our case to demonstrate the untrustworthiness of this statement.

Harris refused to give a written statement, and ultimately refused to make the statement under oath.

He was granted immunity.

The statement could not have been used against him.

The only thing he had to lose by making the statement would have been the potential prosecution for perjury if this statement were false.

He had already implicated Williamson.

He had nothing to lose to testify under oath, but he refused, as he had refused to make a written statement.

He lied to the police.

We know this.

He made three different statements.

The statements were inconsistent.

William H. Rehnquist:

Because he was afraid–

–Can you bring that out to the jury?

Benjamin S. Waxman:

That was brought out to the jury, absolutely.

William H. Rehnquist:

So it’s not as if you can’t bring this to the attention of the factfinder.

Benjamin S. Waxman:

Some of the facts and circumstances can be brought to the attention of the factfinder, but the concern is that they do not get the full flavor that they’re entitled to when dealing with this witness who, whether present or absent, was the most crucial witness in the entire case.

Typically in a criminal case the cross-examination of this type of person is the most riveting moment in the trial.

It is the moment that every person in the Court knows that the freedom and liberty of the defendant depends upon.

If this witness is believed, the defendant will be found guilty, and if this witness is disbelieved, the defendant–

William H. Rehnquist:

Well, did the defendant take the stand here, in this case?

Benjamin S. Waxman:

–No, the defendant did not take the stand.

Sandra Day O’Connor:

Did Harris… was Harris called to testify in front of the jury, and did he take the Fifth in the presence of the jury?

Benjamin S. Waxman:

No.

That whole procedure was done–

Sandra Day O’Connor:

But he could have been?

He could have been brought into the courtroom, sworn, and had the jury see him?

Benjamin S. Waxman:

–I would say… excuse me.

I would say under the case law it would have been rather unethical for the defendant, knowing that Harris had invoked the Fifth, to call him as a witness and to make him–

Sandra Day O’Connor:

I thought that happened all the time, because that’s one of the circumstances the jury can then consider.

I’ve had it happen in courtrooms where I’ve been presiding.

Benjamin S. Waxman:

–It’s always been my understanding as a defense attorney that if I know a particular party is going to invoke the Fifth, then I’m not permitted to call that party and to have them invoke their constitutional rights in front of the jury, and then to argue from that invocation that… you know, inferences about what the person might have said or might not have said.

Ruth Bader Ginsburg:

But here the invocation was before the judge, right?

Benjamin S. Waxman:

Correct.

Ruth Bader Ginsburg:

And the judge offered the witness immunity.

Benjamin S. Waxman:

Correct.

Ruth Bader Ginsburg:

And the witness said no, and then what happened?

Benjamin S. Waxman:

Ultimately, the witness was held in contempt, and that was the end of Harris’ position in court, and at that point the Government went behind its severance motion and put on the agent to testify about what Harris said out of court, not under oath, about what he claims Williamson did.

I would submit that the hearsay in this case in those statements was even worse than that which was brought in against Sir Walter Raleigh in that case in the early 1600’s which is often seen as the genesis of the Confrontation Clause.

This statement was not even under oath.

It was the worst and least-reliable form of hearsay that we–

Sandra Day O’Connor:

Mr. Waxman, what are your best authorities for… under the Federal rule here that the state would invoke?

Tell us how much of this statement should come in.

If it is a declaration against penal interest, what are your best authorities in support of a requirement of redaction, for example?

Benjamin S. Waxman:

–The case that we relied on most heavily would be Flores out of the Fifth Circuit.

That’s at 985 F. 2d.

It’s a 1993 decision in which that court recognized that these statements, again as this Court has repeatedly stated, have unique and inherent indicia of unreliability because they are taken in the throngs of custodial interrogation, and because the arrestee is motivated to speak without regard to the truth.

Sandra Day O’Connor:

It’s sort of surprising that there isn’t more authority for the meaning of the rule in terms of what comes in along with the statement, whether related statements come in, or they don’t, or whether redaction is required.

Benjamin S. Waxman:

Well, quite frankly I think that there has been some confusion under the rule, and the courts have adopted numerous different ways of approaching these issues.

