Undermining the Role of the Jury?

Third Circuit Limits Application of the Statement Against Penal Interest Exception to the Hearsay Rule

The right against self-incrimination is a cornerstone of American jurisprudence, spelled out in the Fifth Amendment to the United States Constitution. In practice, the right against self-incrimination often comes into conflict with the justice system's objective of holding the proper person accountable, and a defendant's desire to present evidence that someone else confessed to the crime he or she is charged with committing.

This tension recently came into focus in Staruh v. Superintendent Cambridge Springs SCI, a Third Circuit Federal Court of Appeals case coming out of Cumberland County, Pennsylvania. Ron Krauss, a contributor to the Federal Defender Third Circuit Blog, summarized the facts of the case as follows:

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.

Upholding the trial court's finding that Mom was guilty of third degree murder, the Third Circuit also questioned the reliability of Grandmom's confession, describing it as a "justice-subverting ploy" that "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.'"

The problem with excluding evidence of Grandmom's confession is that it undermines the hearsay exception that permits the introduction of evidence of someone making a statement against their own penal interest and, to an extent, takes the case out of the hands of the jury. As Matthew Stiegler wrote on his CA3Blog:

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.

The central and most perplexing question, then, is "When is hearsay evidence of a third party confessing to a crime reliable enough to be introduced at trial?" A jury should be allowed to hear testimony on this issue and determine the reliability of the alleged confession. Indeed, the underlying rationale for the statement against penal interest exception to the hearsay rule is that, unlike in the movies or on TV, the true perpetrator is unlikely to repeat a confession in open court.

For a more detailed review of the relevant evidence rules and, specifically, the statement against penal interest exception to the hearsay rule, read the full article by Ron Krauss, "Did the Third Circuit Intend to Severely Narrow the Statement-Against-Penal-Interest Hearsay Exception, and to Encourage New Investigation in Habeas Proceedings?"