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Confrontation – Hearsay: Social Interest Exception, Particularized Guarantees of Trustworthiness

State v. Edward A. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187, habeas relief granted, Edward A. Murillo v. Frank, 402 F3d 786 (7th Cir. 2005)
For Murillo: Craig Albee

Issue: Whether a statement implicating defendant in a homicide and made by his brother and fellow gang member while in police custody satisfied the against-social-interest hearsay exception, § 908.045(4).

Holding: The against-social-interest exception is based on the assumption that a declarant will not make a personally damaging statement unless satisfied for good reason that it is true (¶11). The court must employ a test that is both objective and subjective: that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true, and also that the declarant’s actual state of mind shows an awareness that the statement undermined his/her interest. ¶¶12-16. Both parts of the test are satisfied. Because the social-interest exception (§ 908.045(4)) is not firmly rooted, the state must show particularized guarantees of trustworthiness. That showing is met, the court relying largely on its hearsay discussion and in the process distinguishing Lilly v. Virginia, 527 U.S. 116 (1999) (in-custody statement against penal interest violated confrontation; suspect has natural motive to exculpate self and shift blame — court of appeals conveniently forgetting that declarant was in custody and that trial court actually premised admissibility at least in part on penal interest exception, ¶7). ¶¶20-25.

The result was overturned on habeas review. The state court holding, as the habeas court noted, citing Crawford v. Washington,

is contrary to clearly established federal law as it presently exists. This is because the United States Supreme Court has recently held that the Sixth Amendment Confrontation Clause bars the use against a defendant of statements made by a non-testifying witness in the course of an interview with the police….

To that should be added the qualifications that the witness is unavailable at trial and also that the defendant didn’t have a prior opportunity for cross-examination. Those conditions apply here, but Crawford was decided after Murillo’s appeal was over,  so he can’t take advantage of it. But he is nonetheless entitled to relief under applicable caselaw, namely Lilly. The grant of habeas relief casts severe doubt on the state-court result, in particular the habeas court’s derision of “Wisconsin’s ‘social interest’ exception to the hearsay rule is itself unsupported by any data of which we are aware.”

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