Criminal Justice Section  


Criminal Justice Magazine
Fall 2001
Volume 16, Issue 3

Trial Tactics

Stephen A. Saltzburg

Declarations Against Interest

It has been seven years since the United States Supreme Court decided Williamson v. United States, 512 U.S. 594. The decision addressed the proper interpretation of Rule 804(b)(3) of the Federal Rules of Evidence with respect to when a statement is sufficiently against interest to be admitted against a third party in a criminal case. Subsequently, the Supreme Court examined the relationship between declarations against interest and the Confrontation Clause in Lilly v. Virginia, 527 U.S. 116 (1999). The importance of declarations against interest in criminal cases is clear to all lawyers and judges. It is the hearsay exception that holds out the promise of using one person’s confession or admission against another party—usually the defendant.

Anything that the defendant has said can be admitted on behalf of the prosecution as an admission. The declaration against interest exception is not needed to admit the statements of a party against that party; statements are admissible whether or not they really concede anything and even when they are self-serving. Because of the long-standing rule of Bruton v. United States, 391 U.S. 123 (1968), one nontestifying defendant’s confession cannot be used against another defendant without violating the Confrontation Clause. Since the declaration against interest exception generally requires a showing that the declarant is unavailable, it has the potential to admit the very confessions that Bruton excludes. That is why the exception is potentially so important, and why it is worth a careful look. We begin in this column with the focus on Williamson and turn in the next column to Lilly.

Although Williamson is a federal decision interpreting the Federal Rules of Evidence, it has been followed by some state courts with similar rules. Examples are State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996); People v. Newton, 940 P.2d 1065 (Colo. 1996); State v. Matusky, 343 Md. 467, 682 A.2d 694 (1996).

The Williamson facts

Reginald Harris was stopped by a deputy sheriff for weaving on the highway. The deputy asked for and received consent to search the car, which revealed 19 kilograms of cocaine in two suitcases in the trunk. Harris was arrested.

Shortly after the arrest, DEA Agent Donald Walton interviewed Harris by telephone. Harris confessed that he was transporting cocaine and claimed he’d gotten it from an unidentified Cuban in Fort Lauderdale. He also stated that the cocaine belonged to Fredel Williamson and that he was supposed to deliver it that night to a particular garbage container.

Agent Walton met with Harris the same day and interviewed him in person. Harris revealed that he had rented the car and driven it to Fort Lauderdale to meet Williamson. He repeated what he’d said in the telephone conversation, stating that he had gotten the cocaine from a Cuban. But this time he said the Cuban was an acquaintance of Williamson and not only had the Cuban put the cocaine in the car, but he also gave Harris a note telling him how to deliver the drugs. Once the drugs were delivered, Harris claimed he had been instructed to leave without waiting for anyone to pick up the drugs.

Thinking the drugs might still be deliverable, Walton began planning a controlled delivery of the cocaine. But before Walton could leave the interview room, Harris confessed he had lied. There was no Cuban. He had been transporting the cocaine for Williamson to Atlanta with Williamson leading the way in another rental car. Harris claimed Williamson had turned back and seen the police stop, making a controlled delivery impossible.

Harris claimed that he lied because he feared Williamson. As a result, he refused to sign a statement or consent to a recorded version of his statement.

As important as Harris’s statement was to the prosecution, it was not the only evidence against Williamson. There was physical evidence connecting Harris to Williamson: The luggage in Harris’s car bore the initials of Williamson’s sister, Harris’s rental car agreement listed Williamson as an additional driver, and in Harris’s glove compartment were an envelope addressed to Williamson and a receipt with the address of Williamson’s girlfriend.

The trial and appeal

Williamson was charged with possessing cocaine with intent to distribute, conspiring to possess cocaine with intent to distribute, and traveling interstate to promote the distribution of cocaine. Harris was called as a government witness, but refused to testify. He maintained his refusal even after the prosecution gave him use immunity and the court ordered him to testify and eventually held him in contempt.

Walton was also called as a witness. He testified about Harris’s statements and swore that he had promised Harris no reward or other benefit for cooperating other than to report any cooperation by Harris to the prosecutor.

The district court admitted Harris’s statements as declarations against interest, finding that they were against Harris’s penal interest, Harris was unavailable, and the declarations were corroborated sufficiently to be considered trustworthy. Williamson was convicted on the charges.

On appeal to the United States Court of Appeals for the Eleventh Circuit, the court affirmed the convictions without opinion in a judgment order. (981 F.2d 1262 (1992).) The U.S. Supreme Court granted review.

