In arson trial, excluding as not sufficiently inculpatory to be statement against interest under FRE 804(b)(3): (1) a recorded conversation in which the coconspirator told the confidential informant that while he was not involved in the charged fire, someone had “wanted him to do it”; and (2) testimony that a witness heard the coconspirator tell another person that he (the coconspirator) had started the charged fire (but even if this was erroneous, it was harmless in light of the considerable evidence of the coconspirator's participation in the arson), in United States v. Guzman, 603 F.3d 99 (1st Cir. May 3, 2010) (No. 08-1693)
Monday's Federal Evidence Blog (“Divided Tenth Circuit Reviews Requirements For Statements Against Interest Under FRE 804(b)(3) and the Confrontation Clause”) considered a case on FRE 804(b)(3), that admits statements against interest of an unavailable declarant. The blog noted that “the application of the rule often turns on the particular facts of the case and ha[s] generally not been easy,” and often requires careful parsing of the statement to be admitted into evidence. A recent First Circuit case demonstrates the distinctions a court is often called upon to make in determining when a statement is sufficiently against the declarant's interest to qualify under the hearsay exception.
In the case, defendant Guzman was charged with burning an apartment building and in doing so killed two residents. The prosecution charged that the defendant and a colleague (Cruz) agreed to burn a building because of some offense that a resident of the apartment had given Cruz. The trial judge granted the prosecution's motion in limine so that “two hearsay statements by Cruz that Guzman claimed were statements against penal interest, which implicated Cruz in the fire and showed Cruz acted alone” would be excluded at trial. The defendant was found guilty and he appealed, contending in part that the trial court erred by excluding the two statements by Cruz.
The First Circuit rejected this challenge. The circuit explained that the first hearsay statement by Cruz in which he denied setting the fire, but admitted he was asked to start it, was properly excluded. The circuit noted that excluded statement was uttered during a “conversation … just after Cruz and the informant drove past the site of the fatal [charged] fire. The informant asked Cruz whether he committed the arson, and Cruz responded, 'I didn't have anything to do with that.' Moments later, in response to another question by the informant, Cruz stated that '[t]hey wanted me to do it but I didn't do it because you know two people died there.' Cruz also told the informant '[t]his nigar that did it, he didn't even get paid for it.'” Guzman, 603 F.3d at 107.
The First Circuit analysis of the issue started by quoting the text of the rule, to the effect that it required that the statement be admitted if:
- The declarant is not available,
- at the time the statement was made it would have subjected the declarant to civil or criminal liability,
- that a reasonable person in the “declarant's position would not have made the statement unless believing it to be true, and
- when this statement tends to expose the declarant to criminal liability and it is offered to exculpate the accused, the FRE requires that it first be corroborated by proof of “circumstances [that] clearly indicate the trustworthiness of the statement.”
In applying these standards, the circuit found no error. As noted by the panel:
“The district court did not abuse its discretion in granting the government's motion in limine on these statements, based on the arguments the parties put forth in their motions. The government argued to the court that the statements were not against Cruz's penal interest; Cruz denied involvement in the fire. Guzman argued that Cruz's statements in this exchange were against penal interest because they showed that someone wanted him to set the fire and that he knew that whoever did set the fire did not get paid for it. But those statements were not inculpatory and not against Cruz's penal interests.”
Guzman, 603 F.3d at 108.
The second statement proffered by the defendant was included in “statements from a conversation that a witness, Javier Rodriguez, overheard between Cruz and a third person.” As explained by the circuit:
“A couple weeks after the fatal fire, a state trooper walked into a local park to hand out flyers offering a reward for information about the fire. About five minutes after the trooper left the park, Rodriguez claimed he overheard Cruz say to the third person, “now that the people know it's me, they are going to rat me out.” Cruz later said to this third person in Spanish, “I just told you that I started the fire, how do I know that you ‘niggers' won't rat me out.” The government introduced evidence from the third person Cruz was speaking to that this was a joking conversation in its motion in limine. It argued that because this person viewed the conversation as a joke, there was no corroboration.”Guzman, 603 F.3d at 108.
The circuit questioned whether this was admissible under the statement against interest exception since the defendant seemed to have the better argument that the witness's statement was “plainly against penal interest. Contrary to the government's argument, the statement of this third person tended to corroborate Rodriguez's statement about what Cruz had said. The fact that the third person described the conversation as joking was not an adequate reason to exclude the statement. The prosecution could have argued that to the jury.” Guzman, 603 F.3d at 108.
However, even if an error it was a harmless one. This was because the court record revealed “a great deal of other evidence that Cruz participated in the arson.” In fact, the statement was not so far astray, since “the statement says nothing about Guzman and is not a statement by Cruz that he acted alone.” Guzman, 603 F.3d at 108.
The Guzman case stands as a useful reminder of the need to carefully parse whether the statement to be admitted is against the declarant's interest and is corroborated. In any event, it appears that even had the court erred in excluding the evidence, it was considered to be harmless.
