Tuesday, January 27, 2015

The Longest Opinion Ever on Statements against Interest

We guess, anyway. In keeping with a noticeable pattern, the Tenth Circuit published a very long opinion (26 pages) last week. This one is on Federal Rule of Evidence 804(b)(3). The case is United States v. Lozado.

Rule 804(b)(3) allows for the admission of hearsay statements against penal interest made by unavailable witnesses. To be admissible, a statement must be one that: (1) "a reasonable person in the declarant's position would have made only if the person believed it to be true;" and (2) "is supported by corroborating circumstances that clearly indicate its trustworthiness."
In Lozado, the defendant sought to introduce a statement his brother-in-law, Farris, made to officers after officers found ammunition in Lozado's vehicle. In the statement, Farris told officers that the ammunition was his, although he got most of the details about the ammunition (and other things) wrong. Farris also admitted that he was an illegal drug user, but continually told officers that he had done nothing wrong (it is, of course, illegal for a drug user to possess a firearm under 18 USC 922(g)(3)). Farris's statement actually contradicted Lozado's; Lozado also claimed ownership of the ammunition in the vehicle.  Farris was unavailable at Lozado's trial because he asserted his Fifth Amendment right to remain silent. But the district court excluded the hearsay statements. Lozado was convicted and sentenced to a whopping 235 months' imprisonment for his possession of ammunition.
The Tenth Circuit affirmed in an exegesis on Rule 804(b)(3). The Court addressed both prongs of the above-mentioned test, dwelling on the first one for an excruciating long time. But we wonder why. The much shorter analysis on corroboration appears to suffice. The district court found the statements uncorroborated. Farris's story did not mesh either with the facts or Lozado's own admission that the ammunition was his. And Farris was Lozado's brother-in-law.
With that said, we note some frustration with this requirement of corroboration on such a key piece of evidence. Farris's statement was extremely important to Lozado's defense. It seems to us that the credibility of the statement should have been left for the jury to decide. Or give immunity to Farris and allow him to testify (an admittedly unthinkable idea).
The Court's discussion on the first prong is not an easy read. There is a debate on whether the "reasonable person" test is objective or subjective, even though "reasonable person" tests are, as far as we know, defined as objective tests. The Court tries to reach the opposite conclusion, straining to interpret a declarant's "actual" beliefs on the inculpatory nature of the statements as relevant to the reasonable person analysis, but the cases it cites appear largely inapposite and the quotes pulled from those decisions are seemingly taken out of context. In any event, even assuming the Court nailed its analysis, the oddity is that, following it, the Court concedes that the record is unclear as to whether Farris subjectively believed that his statements were inculpatory. So we think all of this is dicta. Ultimately, the Court concludes that the district court did not abuse its discretion when it held that a reasonable person would not have believed Farris's statements were against his penal interest. Apparently, the district court thought charges under 922(g)(3) rare, and defense counsel admitted that it did not even know 922(g)(3) existed. The Court says that it does not rely on these things in making its ultimate determination. But it gives no other reasons, other than Lozado had the burden of proof and he did nothing to meet it (amazingly, it took 21 pages to say this).
Whatever the state of the law on Rule 804(b)(3) prior to this decision, it just got a whole lot murkier.    

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