Some courts have found that while these types of statements satisfy the first part of the rule… in other words, the part that says, if the statements so far compromises one’s penal interest, such that a reasonable person would not have made them unless believing them to be true, they’ve said that a statement has satisfied that portion of the rule, but has failed to satisfy the part that most courts have read into it, which is that these statements have to be supported by a particularized showing of guarantees of trustworthiness, so you have cases that have dealt with it in that way.

You have cases that have found, notwithstanding these circumstances similar to the ones presented here, similar to those recognized in Lee, that have said we’re going to hold that these statements satisfy the rule, that they–

Sandra Day O’Connor:

Well, if this statement had been redacted to strike out the name of Williamson, would you be here today?

Benjamin S. Waxman:

–No, nor would the statement have been introduced, because it would have–

Sandra Day O’Connor:

It wouldn’t be relevant–

Benjamin S. Waxman:

–It would have had no–

Sandra Day O’Connor:

–perhaps, or would it?

Would it have been relevant, still?

Benjamin S. Waxman:

–It would have had no relevance in Williamson’s trial.

The only issue there was Williamson’s guilt.

He was not at the scene at the time of the arrest.

He had no involvement in the initial law enforcement efforts whatsoever.

Antonin Scalia:

Well, why wouldn’t it be relevant?

I mean, it seems to me that the State would introduce… the State is trying to say someone else made the arrangements for this cocaine distribution, and it would introduce testimony by the person who had it in the car that, indeed, someone else did, and the State’s trying to prove that someone else is Williamson.

Why, it would certainly he relevant–

Benjamin S. Waxman:

I think Your Honor–

Antonin Scalia:

–so it would get in.

Benjamin S. Waxman:

–I think Your Honor is correct.

There was reference to an unidentified–

Antonin Scalia:

Right.

Benjamin S. Waxman:

–Cuban male at some point in Fort Lauderdale, and it’s true there was a conspiracy charge here.

Antonin Scalia:

Right.

Benjamin S. Waxman:

I take back what I said.

Antonin Scalia:

I think it would get in.

Is all that you’re arguing… are you just arguing before us a question of fact, that rule 804(b)(3) was applied incorrectly?

Benjamin S. Waxman:

I think the Court could find that it was applied incorrectly, and I would be satisfied with a ruling to that extent.

Antonin Scalia:

Why would we want to go beyond that?

I mean, really what you’re saying is that the statement there that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true, what you’re telling us is, there are a lot of reasons why somebody in this position would make it without believing it to be true, therefore 804(b)(3) was not met.

Benjamin S. Waxman:

Because I think what the Court needs to do is to give guidance to the lower courts on how to deal with these type of statements which are often the most strong and possibly the only evidence that the Government has to convict a defendant, and in cases that have been decided by this Court–

Ruth Bader Ginsburg:

Why should the guidance be anything more than, take that line seriously, and you can say, to the extent that the statement is purely self-serving, that it doesn’t satisfy that requirement.

To the extent that it incriminates the speaker himself, it does fit the rule.

Benjamin S. Waxman:

–Again, with that kind of a ruling the petitioner would prevail, and we would certainly be satisfied.

But what I think this case does is present an opportunity to evaluate this presumption that the Court has recognized for 30 years and has repeatedly dwelled upon, and to say, what we are now saying is that these circumstances are so fraught with the possibility of deceiving the factfinder and concealing the truth that we are going to categorically make any of these statements admissible to prevent a violation of confrontation rights, such as the one that occurred in this particular case.

This is not the only case in which the rule has been inappropriately applied to this factual circumstance.

Ruth Bader Ginsburg:

But you conceded earlier, and I think you’re sticking to it, that to the extent it incriminated Harris, it could come in.

There was evidence placing Williamson together with Harris and connecting them both to that vehicle, was there not?

Benjamin S. Waxman:

Yes, there was.

Ruth Bader Ginsburg:

So there would be some relevance to having Harris say, yes, I was the courier, and then there were at least three items of evidence that connected Williamson to the car.

Benjamin S. Waxman:

There were, that’s correct.

John Paul Stevens:

What was that evidence, just his name on the rental agreement?

Benjamin S. Waxman:

His name was on the rental agreement.

There was no evidence that it was in his handwriting.

