Excising to keep fit

By Lance M. Hester; March 2001

     Sshhhhhh!  Don’t tell anyone.  But from time to time the State gives a defendant a “good deal” if she’ll testify against a co-defendant.  This fact is golden when your client is the recipient of the bargain.  And when you’re client is the target, it suddenly becomes the most repulsive concept in criminal jurisprudence.  But, what happens when the sleaze-ball snitch takes the deal and runs – literally? 

      The State will still seek to offer any testimony she may  have made during the course of the investigation.  If so, there is no doubt the State will argue that the testimony is a Statement Against Interest under ER 804(b)(3).  In order to use the rule, there must first be a showing that the witness is unavailable to come testify live.  If that is the case, the State will necessarily then have to make a showing that the statement made was, at the time made, against the declarant’s,

 “pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, … , that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true.  In a criminal case, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

ER 804(b)(3).

     In accordance with the above, a defense attorney should try to protect his client’s 6^th Amendment right to confront witnesses against him by utilizing the rule and corresponding case law.  Thus, the following steps should follow:

Ascertain whether a witness who has made statements against his client will be testifying.

Determine which witness will testify to that witness’s hearsay statement.

Outside the presence of the jury, ask the court to require the State to make an offer of proof as to what testimony will be presented to the jury.

Argue whether the witness is available or not.

Ascertain (and likely argue against) whether corroborating circumstances indicate the trustworthiness of the statement.

Then, if the court seems to be tending toward admitting the statement, try to limit what part of the statement actually comes in.

Here’s how:

Availability

     In these cases, the State has the burden of establishing a witness’s availability.  Check subpoenas and proof of service.  Check to see if probation officers have been consulted, or his or her prior attorney has been contacted.   Then, obviously, make your argument accordingly.

Trustworthiness

     In Washington, trustworthiness is typically determined by evaluating what has come to be known as the Ryan guidelines (See State v. Ryan, 103 Wn.2d 165 (1984)).  These important guidelines serve as factors for the court’s consideration.  The defense attorney’s careful articulation regarding these factors will be cornerstone in the court’s ultimate decision as to whether the statement is admissible.

Excise the rest

     Thanks to a recent decision of our State Supreme Court there now exists a mechanism for getting rid of portions of the declarant’s statement that otherwise are inadmissible.  Previously Washington courts seemed to favor including the statement as a whole once determined admissible.  But recently State v. Roberts, 142 Wn.2d 471 (2000) ruled otherwise. 

     Justice Johnston relied on Williamson v. United States, 512 U.S. 594 (1994) when concluding the word “statement” means “a single declaration or remark as opposed to an extended declaration (narrative).” State v. Roberts, Supra.  Consequently, the defense attorney now has a mechanism available to dissect difficult statements such that those portions of a hearsay narrative that are not against a declarant’s interest will not be admitted.  Because these types of witnesses tend to point their fingers at others and spend little time discussing their own involvement, the defense attorney will now find plenty of material worthy of redaction.

Don’t forget Bruton

     Closely related to this issue is the Bruton rule (see Bruton v. United States, 391 U.S. 123 (1968)).  The Bruton rule prevents the use of confessions by nontestifying co-defendants under many circumstances.

     If the declarant was a co-defendant at any point in the case (which will likely be the case if she received a good “deal” for agreeing to testify), this argument may exist.  The courts have had lots to say about it over the years.  And, a mechanism for “redacting” statements implicating the defendant exist.  However, the mechanism clearly changes the entire statement of the declarant in many situations.

Final tips

     In order to keep on your toes, simply remember that you have the following goals; and try to protect your client’s interest accordingly with sound reasoning based on the above cases:

Argue the importance of the 6^th Amendment and your client’s right to cross-examine;

Try to exclude these statements altogether when they implicate your client, or a situation he is implicated in by virtue of the statement; and

Limit what portions of statements will come in if you can’t keep the whole thing out.