The threshold question

Federal Rule of Evidence 804(b)(3) reads as follows:

(b) Hearsay exceptions.—The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:* * *

(3) Statement against interest.—A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

The threshold question for the Court was how to define a "statement" for purposes of the Rule. Justice O’Connor wrote for a majority as follows:

To decide whether Harris’s confession is made admissible by Rule 804(b)(3), we must first determine what the Rule means by "statement," which Federal Rule of Evidence 801(a)(1) defines as "an oral or written assertion." One possible meaning, "a report or narrative," Webster’s Third New International Dictionary 2229, defn. 2(a) (1961), connotes an extended declaration. Under this reading, Harris’s entire confession—even if it contains both self-inculpatory and non-self-inculpatory parts—would be admissible so long as in the aggregate the confession sufficiently inculpates him. Another meaning of "statement," "a single declaration or remark," ibid., defn. 2(b), would make Rule 804(b)(3) cover only those declarations or remarks within the confession that are individually self-inculpatory. See also id., at 131 (defining "assertion" as a "declaration"); id., at 586 (defining "declaration" as a "statement").(512 U.S. at 599.)

A majority of the Court reasoned that the text of the rule did not provide a clear answer. But to the extent that it suggested anything, it pointed to a narrow reading of the exception because the rule "is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true." ( Id.) In short, the majority reasoned that "[t]he fact that a person is making a broadly self- inculpatory confession does not make more credible the confession’s non-self-inculpatory parts," because "[o]ne of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature." ( Id. at 599–600.) Thus, the majority concluded that the rule cannot be read to admit "collateral statements" that are in no way against the declarant’s interest.

Justice Kennedy, joined by Chief Justice Rehnquist and Justice Thomas, wrote an opinion concurring in the judgment but dissenting from the majority’s approach to collateral statements. Justice Kennedy found that the Advisory Committee’s note to Rule 804(b)(3), the common law, and good judgment about what Congress intended all suggested that "some collateral statements are admissible." ( Id. at 614.) Justice Kennedy’s concern about the majority’s opinion is that its approach deprived the exception of "meaningful effect" because it excluded too many statements.

The majority read the Advisory Committee’s note differently from Justice Kennedy, but in the end concluded that the policy reflected in the text of the rule was more important. The majority took vigorous exception to the charge that it was eviscerating the rule. ( Id. at 603.) It offered examples to prove that the rule remained important in criminal cases.

For instance, a declarant’s squarely self-inculpatory confession—"yes, I killed X"—will likely be admissible under Rule 804(b)(3) against accomplices of his who are being tried under a co-conspirator liability theory. See Pinkerton v. United States, 328 U.S. 640, 647 (1946). Likewise, by showing that the declarant knew something, a self-inculpatory statement can in some situations help the jury infer that his confederates knew it as well. And when seen with other evidence, an accomplice’s self-inculpatory statement can inculpate the defendant directly: "I was robbing the bank on Friday morning," coupled with someone’s testimony that the declarant and the defendant drove off together Friday morning, is evidence that the defendant also participated in the robbery.

Moreover, whether a statement is self-inculpatory or not can only be determined by viewing it in context. Even statements that are on their face neutral may actually be against the declarant’s interest. "I hid the gun in Joe’s apartment" may not be a confession of a crime; but if it is likely to help the police find the murder weapon, then it is certainly self-inculpatory. "Sam and I went to Joe’s house" might be against the declarant’s interest if a reasonable person in the declarant’s shoes would realize that being linked to Joe and Sam would implicate the declarant in Joe and Sam’s conspiracy.( Id.)

Justice Scalia added a concurring opinion to bolster the point that Rule 804(b)(3) is hardly toothless in criminal cases under the majority’s approach:

Consider, for example, a declarant who stated: "On Friday morning, I went into a gun shop and (lawfully) bought a particular type of handgun and particular type of ammunition. I then drove in my 1958 blue Edsel and parked in front of the First City Bank with the keys in the ignition and the driver’s door ajar. I then went inside, robbed the bank, and shot the security guard." Although the declarant has not confessed to any element of a crime in the first two sentences, those statements in context are obviously against his penal interest, and I have no doubt that a trial judge could properly admit them.

Moreover, a declarant’s statement is not magically transformed from a statement against penal interest into one that is inadmissible merely because the declarant names another person or implicates a possible codefendant. For example, if a lieutenant in an organized crime operation described the inner workings of an extortion and protection racket, naming some of the other actors and thereby inculpating himself on racketeering and/or conspiracy charges, I have no doubt that some of those remarks could be admitted as statements against penal interest. Of course, naming another person, if done, for example, in a context where the declarant is minimizing culpability or criminal exposure, can bear on whether the statement meets the Rule 804(b)(3) standard.( Id. at 606–07.)

The main difference between Justice O’Connor’s majority view and Justice Kennedy’s separate view appears to focus on statements in which a declarant admits his or her own culpability and also makes statements about someone else’s culpability. Justice Scalia’s separate opinion suggests that some such statements are admissible as declarations against interest. Justice O’Connor is less explicit.