Benjamin S. Waxman:

There were, I believe, one or two receipts with his name on it in the vehicle, and the luggage in the truck bore initials that matched Williamson’s sister’s name.

There were no fingerprints of Williamson found–

John Paul Stevens:

Is that the extent of the evidence that connected him with the vehicle?

Benjamin S. Waxman:

–That was the extent of it.

Ruth Bader Ginsburg:

Was there some correspondence, something with… or am I confusing this with another situation, something with a girlfriend?

Benjamin S. Waxman:

The girl… the connection with the girlfriend, I believe, was the initials on the luggage in which the cocaine was found.

Ruth Bader Ginsburg:

I thought that was a relative.

Benjamin S. Waxman:

No, that was his sister.

Ruth Bader Ginsburg:

Yes.

She was not his girlfriend.

Benjamin S. Waxman:

I’m sorry, I apologize.

It was… the sister’s name matched the initials on the luggage, and I believe you’re right, I believe there was a piece of correspondence with the name of his girlfriend on it.

Again, what the Court should do is look at these statements as being very distinct, ones that are self-serving, and ones that are not.

While the statement against Harris may have been against his penal interest, certainly the ones against Williamson were not.

William H. Rehnquist:

What if they’re inextricably intertwined, that in two or three sentences, each sentence has some declaration against penal interest, but also some inculpation of third parties?

Benjamin S. Waxman:

I think, for instance… the example that comes to my mind is Lee, where there were references to “we did this”, and “we did that”, and I would urge the Court that… the Court conceivably could separate that situation out and suggest that those circumstances be separately analyzed, but again, what I believe is the crucial factor here is the fact that these statements again are made in the coercive atmosphere of custodial interrogation, and even those–

William H. Rehnquist:

Of course, if they’re coercive statements, custodial atmosphere, that’s a… presumably the Miranda warnings take care of that, so I mean, we’re not… I would think we wouldn’t be arguing that point here.

Benjamin S. Waxman:

–Well, I think this Court’s cases have recognized that even given Miranda warnings, it could still be determined that a statement was involuntary due to the coercive circumstances of the custodial interrogation, but yes, that conceivably could address these circumstances.

William H. Rehnquist:

So you don’t agree that the parts that incriminated Harris and the parts that incriminated Williamson were inextricably intertwined here.

Benjamin S. Waxman:

Absolutely not, and again I think the contrast here would be Lee, where there’s a much better argument that these statements were inextricably intertwined.

Unless the Court has any further questions, I would reserve the balance of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Waxman.

Mr. Manning, we’ll hear from you.

John F. Manning:

Thank you, Mr. Chief Justice, and may it please the Court:

Petitioner argues that an inculpatory confession made by an accomplice to the police while he’s in custody should be excluded per se under the rules of evidence and under the Confrontation Clause.

That contention, however, finds no support either in the rules or in this Court’s Confrontation Clause cases.

As to the rules, petitioner’s argument would mean that no matter how overwhelmingly all of the other circumstances of the case pointed to the admissibility of a statement under the rule, the district court would be required to exclude any such statement as long as it was made by an accomplice to the police while the declarant was in custody.

So if you think about this situation, if someone went to the police and was in custody and said, I murdered Fred, took the watch off of his wrist, and sold it to Joe, that statement would have to be excluded in Joe’s trial for possession of stolen goods.

In other words under petitioner’s view, no district court could find that a reasonable person in the declarant’s position would not have made the statement admitting to a capital crime, and at the same time implicating someone else in a misdemeanor.

We do not believe that that can be sustained under the plain language of the rule.

Sandra Day O’Connor:

Well, Mr. Manning, under the plain language of the rule, how much of this statement can the Government get in, or is there some requirement that we analyze the statement and each part of it to see whether a reasonable person in the declarant’s shoes would have made it and thought it… wouldn’t have made it unless he thought it were true, because there is some concern here that insofar as the statement implicates Williamson, perhaps it doesn’t meet that requirement.

John F. Manning:

Well, there are two distinct answers to that.

One comes from the advisory committee note itself.

In the advisory committee note, and this is cited on page 23 of our brief, the advisory committee explained that a 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.

