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Hearsay – Against-Penal Interest Statement Exculpating Defendant, § 908.045(4)

State v. Joseph J. Guerard, 2004 WI 85, reversing unpublished decision of court of appeals
For Guerard: Joseph L. Sommers

Issue/Holding:

¶23. The central issue in this case is the extent of corroboration required under Wis. Stat. § 908.045(4) for statements tending to expose the declarant to criminal liability and offered to exculpate the accused. We addressed this issue at length in Anderson, holding that the standard for corroboration under Wis. Stat. § 908.045(4) is “corroboration sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true.” Anderson, 141 Wis. 2d at 662.

¶24. Thus, under Anderson, Wis. Stat. §§ 908.045(4) and 901.04(2) together permit the admission of an out-of-court statement against penal interest by a declarant who is unavailable if: 1) the statement when made tended to expose the declarant to criminal liability; and 2) the statement is corroborated by evidence that is sufficient to enable a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true. Id. If a statement satisfies these specific conditions, a court may still exclude it on the general grounds that its probative value “is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Wis. Stat. § 904.03; Anderson, 141 Wis. 2d at 664.

¶32. The test for corroboration established in Anderson is intermediate and flexible, striking a balance between the need for exculpatory evidence and the “countervailing concern for the exclusion of untrustworthy statements.” Anderson, 141 Wis. 2d at 663. It neither prescribes nor limits the type or source of acceptable corroboration under Wis. Stat. § 908.045(4). Application of the Anderson standard specifically does not involve an evaluation of the credibility or weight of the statement against penal interest itself; this is to “maintain[] the jury’s role of assessing credibility and determining weight while properly limiting the judge’s role to a threshold admissibility determination.” Id. at 665. The Anderson standard tests the sufficiency of the corroboration by evaluating its tendency to lead a reasonable person to conclude that the hearsay statement against penal interest could be true.

¶34. To the extent that Johnson is interpreted as always requiring corroboration “independent” of the statement against penal interest itself, it is inconsistent with Anderson, which placed no such limitation on the nature of the corroboration required under Wis. Stat. § 908.045(4). Although corroboration will usually be contained in evidence that is external to the statement itself, a requirement that corroboration must always be “independent” would be arbitrary. That a declarant’s confession is repeated to more than one witness may well be sufficient, in light of all the facts and circumstances, to permit a reasonable person to conclude that it could be true, even in the absence of corroboration that is “independent” of the confession itself. In this sense, the statement against penal interest may be sufficiently “self-corroborating,” under the circumstances, by virtue of having been repeated in substantially the same form to a second or third witness. There may well be other circumstances in which a statement against penal interest is sufficiently self-corroborating as to meet the Anderson standard for admissibility under Wis. Stat. § 908.045(4), a possibility specifically recognized in Johnson.

If there is an overarching lesson, it is probably in the primacy assigned the jury’s fact-finding function. This, in turn, revolves around § 901.04(2), admissibility conditioned on finding of relevant fact. See ¶22. The trial judge, of course, determines whether the condition has been satisfied, and if the test is too stringent, then the litigant is deprived of jury determination of the relevant fact. The court of appeals has allowed the screening of 908.045(4) statements to be too fine, and the supreme court now rights the balance. If you need to distill the lesson into one, well-crafted sentence, this would be it, ¶42: “There is sufficient evidence here to permit a reasonable person to conclude, in light of all the circumstances, that Daniel’s self-inculpatory statement could be true, and that is all the corroboration standard requires.” Key words: “reasonable person” (typically a jury question); “could be true” (a very low threshold).Specifically, the court rejects the more stringent test of State v. Johnson, 181 Wis. 2d 470, 510 N.W.2d 811 (Ct. App. 1993) (statement inadmissible if corroboration “merely debatable”) and restores the more forgiving test of State v. Anderson, 141 Wis. 2d 653, 660, 416 N.W.2d 276 (1987), ¶35.

On the merits, two against-interest statements by defendant’s brother inculpating himself and exculpating defendant are held “corroborated and therefore admissible,” ¶36. Although the court isn’t quite explicit as to the details of the corroboration, given the lengthy discussion quoted in part above the statements were probably viewed as “self-corroborating.” See, also, ¶38 n. 6: “Each statement is corroborative of the other ….” But the “considerable detail” provided by at least one of the statements, ¶36; and the similarity “in certain important respects” to victim’s and defendant’s versions, ¶42, surely factored into the conclusion as well. Existence of “some discrepancies” between the statements and the victim’s and defendant’s own testimony, don’t mean a lack of corroboration but, rather, goes “to the jury’s evaluation of the weight and credibility of Daniel’s admissions,” ¶¶40-42.

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