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

State v. Robert Bintz, 2002 WI App 204, affirmed on habeas review, Robert Bintz v. Bertrand, 403 F.3d 859 (7th Cir 2005)
For Bintz: Elizabeth A. Cavendish-Sosinski

Issue: Whether the codefendant’s noncustodial statement to the police — which, although not acknowledging responsibility for the murder, did admit to threatening the victim and placing both defendants at the scene — was admissible against the defendant as a statement against penal interest.

Holding: Although the Supreme Court held, in Williamson v. United States, 512 U.S. 594 (1994), that the against-interest hearsay exception doesn’t countenance “nonself-inculpatory statements made in generally self-inculpatory narratives,” this statement doesn’t fall in that rule:

¶10. Here, Robert argues the parts of the statement placing him at the scene of the murder were inadmissible under Williamson. We disagree. Although Williamson says while nonself-inculpatory statements are generally inadmissible, it does not establish a hard and fast rule. The court noted, “Even the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor.” Id. at 603. The trial court admitted the whole statement because it saw no attempt by David to shift the blame to Robert. We agree. David’s statement is self-inculpatory. It places him at the scene of the murder, gives him a possible motive, and admits his threat to blow up the bar. At the time he gave the statement, however, David was not under arrest, nor was he told he was a suspect in the murder investigation. He did not attempt to blame his brother for anything, and nothing suggests he was trying to curry favor with the police. These circumstances suggest David was more likely to have been truthful about Robert’s being at the bar that night. We cannot say the trial court erred by admitting David’s statement under Wis. Stat. § 908.045(4).

(Emphasis supplied.)

Though the court barely emphasizes it, the key fact is undoubtedly that the declarant was not in custody. Had he been, then the rule of Bruton v. United States, 391 U.S. 123 (1968) should have been triggered. But whether the suggestion in Bintz — that an in-custody statement may be admissible hearsay against another — remains to be seen.

UPDATE: Whatever the merits of the court’s hearsay analysis, admissibility of David’s statement to the police is highly suspect as a matter of confrontation clause analysis, in light of the subsequently decided Crawford v. Washington (confrontation clause violated if extrajudicial testimonial statement is admitted against defendant unless the witness is unavailable and defendant had prior opportunity to cross-examine the witness — David may have been unavailable because he pleaded the Fifth, but Robert had no prior opportunity to cross-examine him).

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