Now, that is consistent with the common law tradition of statements against interest which, although–

Sandra Day O’Connor:

But wouldn’t it have to meet the requirement of the rule itself to be admitted?

John F. Manning:

–Oh, absolutely, Your Honor.

Sandra Day O’Connor:

And can it, insofar as Williamson is concerned?

John F. Manning:

Well, yes, we think it absolutely can, for a couple of reasons.

If you just think about when somebody is making a statement against penal interest and describing his role in an offense, in describing that role, he says more than just the core, I robbed the bank.

He will say, I robbed the Riggs National Bank, Georgetown Branch, on Tuesday at 11:00 a.m., and there are lots of facts that are part of that statement against interest that if you took them in isolation might not be strictly against the declarant’s interest, but in the–

Sandra Day O’Connor:

Yes, but insofar as the declarant is seemingly trying, or could be seen as trying to minimize the declarant’s own role when caught red-handed and have the major offender be somebody else, maybe it doesn’t meet that test.

John F. Manning:

–Well, we think that the Court absolutely has to look at the statement as a whole and make a determination of whether the entire statement is actually in the declarant’s penal interest.

Sandra Day O’Connor:

Do you say that if portions of the statement don’t meet that requirement of the rule, that the statement can be redacted and offered, then, in a lesser version, or redacted version?

John F. Manning:

Well, we think that that would not be appropriate in a case like this, where–

Sandra Day O’Connor:

Is that possible in an appropriate case?

John F. Manning:

–It’s certainly… it’s certainly possible.

Sandra Day O’Connor:

You don’t say that’s not–

John F. Manning:

No, it–

Sandra Day O’Connor:

–what the Court can do?

John F. Manning:

–It would certainly be appropriate in the right kind of case, but we would say that the right kind of case would be a case where the other statement would not be related, or would not be against the declarant’s penal interest, and let me give you an example, if I may, of the distinction that we would draw in this situation.

If the declarant says, Joe and I robbed the bank, then that statement, the entire statement is against the declarant’s penal interest, because he has not only admitted that he robbed a bank, he has admitted that he has committed a conspiracy with Joe to rob the bank and the entire statement would come in as being against his penal interest.

Now, if he says, it’s ironic, I robbed a bank today, and Joe robbed a bank yesterday, well, the second part of that statement would be excluded because it wouldn’t be related, it wouldn’t be integral to his description of his own offense, and that statement would be redacted when the statement against penal interest was submitted to the jury.

William H. Rehnquist:

Well, you… I’m not sure I follow you in your answer to Justice O’Connor’s question about the proper use of a redacted statement.

This is Williamson’s trial, and you have a declaration from Harris, and Harris says, in effect, what he said in this case about Williamson, and the judge is supposed to admit that on the issue of Williamson’s guilt, although all references to Williamson’s name are stricken?

John F. Manning:

No, he absolutely should not strike the references to Williamson’s name.

William H. Rehnquist:

I thought it was to be redacted.

John F. Manning:

Oh, no, Mr. Chief Justice.

All I was explaining was that in a situation like that, where there is a statement that includes parts, some of which have no relationship to the declarant’s description of the offense, it may–

William H. Rehnquist:

Justice O’Connor I thought early asked you… earlier… whether there would be some situations where you couldn’t get the declaration in verbatim, but it would be proper to get it in with the name of the person on trial, the defendant, redacted, and–

John F. Manning:

–Oh, no–

William H. Rehnquist:

–an example of it.

John F. Manning:

–we don’t think that would be appropriate.

William H. Rehnquist:

Oh, no–

John F. Manning:

When the declarant argue… when the declarant says, I was making this delivery to Williamson, Williamson acquired the cocaine and I was taking it over State lines, all of those statements are against the declarant, Harris’ penal interest, because he is telling the police that he is involved in a conspiracy with Williamson, that he and Williamson are engaged in the offense of traveling across State lines for the purposes of engaging in the business of distributing controlled substances, and each detail that Harris gave of the offense helped to sink him further, not only in the sense that it described elements of offenses that he–

John Paul Stevens:

–He was pretty far under water before he started.

John F. Manning:

–Well, he was–

John Paul Stevens:

All this stuff in the trunk of a rented car–

John F. Manning:

–He was–

John Paul Stevens:

–and he was worried about being found guilty.

