In cocaine possession and Hobbs Act robbery case, excluding defendant's post-arrest statement that he had been forced to help rob a drug dealer, as charged; the statement lacked sufficient guarantees of trustworthiness in light of defendant's post-arrest conduct and motive to make an exculpatory statement, so that it did not qualify for admission under FRE 807, the residual hearsay exception, in United States v. McCraney, __ F.3d __ (8th Cir. July 22, 2010) (Nos. 09-1943, 09-2330)
FRE 807 requires that the hearsay it admit have "equivalent circumstantial guarantees of trustworthiness" as demonstrated by a statement that would be admitted under the FRE 803 or 804 hearsay exceptions. One curious aspect of the rule is that it invites the judge to examine factors that more often are deemed to be a matter of the weight of the evidence, rather than its admissibility. Hearsay declarant credibility is one such factor usually left to the jury to consider once evidence has been admitted, rather than a critical factor in deciding whether to admit evidence. In a recent case, the Eighth Circuit demonstrated how considering evidence of a hearsay declarant's motivation - an aspect of credibility - applies in considering whether to admit evidence under the residual hearsay exception created by FRE 807.
In the case, the two co-defendants were charged with robbing Jones, a local drug dealer, of cocaine. As told by the victim Jones, he had contacted co-defendant Williams about meeting to sell him cocaine in a Wal-Mart parking lot. During the meeting, defendant McCraney joined them and with the aid of Williams robbed Jones of cocaine, his ID, his money, cigareetes, a lighter and a cell phone. They then released the victim who purused them on his motorcycle and then reported the robbery to 911. The police quickly located the defendants and then:
"engaged in a high-speed chase down Interstate 380.... During the chase, officers saw several items thrown out of the front passenger-side window of the Williams car. Officers later searching along the route found a Motorola cell phone box containing several packages of cocaine and a handgun. When the officers concluded that Williams would not stop voluntarily, one of the pursuing officers intentionally struck Williams's car, causing it to spin off the road and into a ditch. Police arrested McCraney and Williams. Officers searched the car and recovered one sealed package of cocaine and a clip and a bullet for a .45 caliber handgun. At the time of his arrest, Williams carried two cell phones-his own and Jones's-and $219 in cash. McCraney was carrying $137.McCraney, __ F.3d at __.
The two defendants were tried and convicted. Williams appealed contending that the trial judge erred by excluding evidence he proffered in his defense. The evidence consisted of:
"a declaration by Williams that he did not know anything about the robbery of Jones prior to when it occurred, that he was taken by surprise when McCraney entered the car and pulled out a gun, that after the robbery McCraney instructed him to drive away from the parking lot, and that McCraney then put the gun to Williams's head and told him to keep driving while the police pursued them. Williams suggests that a statement given by an uncounseled arrestee who is under interrogation by law enforcement officers bears sufficient indicia of trustworthiness to warrant admission under Rule 807, because the very purpose of police interrogation is to obtain truthful statements that can be used to further an investigation."McCraney, __ F.3d at __.
The circuit did not use much ink to dispose of the defendant's contention of an error in excluding the defendant's exculpatory statement. The circuit agreed with the trial judge who found that defendant William's:
"statement identifying McCraney as the mastermind of the robbery was not admissible under Rule 807, because '[i]t does not bear indicia of trustworthiness for somebody to sit down and write out a statement that essentially implicates somebody else.' We agree with this sensible conclusion. Williams was arrested after leading police on a highspeed chase. The police found a cell phone belonging to the robbery victim on his person and located cocaine and accessories to a handgun in his car. Williams could not plausibly deny altogether that he had participated in the robbery and subsequent flight, so he had clear motivation to present himself as an unwitting and unwilling participant. The district court did not abuse its discretion in ruling that a statement made under these circumstances is not sufficiently trustworthy to be admitted into evidence under Rule 807."McCraney, __ F.3d at __.
One key to the court's determination that the hearsay did not meet the residual exception was the motivation of Williams, the hearsay declarant. But in assessing the declarant's motivation, the trial judge also engaged in an exercise that would be undertaken by the jury in considering the evidence had it been admitted. Under FRE 807 often the inquiry of the judge could tend to overlap the inquiry that the jury would undertake if the evidence is admitted. See, e.g., United States v. Walker, 410 F.3d 754, 757 (5th Cir. 2005) (Declining to admit tape of police interview with an alleged perpetrator of the drug crime that the defense offered because the declarant on the tape had disappeared after the statement and before police could arrest him, finding the statement was untrustworthy under FRE 807, despite fact that the prosecution relied on the statement in seeking an indictment of the declarant because trustworthiness was the "lodestar" for applying FRE 807.).
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