United States v. Bailey
581 F.2d 341 (3d Cir. 1978)

GIBBONS, Circuit Judge.... There is no doubt that Stewart's confession was a "written assertion," and thus a "statement" by Stewart, which the government offered at trial to prove the truth of the matters asserted in it. Thus it was hearsay under F.R. Evid. 801(c), and as such was inadmissible unless other rules permitted the statement to be admitted. F.R. Evid. 802.

At trial, the government argued that the confession of Stewart was admissible as a declaration against penal interest, pursuant to Fed. R. Evid. 804(b)(3). The court determined that the requirements of that section had not been met, since the statement had been made by Stewart while he was in custody and after he had been offered a bargain involving dismissal of one count of the indictment against him. The government has not pressed its argument on this point here, and we do not disagree with the trial court.

The trial court grounded the admissibility of the Stewart confession on rule 804(b)(5) of the Federal Rules of Evidence. That rule is one of two "residual" exceptions to the hearsay rule, providing for the admission of evidence even when the traditional requirements for the admission of hearsay are not met.

Prior to the adoption of the Federal Rules of Evidence, the out-of-court confession involved in this case could not have been used against Bailey. Thus we must determine the extent to which the addition of the residual rule of 804(b)(5) has broadened the trial court's discretion in admitting evidence.

The trial court is vested with discretion in its determination whether hearsay evidence afforded by a party meets the requirements of an exception set forth in the Federal Rules of Evidence. Our role, therefore, is to decide whether the trial court abused its discretion in determining that Stewart's confession met all requirements of Rule 804(b)(5).

To be admissible under Rule 804(b)(5), an out-of-court statement must meet the following requirements:

The declarant must be unavailable;

The statement must have circumstantial guarantees of trustworthiness equivalent to the first four exceptions in Rule 804(b);

The statement must be offered as evidence of a material fact;

The statement must be more probative on the point for which it is offered than any other evidence that the proponent reasonably can procure;

Introduction of the statement must serve the interests of justice and the purposes of the Federal Rules;

The proponent of the evidence to be offered must have given his adversary the notice required by the rule.

The history of Rule 804(b)(5) and its counterpart, Rule 803(24), indicates a congressional intention that the rules have a narrow focus. The initial "residual" rule for the introduction of hearsay not covered by one of the specific exceptions to the hearsay rule was phrased by the Advisory Committee as follows:

A statement not specifically covered by any of the foregoing exceptions, but having comparable circumstantial guarantees of trustworthiness.

56 F.R.D. 183, 322 (1972).

After the rules were submitted to Congress, the House Judiciary Committee removed from both Rules 803 and 804 the residual exceptions on the grounds that the rules added too much uncertainty to the law of evidence.(1)

7 The Senate Judiciary Committee reinstated the deleted Advisory Committee residual exceptions in a modified form. The Senate Committee noted its fear that without residual rules of admissibility for hearsay in certain instances, the established exceptions would be tortured in order to allow reliable evidence to be introduced. Further, the new proposed residual rules were drafted to apply only when certain exceptional guarantees of trustworthiness exist and when high degrees of probativeness and necessity are present.(2)8 The Senate Committee further stated that the residual exceptions were to be used only rarely, and in exceptional circumstances. The Senate Report cautioned that "[t]he residual exceptions are not meant to authorize major judicial revisions of the hearsay rules, including its present exceptions."

The House-Senate Conference Committee agreed to include the Senate residual rule with further modifications. Representative Dennis, one of the floor managers of the Federal Rules of Evidence bill, stated in the House debate preceding passage of the bill that the residual rules applied to situations "comparable to the ordinary hearsay exceptions." In his view, the residual rule did not purport to accomplish much at all regarding expansion of traditional rules of evidence. Thus, in reviewing the admissibility of evidence under Rule 804(b)(5), we must keep in mind its limited scope as intended by Congress.

Defendant does not contest the trial judge's finding that Stewart was unavailable, or that the confession was evidence of a material fact--Bailey's identification as one of the bank robbers. Bailey contends, however, that other elements of Rule 804(b)(5) were not satisfied.(3)11 Initially, he argues that the statement cannot be used against him since it was not until after trial had commenced that the government informed him that it would seek to have Stewart's statement introduced.

Before an out-of-court statement can be admitted pursuant to Rule 804(b)(5), the proponent of it must advise the adverse party his intention to use the statement, as well as the "particulars of it, including the name and address of the declarant." The proponent must give notice "sufficiently before trial ... to provide the adverse party with a fair opportunity to meet [the statement]...." The advance notice provision came into being during the House-Senate Conference on the proposed rules.

