Williamson v. United States (93-5256), 512 U.S. 594 (1994).
[ Scalia ]
[ Ginsburg ]
[ Kennedy ]
[ O'Connor ]
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No. 93-5256


on writ of certiorari to the united states court of appeals for the eleventh circuit

[June 27, 1994]

Justice Kennedy , with whom The Chief Justice and

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 statementswhich are damaging to themselves unless satisfied for

good reason that they are true." Advisory Committee 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, 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 factwhich 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 self serving 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 5; 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 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 5 (adopting "narrower reading" that "Rule 804(b)(3) cover[s] only those declarations or remarks within the confession that are individually self inculpatory"); ante, at 1 (Ginsburg, J., concurring in part and concurring in judgment); but cf. ante, at 1-2 (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 5, and reasons that this policy "expressed in the statutory text," ante, at 8, "simply does not extend" to collateral statements. Ante, at 5. 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 6.

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 2-3. 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 incorporates Jefferson's position respecting collateral statements than it does McCormick's or Wigmore's.

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 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 Note establishes that some collateral statements are admissible. In fact, it refers in specific terms to the issue we here confront: "[o]rdinarily 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 includestatements 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 statutory text points clearly enough in one direction that it outweighs whatever force the Notes may have." Ante, at 8. 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 Note does answer the question, our practice indicates that we should pay attention to the Advisory Committee Note. We have referred often to those Notes in interpreting 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 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. ___, ___ (1993) (slip op., at 7); 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) ("if 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 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).

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 Electric 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 wouldcause 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) ("most 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) ("the 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 accused 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 8-9. But as the commentators have recognized, it is likely to be the rare case where the precise self inculpatory 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").

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 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 self serving against dis[serving] aspects of a declaration." 28 U. S. C. App., p. 790. As noted supra, at 2, 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 thedisserving parts of the declaration, and exclude the self serving parts" at least "where the serving and disserving parts can be severed." Id. §256, p. 553. It thus appears that the Advisory Committee 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 ("the 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 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, self serving 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 ofguilt 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 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'sstatement 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 10 (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 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.

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 104(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 principleshere 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.