John F. Manning:

–He was fairly far under water, but his nose was still above the surface–

[Laughter]

–and what he gave up… what he gave up by his confession was the element of knowledge.

I mean, we think that–

John Paul Stevens:

Let me ask you a question.

You say that there should not be a per se rule, that custodial statements should be excluded.

John F. Manning:

–That’s correct.

John Paul Stevens:

Would you agree, however, that it makes a big difference whether this statement was made to police officers while he was in custody on the one hand, or the same statement being made to a friend which was tape recorded on another hand?

John F. Manning:

That is–

John Paul Stevens:

It would make quite a difference, wouldn’t it?

John F. Manning:

–That is certainly a factor for the district court to consider in its consideration of the totality of the circumstances.

What the district court has to find under this rule is not only that the statement the declarant made was… would tend to subject him to criminal liability–

John Paul Stevens:

Testifying–

John F. Manning:

–but that a reasonable person in the declarant’s position would not have made this statement unless believing it to be true.

John Paul Stevens:

–Well, wouldn’t a reasonable–

–Isn’t it obvious that a reasonable person in declarant’s position might well have made precisely this statement, even if there wasn’t a word of truth in it?

John F. Manning:

Well, we think that… are you asking about the circumstances of this particular case?

John Paul Stevens:

Of this very case, yes.

John F. Manning:

Well, we think that there are several circumstances.

Obviously, there is a serious issue under the rule in this case, but we think there are a variety of circumstances that support the district court’s determination that the rule properly applied.

John Paul Stevens:

Do you take the position that no reasonable person would have made this statement unless he believed it was true, in declarant’s position, had been caught with all this stuff–

John F. Manning:

We think–

John Paul Stevens:

–and that no one would try to pass the blame onto a third party?

John F. Manning:

–We think that the district court was justified in making that finding, which is the inquiry for this Court, and the reason–

Ruth Bader Ginsburg:

Mr. Manning, isn’t the most logical inference that when somebody is caught red-handed, has every incentive to put the blame on somebody else, and that that… putting the blame on the other person has no reasonable… why would anyone have reason to believe that putting the blame on somebody else is true?

I mean, he’s caught with the goods, and he says, well, I was a lesser… I was only the courier.

John F. Manning:

–Well–

Ruth Bader Ginsburg:

Williamson was the big guy.

Why would anyone say that there are reasonable assurances that that latter part is true?

John F. Manning:

–Well, in fact, we think that he did not try to minimize his role in the offense in the way that you describe, with respect, Justice Ginsburg.

This is not a case where somebody is caught selling baggies of dope on the streets and says, look, I’m just the agent here, the kingpin works in that convenience store and I’ll give you his name in exchange for a deal.

This is a situation where the declarant admitted his full participation in a conspiracy to transport approximately 10 million dollars worth of cocaine from Florida to Georgia for distribution.

Now, to be sure, he said that Williamson arranged the acquisition, and that the delivery was to Williamson, but he did not portray himself as a bit player in this conspiracy, and the statements he made not only conceded knowledge that the cocaine was in his trunk, and by the way, we think that these facts are more significant than petitioner suggests.

The cocaine was in the trunk of a rental car, petitioner’s name was on the rental agreement, there was an envelope addressed to petitioner in the glove compartment, a receipt bearing his girlfriend’s address in the glove compartment, and the drugs were in a suitcase that had petitioner’s sister’s initials on it.

Now, if someone were to–

Ruth Bader Ginsburg:

But as far as Harris is concerned, Harris paints himself as the courier, right–

John F. Manning:

–But–

Ruth Bader Ginsburg:

–the one who arranged it and not the one to whom the delivery was being made?

John F. Manning:

–But in this case, painting yourself as a courier is a very significant role in the offense, and it subjected him to charges not only of possession with intent to distribute, but also conspiracy.

Ruth Bader Ginsburg:

That much is against his penal interests, and I don’t think there’s any quarrel about that.

Mr. Waxman said, yes, that much can come in.

To the extent that he is incriminating Williamson, that Harris is incriminating Williamson, how is that against Harris’ penal interest?

