Did the Third Circuit Intend to Severely Narrow the Statement-Against-Penal-Interest Hearsay Exception, and to Encourage New Investigation in Habeas Proceedings?
Navigating through some murky jurisprudential waters, the Third Circuit may have steered a bit off course, and unnecessarily so. In a precedential opinion issued without oral argument, Staruh v. Superintendent Cambridge SpringsSCI, No. 15-1650 (3d Cir. June 30,2016), the Third Circuit seems to have ruled that a third-party’s extra-judicial exculpatory confession is admissible only when the declarant is available to testify, even though the statement-against-penal-interest hearsay exception, by its terms, applies when the declarant is not available to testify. See, e.g., Fed. R. Evid. 804(b)(3). Before discussing the specifics of the case, a nutshell discussion of relevant law may prove useful.
The Supreme Court has recognized that state evidentiary rules that categorically exclude hearsay evidence—when critical to the defense and with persuasive assurances of trustworthiness—can violate due process. In Chambers v. Mississippi, 410 U.S. 284 (1973), a state hearsay rule precluded defendant from introducing testimony of witnesses to whom a third person had confessed to committing the murder for which Chambers was on trial. The court noted that the hearsay statements bore substantial assurances of trustworthiness having been made spontaneously to a close acquaintance shortly after the murder, the confessions were corroborated by other evidence (including their sheer number), and each confession was self-incriminating and against self-interest. Id. at 300-01. The Court concluded that "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Id. at 302. But Chambers does not go so far as to hold that a defendant is denied a fair opportunity to defend himself whenever a state rule excludes favorable evidence, see United States v. Scheffer, 523 U.S. 303, 316 (1998); nor does Chambers undermine a state’s “broad latitude . . . to establish rules excluding evidence from criminal trials." Holmes v. South Carolina, 547 U.S. 319, 324 (2006). Those cases do not require that a trial court must allow the admission of untrustworthy hearsay statements as evidence of third party guilt to satisfy the Constitution. It is categorically excluding evidence under evidentiary rules that "infring[e] upon a weighty interest of the accused" or "that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote" that violates due process. Holmes, Holmes v. South Carolina, 547 U.S. 319, 324, 326 (2006).
In Staruh, Defendant Mom was charged with first and third degree murder in the blunt-force-trauma death of her three-year old child. About two years after the child’s death, Defendant’s mother (Grandmom), with whom Defendant’s family lived, pleaded guilty to endangering the welfare of a child based upon the conditions of her home, and specifically denied abusing the child. But about one year later, just before Mom’s trial, Grandmom confessed to Mom’s investigator on more than one occasion that she had abused the child, killing him, and that Mom did not abuse him. When served with a subpoena to testify at Mom’s trial, Grandmom told the investigator that Mom “is innocent but my Attorney said I could get in trouble if I say this in court so I can’t.”
At trial, the defense focused on Grandmom as the perpetrator. Outside the jury’s presence, defense counsel called her as a witness, but she stated that she would assert her Fifth Amendment privilege not to testify. Defense counsel requested permission to force Grandmom to assert her Fifth Amendment privilege in front of the jury, which the trial court denied. Defense counsel then requested permission to call the investigator as a witness to testify to Grandmom’s exculpatory hearsay confessions as a statement against penal interest, because, as the evidentiary rule required, Grandmom was now unavailable to testify. The trial court denied this request, finding that the statement was “blatant hearsay” and that it was not “trustworthy.” The jury acquitted Mom of first-degree murder, but found her guilty of, among other things, third-degree murder, and she was sentenced to a prison term of 18 to 40 years.
On appeal to the Pennsylvania Superior Court, Mom argued that the trial court erred in excluding the investigator’s testimony as to Grandmom’s hearsay confession, since her invocation of the Fifth Amendment made her unavailable to testify. The Superior Court affirmed, holding that the circumstances of Grandmom’s confession did not provide sufficient assurance of reliability, because she confessed for the first time just days before Mom’s trial, she did not sign a confession, she never intended to be held accountable for her statements, and she would benefit from confessing by her daughter’s acquittal. Mom’s PCRA Petition, raising the same issue, was dismissed.
Mom’s Section 2254 habeas petition raised again the trial court’s error in excluding the investigator’s testimony concerning Grandmom’s confession. The Magistrate Judge determined that the Superior Court reasonably concluded that Grandmom’s exculpatory statements were not sufficiently reliable, noting that her refusal to testify rendered her unavailable for cross-examination, thus distinguishing this case from Chambers v. Mississippi, 410 U.S. 284 (1973), in which the Court emphasized the availability of the declarant for purposes of cross-examination. The District Court adopted the Magistrate’s Report, reasoning that, unlike Chambers, Grandmom was unavailable for cross-examination, her extrajudicial exculpatory statement was uttered on the eve of trial, and it could not be confirmed by other evidence.
Having granted a certificate of appealability respecting the Chambers issue, the Third Circuit affirmed, denying habeas relief. The Court, noting that that Grandmom maintained her innocence for more than two years after the murder, determined that Grandmom’s confessions had “no indicia of credibility” because she asserted her Fifth Amendment privilege “hoping to prevent her daughter from being convicted of murder by confessing to the crime, while at the same time avoiding criminal liability herself. . . . This appears to be a ‘justice-subverting ploy’ that provides the justification for requiring indicia of truthfulness.”
Rather than re-invent the wheel, I will include here commentary on this case by habeas/appellate star Matthew Stiegler (www.StieglerLaw.com) in his always perceptive CA3Blog (http://thirdcircuitblog.com), who proffered this astute analysis of the Court’s opinion:
I question the court’s reasoning. Maybe the grandmom was lying to protect the mom. It’s possible. But it’s also possible that grandmom was the real murderer, her repeated and detailed and never-repudiated confession was the truth, and her refusal to affirm it was choosing her own freedom over the mom’s. The court’s certainty about which possibility is the truth, seemingly arrived at with no subsequent evidence or fact-finding about grandmom’s actual motivations, seems unwarranted. That seems like a choice for juries allowed to hear all the facts, not appellate courts.
In the opinion’s most dangerous passage, the court stated in a footnote that the grandmother’s unwillingness to testify “is extremely probative of the truth of her statements.” Read broadly, this language is nothing less than a repudiation of the penal-interest hearsay exception. The whole reason defendants like the mother seek to get in hearsay statements against penal interest is that the alternate perpetrator isn’t willing to repeat the confession in court. If the hearsay is never reliable enough when the declarant won’t testify at trial, then the penal-interest rule is an umbrella you can use only when it’s not raining. I hope that the court clarifies this critical point on rehearing or in a future case.
Curiously, in a footnote, the Court noted as significant that Mom’s counsel, in the habeas proceeding, did not “obtain an affidavit from [Grandmom] reaffirming her confession at any point during the federal habeas proceeding, casting further doubt on its truthfulness.” But wouldn’t such an affidavit would violate the Court’s admonition that “the evidence against which a federal court measures the reasonableness of the state court's factual findings is the record evidence at the time of the state court's adjudication.” Rountree v. Balicki, 640 F.3d 530, 538 (3d Cir. 2011). In any event, this opinion strongly suggests that practitioners should consider undertaking new investigation in habeas proceedings.