Christopher B. Mueller, Lindsley Professor of Law

University of Colorado School of Law

Updating Evidence Practice

Under the Rules (2d ed 1999)

Updated 10AM MST Thursday August 5, 1999


§8.75. -- Penal Interest (Statements Implicating Defendant)

[On page 1056 of the main volume, insert the following new text after the second paragraph, which ends in the phrase "the nature of the speaker's interest:]

In the Lilly case decided in June 1999, the Court considered the question whether applying the against-interest exception to admit third-party statements implicating the accused violated the confrontation clause. In its decision five years earlier in Williamson v. United States, 512 U.S. 594 (1994), the Court had avoided this question. Lilly involved an appeal from a state conviction for robbery and murder, where the trial court admitted against defendant Ben Lilly a confession by his brother Mark, given to police after his arrest, saying Ben was the one who murdered Alex. ("Ben shoots him," Mark said, answering "Pistol" when asked what Ben shot him with and "a couple of shots" when asked how many times Ben shot him.) In Lilly, four-member plurality of the Court concluded that the against-interest exception was not "firmly rooted" for purposes of the Confrontation Clause, when applied to a confession implicating the accused. Here is the heart of the plurality’s opinion in Lilly:

. . . [T]he Commonwealth’s asserted guarantees of trustworthiness fail to convince us that Mark’s confession was sufficiently reliable as to be admissible without allowing [Ben] to cross-examine him. 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.’" Idaho v. Wright, 497 U.S. 805, at 822 (1990). In Wright, we . . . refused to allow the State to "bootstrap on" the trustworthiness of other evidence. "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."

Nor did the police’s informing Mark of his Miranda rights render the circumstances surrounding his statements significantly more trustworthy. We . . . believe that a suspect’s consciousness of his Miranda rights has little, if any, bearing on the likelihood of truthfulness of his statements. When a suspect is in custody for his obvious involvement in serious crimes, his knowledge that anything he says may be used against him militates against depending on his veracity.

The Commonwealth’s next proffered basis for reliability -- that Mark knew he was exposing himself to criminal liability -- merely restates the fact that portions of his statements were technically against penal interest. And as we have explained, such statements are suspect insofar as they inculpate other persons. "[T]hat a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-self-inculpatory parts." Williamson v. United States, 512 U.S. 594, at 599 (1994). Similarly, the absence of an express promise of leniency to Mark does not enhance his statements’ reliability to the level necessary for their untested admission. The police need not tell a person who is in custody that his statements may gain him leniency in order for the suspect to surmise that speaking up, and particularly placing blame on his cohorts, may inure to his advantage.

It is abundantly clear that neither the words that Mark spoke nor the setting in which he was questioned provides any basis for concluding that his comments regarding petitioner’s guilt were so reliable that there was no need to subject them to adversarial testing in a trial setting. Mark was in custody for his involvement in, and knowledge of, serious crimes and made his statements under the supervision of governmental authorities. He was primarily responding to the officers’ leading questions, which were asked without any contemporaneous cross-examination by adverse parties. Thus, Mark had a natural motive to attempt to exculpate himself as much as possible. Mark also was obviously still under the influence of alcohol. Each of these factors militates against finding that his statements were so inherently reliable that cross-examination would have been superfluous.

See Lilly v. Virginia, 1999 WL 373136 , 119 S.Ct. 1887 (1999).

Unfortunately the meaning of Lilly is clouded: Two Justices wrote lone opinions in which each concurred with the four-member plurality only in the bare conclusion that admitting Mark’s statement violated Ben’s confrontation rights. Three others, in a separate concurring opinion by Chief Justice Rehnquist, said third-party custodial statements that were "genuinely self-inculpatory" while also implicating the defendant could be used, and it is possible that one or more of the "loners" would agree on this point.

In a sense, Lilly added little to Williamson. In both cases, the speaker was an accomplice talking to law enforcement personnel at or after the time of arrest, so he was motivated to "curry favor" with authorities. Such statements can only rarely survive scrutiny, which means that Lilly (like Williamson), is an "easy case" for excluding the statement, and all Justices in both cases agreed on this outcome.

In another sense, Lilly surely is significant. Unlike Williamson, Lilly limits what state courts can do with their versions of the against-interest exception. Even if only four Justices endorse the proposition the constitution requires a special inquiry into trustworthiness (where corroboration doesn’t count), while three others (maybe four or five) would allow courts sometimes to admit custodial third-party confessions implicating the accused, the fact that all nine Justices found a violation of defense confrontation rights will make prosecutors and courts everywhere hesitant to admit such statements. In the end, it seems that an statement by a third person implicating the accused sometimes does and sometimes does not fit the against-interest exception, and that constitutional issues arise in this setting.


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