John F. Manning:

Well, certainly in a case like this, where you’re describing your role in a conspiracy, every detail that you give to the police helps to sink you further.

It is rare that you find a case where the Government prosecutes somebody on the basis of a naked confession.

John Paul Stevens:

May I just ask one question?

John F. Manning:

Sure.

John Paul Stevens:

In determining whether it’s against penal interest, it is not merely a kind of a schoolroom textbook analysis of whether there’s an additional element of criminal liability, but also on the other side of the balance is maybe he thought this would give him more lenient treatment from the prosecutor because he was cooperating with the police, and shouldn’t that be evaluated in determining whether the net value was against his penal interest?

John F. Manning:

That is certainly a factor for the district court to consider in considering the totality of the circumstances.

David H. Souter:

And so if we have a case in which the substantial motive for making the statement is to obtain more lenient treatment, what ought the result to be?

John F. Manning:

Well, again, it depends on what other circumstances obtain.

John F. Manning:

If you take the example that I gave of the guy admitting to a murder and implicating someone else in the receipt of stolen goods, then that’s a situation where, even if the motive of the person was to seek lenient treatment, you would have to think that his self-incrimination in a capital crime of murder would overcome any doubt about the accuracy of his statement arising from his desire to curry favor by handing over the person to whom he gave the stolen watch that he took off of the murder victim.

Now, the most important point, though, that we would like to make is that in any of these situations the district court should be trusted to weigh the circumstances.

It is absolutely relevant if there is evidence that the declarant made the statement with the idea of currying favor or getting leniency from the authorities in exchange for giving up a cohort.

David H. Souter:

But if the substantial motive is to obtain leniency, it seems to me that that undercuts the rationale of the rule.

The rationale of the rule is that you wouldn’t make this statement unless it were true if it’s against penal interest, but we’re hypothesizing now a situation in which the penal interest is irrelevant.

What you are trying to do is to better your condition, is to obtain leniency.

John F. Manning:

If the district court finds, based upon a preponderance of the evidence, that the statement that the declarant made was in his penal interest in the sense that he inculpated someone else in an effort to gain leniency, then that certainly would be a finding that should be sustained and it would be a proper application of the rule.

Our point is that in making that determination, the Court should not adopt a per se rule that places talismanic significance on questions of custody or of whether the declarant made the statement to the police.

David H. Souter:

Well, I just want to make clear what your position is.

Mr. Manning–

–If the predominant motive in making the statement is to obtain leniency, is that a statement against penal interest and therefore admissible?

John F. Manning:

Again, I think that it’s very difficult to answer that question without knowing all of the facts that surround the statement, but it would be a factor–

David H. Souter:

Well, why is it against penal interest if the dominant motive is to obtain leniency?

John F. Manning:

–Well, because if the dominant motive is to obtain leniency, but the declarant makes a statement that is very, very strongly against his penal interest and the district court concludes that no one in the declarant’s position under all of the circumstances of the case… for example, he has admitted to a murder, and his quest for leniency will gain him very little… if the district court in those circumstances makes the determination that no reasonable person in the declarant’s circumstances would have made the statement unless believing it to be true, then the district court would appropriately admit that statement under Rule 804(b)(3).

William H. Rehnquist:

Is the district court always well-situated to determine what a person’s dominant motive or prevailing motive was in making a statement?

John F. Manning:

Well, the district court has to consider all of the evidence that is submitted by the Government and by the defendant in making the determination.

We think that the district court is among the various actors who could make that determination, the best-situated.

William H. Rehnquist:

Why should we ask any factfinder involved in this evidentiary… to make a finding as to what someone’s dominant motive was?

John F. Manning:

Well, because what the district court has to… the determination that the district court has to make is whether a reasonable person in the declarant’s position would have a motive to fabricate his confession, and in that sense the district court inevitably is making an inquiry into what a reasonable person in the declarant’s position would be motivated by.

Now, one other point I would like to make is that the chief justice had mentioned earlier the possibility that the jury would be able to weigh the various circumstances that surround the making of the statement, and I would like to reinforce that point by noting that under Rule 806 of the Federal Rules of Evidence a declarant can be impeached as to a hearsay… the credibility of a declarant can be impeached with respect to a hearsay statement to the same extent as a person making the same statement in court in live testimony.

