Rethinking the Limits of the Interpretive Maxim of Constitutional Avoidance: The Case Study of the Corroboration Requirement for Inculpatory Declarations Against Penal Interest (Federal Rule of Evidence 804(b)(3))

Edward J Imwinkelried


"If adhering to this canon of construction [to preserve the constitutionality of an act] is torturing a word, then we all must be prepared to occasionally inflict forty lashes."

In re Hathaway

At trial, the Defense calls Witness A. On direct examination, the Defense attempts to elicit Witness A's description of an out-of-court statement by Declarant B that tends to exculpate the Accused C. The Prosecutor objects on hearsay grounds. The Defense argues that Declarant B's statement qualifies as a declaration against her penal interest under Federal Rule of Evidence 804(b)(3). At the time of the statement, Declarant B should have realized that the statement exposed her to criminal liability, and Declarant B is unavailable to testify at trial. The Prosecution concedes both the disserving quality of the statement and B's unavailability at trial. However, the Prosecution points out that the statute requires the Defense to also establish "corroborating circumstances clearly indicat[ing] the trustworthiness of the statement." The Defense admits that there is no independent corroboration for Declarant B's statement. The trial judge rules as a matter of law that B's statement is inadmissible.

Now the tables are turned. The Prosecution calls Witness D. On direct examination, the Prosecution endeavors to introduce D's description of an out-of- court statement by Declarant E that tends to inculpate the Accused. Now the Defense objects on hearsay grounds. Like the Defense in the prior hypothetical, the Prosecutor argues that Declarant E's statement qualifies as a declaration against penal interest. Like Declarant B's statement, Declarant E's statement was contrary to E's penal interest when he made it; and like B, E is unavailable as a witness at trial. Like the Prosecutor in the prior hypothetical, the Defense now contends that the judge should require corroboration of "the trustworthiness of the statement" as a condition to admitting testimony about E's statement. However, the Prosecutor properly points out that the statute, Rule 804(b)(3), requires corroboration only in the case of statements "offered to exculpate the accused.' Consequently, the trial judge overrules the objection and permits the introduction of D's testimony.

At first blush, the differing outcomes seem unfair in the extreme. One tenet of the adversary system is the principle that rules such as evidence 6 ought to be applied in an evenhanded fashion to both sides. As the late Professor Irving Younger observed, the adversary system is committed to "[t]he evenhandedness of justice."8 Professor Younger supported the basic assumption that, "once [the accused] confront[s] the [prosecuting] sovereign in court, the rules of the game [should] be the same for both." The differential application of the hearsay rule to prosecution and defense hearsay under Federal Rule 804(b)(3) appears to be at odds with that tenet.

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