Application of the rule

Having decided the threshold question of how to define a statement, the Court went on to decide how its analysis ought to be applied to the facts of the Williamson case. Justice O’Connor, who was joined by Justice Scalia, but not by Justices Blackmun, Stevens, Ginsburg, and Souter, decided that not "all that Harris said was properly admitted," and that "the parts that implicated Williamson did little to subject Harris himself to criminal liability." ( Id. at 604.) Justice O’Connor noted that Harris might have thought that implicating someone else might decrease his practical exposure to criminal liability. ( Id.) Ultimately, she opted for a remand to the lower courts for a "fact-intensive inquiry, which would require careful examination of all the circumstances surrounding the criminal activity involved." ( Id.)

Justice Ginsburg, joined by Justices Blackmun, Stevens, and Souter, wrote separately to indicate agreement with the majority opinion on all issues except the decision to remand the case for the fact-intensive inquiry. Justice Ginsburg first agreed with Justice O’Connor about the incentives for a declarant to downplay his or her own role in criminal activity in comparison to others, and then went on to reason as follows:

Unlike Justice O’Connor, however, I conclude that Reginald Harris’ statements, as recounted by Drug Enforcement Administration (DEA) Special Agent Donald E. Walton, do not fit, even in part, within the exception described in Rule 804(b)(3), for Harris’ arguably inculpatory statements are too closely intertwined with his self-serving declarations to be ranked as trustworthy. Harris was caught red-handed with 19 kilos of cocaine—enough to subject even a first-time offender to a minimum of 12 years’ imprisonment. See United States Sentencing Commission, Guidelines Manual § 2D1.1(c) (1993); id., ch. 5, pt. A (sentencing table). He could have denied knowing the drugs were in the car’s trunk, but that strategy would have brought little prospect of thwarting a criminal prosecution. He therefore admitted involvement, but did so in a way that minimized his own role and shifted blame to petitioner Fredel Williamson (and a Cuban man named Shawn).( Id. at 608.)

Justice Kennedy, joined by Chief Justice Rehnquist and Justice Thomas, cast three votes along with the two of Justices O’Connor and Scalia for a remand. Justice Kennedy agreed that Rule 804(b)(3) often requires "a difficult, fact-bound determination" and suggested that district courts are much better able to make that determination than appellate courts. ( Id. at 621.) Thus, five votes were cast for a fact-finding remand.


First, the key difference between the Justices in Williamson appears to turn on whether an arrestee who confesses and mentions a third person is always currying favor with the police or seeking to diminish his or her own criminal responsibility. Justice O’Connor, Justice Scalia, and the four Justices who joined in Justice Ginsburg’s opinion all concluded that references by Harris to Williamson either did little or nothing to subject Harris to criminal liability and tended to diminish the level of his personal responsibility. Another way of looking at the problem would be to say that, to the extent that he confessed knowing who controlled the drugs, Harris established his own knowing and intentional involvement to a significant extent. It is unclear whether such a line of reasoning is foreclosed by the Court or whether a lower court could, by way of fact finding, engage in such reasoning.

Second, the majority never directly responds to Justice Kennedy’s argument that permitting some collateral statements to be admitted together with declarations against interest is more consistent with the common law than is the majority’s rule. The absence of a majority expression with respect to the common law may be significant in Confrontation Clause cases. Had the majority concluded that its narrow approach to declarations against interest was the traditional or long-standing approach, it would have made it difficult for states to adopt the Justice Kennedy approach without offending the Confrontation Clause. If, however, Justice Kennedy is correct about the common law, states have some leeway to depart from the Supreme Court’s approach to declarations against interest without raising serious constitutional questions.

Third, the burden will be on the proponent of a declaration to demonstrate why it should be viewed as against interest. The opponent is likely to point out all possible reasons why a statement might have been self-serving. It is important to recall that under rules like Fed. R. Evid. 104(a), a trial judge decides an evidence battle that involves disputed facts by making findings of fact—usually by a preponderance of the evidence following the Supreme Court’s decision in Bourjaily v. United States, 483 U.S. 171 (1987). Either party—the proponent or the opponent—is entitled to ask the trial judge to consider inadmissible evidence in making a Rule 104(a) ruling. Thus, any statements that Harris made to anyone regarding his arrest or his interviews could be considered when a trial judge decides whether his statements were against penal interest when made.

Fourth, there is some question as to what a lay-person should be deemed to know about the law when the question is asked whether a statement was against penal interest when made. For example, Harris admitted that he lied to a federal officer. This is a separate crime that did not involve Williamson at all. Should it matter in evaluating whether his statements were against penal interest that Harris admitted lying and thus exposed himself to additional criminal liability? If it should matter, is it possible to consider Harris’s statement that he lied without including the subject matter of his lying, which involves Williamson? It is difficult to know the answer to these questions, in part because it is unclear whether Harris knew at the time he confessed to lying that it was a federal crime to lie to a law enforcement officer.


Stephen A. Saltzburg is the Howrey Professor of Trial Advocacy, Litigation, and Professional Responsibility at George Washington University Law School in Washington, D.C. He is a contributing editor to Criminal Justice magazine and a member of the Section Council.

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