So not only is it possible for the jury to weigh the evidence that is submitted pursuant to a hearsay statement admitted under Rule 804(b)(3), but it’s also possible for the defense to impeach the declarant’s testimony under Rule 806, and bring out any bias or motive or interest that the declarant might have had in making this statement, including–

John Paul Stevens:

But that’s true with respect to any hearsay, isn’t it?

John F. Manning:

–That’s true about any hearsay, and the Court has relied on Rule 806 in holding that, for example, coconspirator’s statements can be admitted pursuant to a firmly rooted hearsay exception, because it mitigates the concern that surrounds the admission of hearsay.

David H. Souter:

Mr. Manning, at least getting away from the question of motive, you would at least… I take it you would admit that it would be a correct statement to say that if the trial court reasonably reads the statement as conferring a net benefit on its face as conferring a net benefit upon the declarant, that it would be inadmissible.

You agree to that, I take it.

John F. Manning:

Well, I think we would prefer to put it in terms of the rule itself, that the district court found that a reasonable person in the declarant’s position would make the statement even though he did not believe it was true, that is, if he had some benefit, something to gain by fabricating a statement, then absolutely the district court would properly exclude that evidence.

David H. Souter:

Well, don’t you always have something to be gained by making a statement which is in effect net in your favor?

John F. Manning:

Well, I suppose if you put it that way you would have something to gain if the statement were net in your favor.

If the declarant gained a great deal by inculpating someone else… for example, a situation might be if you had a defendant and the police said, we will cut your sentence in half if you roll over on your cohort, and the declarant said, fine, you know, I’ll… you know, I’ll give a statement, and then he refuses to testify, that would be a situation–

David H. Souter:

But there, there–

John F. Manning:

–where it would be appropriate for the district court to make the finding that a reasonable person in those circumstances would have fabricated the statement.

William H. Rehnquist:

–There are certainly limits, though, to which a reasonable person would go and simply casting blame on someone else, if, you know, the police are going to look into it and say, gee, this is just a bunch of bunk you told us, I mean, a reasonable person isn’t just going to make perfectly wild statements in hope of getting some sort of deal.

John F. Manning:

Well, that’s right, Your Honor, and that’s why it’s important to give the district court the latitude it needs to look at all the circumstances of the case.

In fact, in this case, we think that a situation like that occurred when Harris revised his statement at 6:00 p.m. in response to agent Walton’s setting up a controlled delivery.

As petitioner mentioned, earlier in the day, Harris had made the statement that he had gotten the drugs from a Cuban and that he was going to make a controlled delivery to a dumpster in Atlanta at 10:30 p.m.–

And then when Agent Walton questioned Harris at 6:00 p.m. that evening, he finished his questioning, he stood up to go make a controlled delivery, and Harris stood up and said, I can’t let you go through with it, it’s not true, what I told you is false, and he revised his story, giving details about… that petitioner was driving in front of him in a rented Lincoln Continental and he saw the arrest, and therefore there could be no controlled delivery because petitioner knew that he… that Harris had been arrested.

Now, those circumstances vouch for the reliability of the statement that Harris made at that point, because he would have been in much greater trouble if he had fabricated them at that point.

The DEA could certainly have verified if petitioner had a rented Lincoln Continental on the day that Harris said he did, and certainly if Harris was fabricating there was a chance that petitioner would have a credible alibi, and the Government could have gone through with the controlled delivery, and if Harris had been lying at that point he would have opened himself up to charges of obstruction of justice, so–

Antonin Scalia:

Mr. Manning, I assume that the reasonable person referred to in the rule is a reasonable person who has no compunction about lying, is that right?

John F. Manning:

–A reasonable person who has–

Antonin Scalia:

A reasonable person who doesn’t mind lying under oath.

John F. Manning:

–Well, it would have to suppose that a reasonable person calculating the advantage of telling a lie would tell a lie in these circumstances.

John Paul Stevens:

But he’s not under oath.

John F. Manning:

He’s not under oath, that’s true.

That’s true.

Before I–

Antonin Scalia:

I don’t like the implication anyway.

John F. Manning:

–Neither do I.