The debates in Congress and the statements of Rep. William Hungate (Chairman of the House Judiciary Committee Subcommittee on Criminal Justice) indicate some understanding that the requirement of advance notice was to be strictly followed.

We believe that the purpose of the rules and requirement of fairness to an adversary contained in the advance notice requirement of Rule 803(24) and Rule 804(b)(5) are satisfied when, as here, the proponent of the evidence is without fault in failing to notify his adversary prior to trial and the trial judge has offered sufficient time, by means of granting a continuance, for the party against whom the evidence is to be offered to prepare to meet and contest its admission....

Bailey also argues that Stewart's confession failed to meet the requirement that the evidence to be admitted pursuant to Rule 804(b)(5) must possess "guarantees of trustworthiness" equivalent to the other enumerated exceptions under Rule 804(b). We find this contention convincing.

The specific hearsay exceptions of Rule 804(b) include those for former testimony, dying declarations, statements against interest, and statements of family background or history. Each of these kinds of statements is admissible, though hearsay, because the circumstances in which the statements are made are indicative of a strong propensity for truthfulness (dying declarations), because there has been a previous opportunity for cross-examination (former testimony), or because the contents of the statements themselves are of such a nature that one reasonably would conclude that the speaker was telling the truth (statements against interest, statements of family history).(4)12

The trial judge determined the reliability of the hearsay statement on the evidence that the bank robbers fled the crime in Bailey's girlfriend's car. Since the statement mentioned that Stewart and Bailey traveled to Aliquippa in the car, the trial judge held that Stewart's statement possessed sufficient indicia of reliability to justify its admission pursuant to 804(b)(5). We believe that the recitation of this single factor does not satisfy the requirement that the statement to be offered in evidence have "circumstantial guarantees of trustworthiness" equivalent to the other 804(b) exceptions. Indeed, if Stewart had borrowed the car from Bailey and had committed the robbery with another, the bargain he struck with the authorities provided him with the opportunity to sidetrack the investigation and protect his accomplice by naming Bailey, a plausible suspect, as his partner in the robbery.

We do not feel that the trustworthiness of a statement offered pursuant to the rule should be analyzed solely on the basis of the facts corroborating the authenticity of the statement. Since the rule is designed to come into play when there is a need for the evidence in order to ascertain the truth in a case, it would make little sense for a judge, in determining whether the hearsay is admissible, to examine only facts corroborating the substance of the declaration. Such an analysis in effect might increase the likelihood of admissibility when corroborating circumstances indicate a reduced need for the introduction of the hearsay statement. We do not believe that Congress intended that "trustworthiness" be analyzed in this manner. Rather, the trustworthiness of a statement should be analyzed by evaluating not only the facts corroborating the veracity of the statement, but also the circumstances in which the declarant made the statement and the incentive he had to speak truthfully or falsely. Further, consideration should be given to factors bearing on the reliability of the reporting of the hearsay by the witness.

In United States v. Medico, 557 F.2d 309 (2d Cir. 1977), the court held that circumstantial degrees of trustworthiness justified the admission of an unknown bystander's report of the license plate of a fleeing automobile used by escaping bankrobbers. The bystander shouted the numbers out from the street to another bystander, who was stationed next to the locked door of the bank. The bystander near the door relayed the information into the bank to an employee who transcribed the description and tag number of the car. In assessing the reliability of the hearsay, the court looked to the opportunity of the declarants to observe, the amount of time for the information to be relayed to the bank employee, and the potential for misidentification or fabrication, determining that the situation in which the statements were offered provided a guarantee of trustworthiness on a par with the enumerated 804(b) exceptions.

In United States v. Gomez, 559 F.2d 1271 (5th Cir. 1977), the court held that the grand jury testimony of a witness who had refused to take the stand at trial was not admissible, because the circumstances in which he gave his grand jury testimony did not measure up to the trustworthiness requirement of Rule 804(b)(5). In that case, the witness had been convicted and had been granted immunity in order to compel him to testify before the grand jury. Since the government had made the witness aware that he could be subjected to an unlimited number of contempt proceedings if he failed to testify, and since the witness was in fear of retaliation against himself and his family if he did testify, the court found that his responses to leading questions before the grand jury failed to pass the trustworthiness test of Rule 804(b)(5).(5)13

In this case, the circumstances under which Stewart provided his statement implicating Bailey do not inspire confidence in its reliability. First, as we have discussed, the statement was made during negotiations for reduction of charges lodged against Stewart. Secondly, the statements were made in a face-to-face meeting with two FBI agents. Further, the statement was not made under oath and its veracity had not been tested, certainly not by cross-examination. Finally, the fact relied upon by the trial judge as corroborating Stewart's confession, the identification of the car, does not provide a sufficient degree of reliability to justify the statement's introduction. Thus we feel that the trial judge's determination as to the trustworthiness of the statement was an abuse of his discretion, since the assertions in the statement and the circumstances in which the statement was given do not provide guarantees of trustworthiness equivalent to the other Rule 804(b) exceptions that serve as a benchmark for Rule 804(b)(5).

