The Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

The ruling made in OHIO V. ROBERTS (1980) says that an unavailable witness's out-of-court statement may be admitted so long as it has adequate indicia of reliability--i.e., falls within a "firmly rooted hearsay exception" or bears "particularized guarantees of trustworthiness."

The North Carolina General Statute 804 (b)(3) is based on the Roberts decision and the North Carolina Court of Appeals made its decision about point #1 of the Kimble Appeal with the Roberts decision in mind. 

NORTH CAROLINA V. RONNIE LEE KIMBLE

FILED IN THE NORTH CAROLINA COURT OF APPEALS, OCTOBER 3, 2000

APPEAL DENIED <Opinion>

Defendant first asserts the trial court erroneously allowed in evidence statements by Ted, a co-defendant in the crime who was tried separately. Defendant asserts the admission of these statements violated both North Carolina law, as well as defendant's Sixth Amendment right to confront and cross-examine an adverse witness. Defendant's argument is without merit.
    

During defendant's trial, Ted invoked his Fifth Amendment privilege not to testify. Statements Ted made were then offered in evidence through the testimony of two witnesses [Robert Nicholes and Patrick Pardee], both of whom had been involved with Ted in a theft ring. All of the statements implicated Ted in the murder; some of the statements also implicated defendant in the murder. After conducting a voir dire hearing, the trial court admitted the statements pursuant to N.C.G.S. § 8C-1, Rule 804(b)(3) (1999) (statements against interest) (Rule 804(b)(3)) and N.C.G.S. § 8C-1, Rule 801(d)(E) (1999) (statement by co-conspirator in furtherance of conspiracy).

The Appeals Court ruled that the statements made to Nicholes were properly admitted:

The issue on appeal, then, is limited to whether the statements were properly admitted under Rule 804(b)(3). (North Carolina General Statutes)

 

First, the statement must be "deemed to be against the declarant's penal interest." Second, "the trial judge must be satisfied that corroborating circumstances clearly indicate the trustworthiness of the statement if it exposes the declarant to criminal liability."  The corroborating circumstances required by the second prong may include other evidence presented at trial.

 

Nicholes testified only to self-inculpatory statements by Ted. Such purely self-inculpatory statements . . . are classic "statements against interest" and thus fall within a firmly-rooted hearsay exception. Furthermore, sufficient corroborating evidence was admitted at trial to indicate the trustworthiness of the statements.

Regarding the statements made to Pardee, the Court said that it didn't matter whether they were improperly admitted because the same facts were established through another witness, Mitch Whidden.  "Where evidence is properly admitted through one witness, the defendant will not be heard to complain that the same evidence, improperly admitted through a different witness, was prejudicial error."

HEARSAY CANNOT BE ADMITTED BY REFERENCE TO OTHER EVIDENCE AT TRIAL

NON-TESTIFYING ACCOMPLICE CONFESSIONS DO NOT QUALIFY AS A HEARSAY EXCEPTION

"To be admissible under the Confrontation Clause," we held, "hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.

The decisive fact, which we make explicit today, is that accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence.

LILLY CITES DOUGLAS, LEE, AND BRUTON:

DOUGLAS V. ALABAMA (1965)

BRUTON V. UNITED STATES (1968)

LEE V. ILLINOIS (1986)

That other evidence at trial corroborated portions of (Mark's) statements is irrelevant.  We have squarely rejected the notion that "evidence corroborating the truth of a hearsay statement may properly support a finding that the statement bears 'particularized guarantees of trustworthiness.'"

Over 30 years ago, we applied this principle to the Sixth Amendment. We held in Douglas v. Alabama, (1965), that the admission of a nontestifying accomplice's confession, which shifted responsibility and implicated the defendant as the triggerman, "plainly denied [the defendant] the right of cross-examination secured by the Confrontation Clause."

In Lee, we reaffirmed Douglas and explained that its holding "was premised on the basic understanding that when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination.". Quoting Bruton, . . . Indeed, even the dissenting Justices in Lee agreed that "accomplice confessions ordinarily are untrustworthy precisely because they are not unambiguously adverse to the penal interest of the declarant," but instead are likely to be attempts to minimize the declarant's culpability.”

Consistent with this scholarship and the assumption that underlies the analysis in our Bruton line of cases, we have over the years "spoken with one voice in declaring presumptively unreliable accomplices' confessions that incriminate defendants."

Our cases have thus remained faithful to the Framers' understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine . . .

Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation,,,,,,,,,,

Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes……..

CRAWFORD OVERRULES ROBERTS IN REGARD TO TESTIMONIAL STATEMENTS

Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.

The judgment of the Washington Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

NOTES THAT ROBERTS IS OVERRULED AND CROSS-EXAMINATION REQUIREMENT IS RESTORED

"Roberts condition[ed] the admissibility of all hearsay evidence on whether it falls under a 'firmly rooted hearsay exception' or bears 'particularized guarantees of trustworthiness.' We overruled Roberts in Crawford by restoring the unavailability and cross-examination requirements...

DOUGLAS V. ALABAMA (1965)

Hence, effective confrontation of (Loyd) was possible only if (Loyd) affirmed the statement as his. However, (Loyd) did not do so, but relied on his privilege to refuse to answer. ……………..This case cannot be characterized as one where the prejudice in the denial of the right of cross-examination constituted a mere minor lapse. The alleged statements clearly bore on a fundamental part of the State's case against petitioner. The circumstances are therefore such that "inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.

The Confrontation Blog

This blog is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation and academic commentary.

High Court announces new Confrontation Clause

March 17, 2004, Wisconsin Law Journal

Crawford v. Washington: Confrontation Clause Forbids Admission of Testimonial Out-of-Court Statements Without Prior Opportunity To Cross-Examine

Vol. 40:1, Winter 2005, Harvard Civil Rights - Civil Liberties Law Review

Confrontation Clause Analysis after Crawford v. Washington

Robert Calhoun, Professor of Law, Golden Gate Law School

Refining Crawford:  The Confrontation Clause After Davis v. Washington and Hammon v. Indiana

Andrew C. Fine

Spotlight on the Confrontation Clause

The University of Michigan Law Library

The Cryptographic Coroner’s Report on Ohio v. Roberts

James J. Duane

The Confrontation Clause Re-Rooted and Transformed

Richard D. Friedman,  University of Michigan Law School

Cato Supreme Court Review

Confrontation after Crawford v. Washington

Jessica Smith, Institute of Government, June 2004