Sandra Day O’Connor:

Mr. Manning, could these statements have come in anyway under the coconspirator exception, or were they no longer made in furtherance of the conspiracy?

John F. Manning:

Well, the district court initially suggested that they would come in under the coconspirator exception, but made no–

John Paul Stevens:

The prosecutor talked him out of that.

John F. Manning:

–The prosecutor did talk him out of it, and we believe the conspiracy had probably terminated at the time of the arrest, although in connection with that, I’d like to use that to illustrate the fact that it’s important in all of these cases that in a variety of circumstances we trust district courts to make determinations about the admissibility of hearsay under the Federal Rules of Evidence and trust the district courts to evaluate the totality of the circumstances.

In most cases, when someone is–

Sandra Day O’Connor:

Well, you do, but there has been a lot of strong language in a number of this Court’s cases, a recent one being Lee v. Illinois, about the untrustworthiness of this kind of statement.

You do have to acknowledge that and deal with it.

John F. Manning:

–We do acknowledge that, and we agree that in making an evaluation about the totality of the circumstances and what a reasonable person in the declarant’s position would do when you’re dealing with somebody who is in police custody, the district court must be sensitive to the pressures and to the circumstances that would indicate whether the declarant in the particular case had given up someone else in order to make a deal or to get leniency.

Anthony M. Kennedy:

Don’t you think that most of the time the defendant… or, pardon me, the declarant makes the statement because he thinks it’s in his net benefit?

John F. Manning:

No, I don’t think so.

I think that often you have people who are confronted with having been caught in a crime who make statements that are very much against their penal interest.

I mean, in this case itself the officer pulled Harris over and was questioning him about his weaving in traffic, and he asked Harris, may I search your trunk, and Harris said yes, knowing that there were 19 kilograms of cocaine in the trunk.

John F. Manning:

People all the time make statements to the authorities that are against their penal interest, and if they didn’t we would very rarely catch criminals.

Anthony M. Kennedy:

Well, let me put it this way, then.

The penal interest rule that you’re advocating rests on the assumption that most of the time these statements are made even though it is not to the defendant’s net benefit, as he understands it, to make them.

John F. Manning:

And that’s the very premise of the longstanding exception for declarations against interest.

Almost as early as the hearsay rule itself developed, the courts developed an exception for statements against interest.

Statements against pecuniary interest and proprietary interest were the first ones to develop, and the supposition is that people don’t say things against their own interest if they are lying, and that gives–

Anthony M. Kennedy:

But doesn’t the calculus change when there are multiple defendants?

John F. Manning:

–The calculus may very well change when there are multiple defendants, but the district court is perfectly situated to evaluate all of the factors and circumstances in determining whether the calculus has changed in a way such that a reasonable person in the declarant’s position would fabricate his story in order to gain advantage from the authorities.

I mean, our basic… in all sorts of contexts, we trust the district court to assess the probativeness of evidence, and this Court has been very reluctant to shackle district courts in the context of admitting hearsay with per se rules that restrict their ability to consider the whole picture in deciding whether something fits within a hearsay exception.

In Bourjaily, the Court rejected a per se rule forbidding district courts from considering hearsay evidence in determining the admissibility of statements pursuant to the coconspirator exception.

In Idaho v. Wright, the Court rejected a per se rule that would prevent district courts from allowing the introduction of hearsay that was made by a witness who was unavailable because she was determined to be incompetent.

One of the purposes of the Confrontation Clause and the principal purpose, we would submit, is to further the truth-seeking function of the trial, and if petitioner’s view is accepted, a district court looking at an array of circumstances, if confronted with the fact of custody, will have to ignore every other fact, put on blinders, and say, this statement doesn’t come in.

We think that’s contrary to the general approach of this Court and the lower courts, the Federal Rules of Evidence, and it’s contrary to the plain language of Rule 804(b)(3).

If there are no further questions–

William H. Rehnquist:

Thank you, Mr. Manning.

You have 5 minutes remaining, Mr. Waxman.

Benjamin S. Waxman:

Unless the Court has any further questions at all, I would waive my rebuttal time.

William H. Rehnquist:

Thank you, Mr. Waxman.

The case is submitted.