NCJ Number
61003
Journal
California Law Review Volume: 66 Issue: 6 Dated: (DECEMBER 1978) Pages: 1189-1217
Date Published
1978
Length
29 pages
Annotation
THIS LAW REVIEW COMMENT SEEKS TO SOLVE A DILEMMA RAISED BY THE ADMISSIBILITY OF INCULPATORY (IMPLICATING) STATEMENTS AS EVIDENCE UNDER FEDERAL RULE 804(B)(3) WHICH ADMITS DECLARATIONS AGAINST PENAL INTEREST.
Abstract
CONFUSED DRAFTING AND INCONSISTENT FEDERAL COURT APPLICATION MAKE THE PROPER TREATMENT OF INCULPATORY STATEMENTS DIFFICULT TO DETERMINE. BECAUSE DOUBTS ABOUT THE CONSISTENT TRUSTWORTHINESS OF THESE STATEMENTS IS SOUND, LIBERAL ADMISSION IS UNACCEPTABLE. ON THE OTHER HAND, THE ADVISORY COMMITTEE NOTE AND THE FEDERAL CASE LAW SUGGEST THAT LIBERAL ADMISSIBILITY IS THE ONLY ALTERNATIVE. ONE SOLUTION WOULD BE TO USE A 'STRICT SCRUTINY WITH CORROBORATION' TEST TO ELIMINATE THE MORE COMMON SOURCES OF UNRELIABILITY. SUCH A TEST WOULD BE TIME-CONSUMING, BUT WOULD PROTECT THE DEFENDANT'S FAIR TRIAL RIGHTS, AND ALSO WOULD IMPRESS UPON THE JUDGES THAT A SIGNIFICANT DEGREE IN THE RELIABILITY OF A STATEMENT IS NECESSARY BEFORE IT IS ADMITTED. JUDGES THEN WOULD HAVE TO DEAL WITH INCULPATORY STATEMENTS IN A SOUND AND CONSISTENT WAY, THE JURY WOULD NOT BE DENIED PROBATIVE EVIDENCE, AND THE CRIMINAL DEFENDANT'S RIGHTS WOULD BE SAFEGUARDED. IN ADDITION, SINCE HEARSAY EXCEPTIONS AGAINST PENAL INTEREST, LIKE OTHER EXCEPTIONS, ARE BASED ON UNTESTED COMMONSENSE PSYCHOLOGICAL ASSUMPTIONS, THEY NEED TO BE REEVALUATED IN THE LIGHT OF NEW EVIDENCE AND PUT ON A MORE RATIONAL FOOTING. FURTHER DISCUSSION CONCERNS THE DRAFTING OF THE FEDERAL RULES OF EVIDENCE, ALTERNATIVE APPROACHES, AND CASE LAW. EXTENSIVE FOOTNOTES ARE PROVIDED. (AOP)