We also have grave doubts about the propriety of introducing Stewart's confession in light of clause (C) of 804(b)(5), which requires that "the general purpose of [the Federal Rules of Evidence] and the interests of justice will best be served by [the] admission of the statement into evidence." Although we do not reach the constitutional issue raised in this case, we are concerned with the relationship between the Confrontation Clause of the Sixth Amendment and the admissibility of this evidence under the Federal Rules of Evidence. In drafting the proposed rules submitted to Congress, the Advisory Committee provided leeway in order to insure that the rules did not collide with the Confrontation Clause. Thus, in analyzing the admissibility of evidence pursuant to Rule 804(b)(5), a court should exercise its discretion in order to avoid potential conflicts between confrontation rights and this hearsay exception.

The use of Stewart's confession at Bailey's trial raises difficult constitutional issues, and we have doubts whether, in light of the lack of cross-examination, the questionable reliability of the statement on the record before us, and the devastating impact of the statement, admission of this statement could pass constitutional muster. Thus, in evaluating the purpose of the rules under 804(b)(5)(C), the better course would have been for the trial judge to have exercised his discretion under the rules not to admit the evidence.

Although we have mentioned the values protected by the Confrontation Clause, we expressly do not base our decision to reverse Bailey's conviction on constitutional grounds. At present, the state of this aspect of the Sixth Amendment is unsettled, and its future path has been a matter of some commentary. Our decision is based on the failure of Stewart's statement implicating Bailey to satisfy the requirements of Rule 804(b)(5).

The judgment of the district court will be reversed and remanded for a new trial.

1. 7. The committee noted that some leeway was provided for the courts by Rule 102, which could cover the anomalous situation calling for admission of hearsay not covered by an enumerated exception. Rule 102 states:

"These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.''

The House Committee also stated that "if additional hearsay exceptions are to be created, they should be by amendments to the Rules, not on a case-by-case basis.'' H.R. Rep. No. 650, 93d Cong. 2d Sess. (1973), reprinted in [1974] U.S. Code Cong. & Admin. News, pp.7051, 7079.

2. 8. The Committee cited as an appropriate example the case of Dallas County v. Commercial Union Assoc. Co., Ltd., 286 F.2d 388 (5th Cir. 1961). In that case, the court allowed into evidence a copy of a newspaper article describing a fire in a county courthouse fifty years prior to the collapse of the courthouse tower. The insurer offered this evidence in order to show that certain charred wood found in the ruins might not have been the product of lightning striking the courthouse and causing its collapse, as the county contended. The article, however, would have supported the insurer's proposition that the tower collapsed because of deterioration and disrepair. In allowing the evidence to be admitted, the court considered the inconceivability of the unknown reporter fifty years previously writing about a fire if one had not in fact occurred. See S. Rep. No. 1277, 93d Cong. 2d Sess. (1974) reprinted in [1974] U.S. Code Cong. & Admin. News at 7065-66.

3. 11. One of Bailey's contentions is that Stewart's statement was not "more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.'' F.R. Evid. 804(b)(5)(B). We disagree. Although the government made an effort to place Bailey in the bank during the robbery through the identification testimony of prosecution witnesses, none were able to state positively that they recognized Bailey at trial as the second bank robber. We feel the trial judge did not abuse his discretion in resolving this issue.

4. 12. As originally submitted to Congress, the proposed Federal Rules contained an additional exception for statements of recent perception. The House Committee, however, deleted this rule on the grounds that statements of the type encompassed within this exception did not bear "sufficient guarantees of trustworthiness to justify admissibility.'' We think that an awareness of Congress' deletion of proposed Rule 804(b)(2) provides some guidance in determining whether a statement offered under Rule 804(b)(5) possesses guarantees of trustworthiness equivalent to those 804(b) exceptions included in the final version of the federal rules.

5. 13. In United States v. Carlson [547 F.2d 1346 (8th Cir. 1976)], the Eighth Circuit held admissible statements by a grand jury witness who refused to testify at trial. There the court focused on the fact that the declarant had been under oath at the time of making the statements, and that when informing the trial judge of his refusal to testify later, the declarant stated that he had told the truth to the grand jury. See also United States v. West, 574 F.2d 1131 (4th Cir. 1978) (trustworthiness found in deceased declarant's grand jury testimony because close supervision of his activities as undercover informant rendered deception of agents "substantially impossible'').


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