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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 01799 SEPTEMBER TERM, 2001 ______________________________

AKIL JABARI ROEBUCK v. STATE OF MARYLAND ______________________________ Hollander, Salmon, Alpert, Paul E. (Retired, Specially Assigned), JJ. ______________________________ Opinion by Hollander, J. ______________________________ Filed: December 23, 2002

This case has its roots in the brutal murder of fourteen-yearold Jacoby ("Coaster") Fagan. A jury sitting in the Circuit Court

for Harford County convicted Akil Jabari Roebuck, appellant, of the first degree murder of Fagan, as well as the use of a handgun in the commission of a felony or crime of violence. Upon conviction,

the court sentenced appellant to life imprisonment as to the murder charge, and imposed a consecutive five-year sentence for the handgun offense. On appeal, we have been asked to decide whether the circuit court erred in barring appellant from introducing into evidence a statement made by appellant's cousin, Rolston James, Jr., a codefendant who was tried separately for Fagan's murder. Appellant

claimed that James's statement, which was incriminating as to James and arguably exculpatory as to appellant, constituted a declaration against penal interest. James's statement use at of Although the State had already relied on James's the murder trial, Finding it objected to

appellant's

statement.

the

statement

unreliable, the trial court sustained the State's objection. Roebuck presents three questions to the Court, which we have reordered and reworded: I. Under Maryland Rule 5-804(b)(3), did the trial court err in barring defense counsel from introducing a declaration against penal interest that was made by an unavailable co-defendant, which was exculpatory as to appellant? II. Did the trial court err in admitting into evidence enlarged color autopsy photographs depicting the victim's injuries?

III. Notwithstanding appellant's consent and waiver of any conflict, did the trial court err in allowing an attorney to represent appellant when that same lawyer previously represented an alleged accomplice in the murder, who testified for the State in exchange for a nol pros of the charges against him. For the reasons that follow, we answer "yes" to Question I. Therefore, we shall vacate the judgment of conviction and remand for further proceedings. For the benefit of the parties and the Despite the

court on remand, we shall also address Question II.

interesting issue raised by appellant in Question III, we decline to address it, because it surely will not resurface on remand. FACTUAL SUMMARY Fagan was savagely murdered on January 27, 2000. Early that

morning, a group of young men spotted Fagan on Magnolia Road in Harford County, with blood in the snow around him. The victim was

transported to Shock Trauma, where he died from massive injuries that included thirty-one stab wounds, eighteen cutting wounds, and three gunshot wounds to the head. John Miller, Jr., Rolston James, Jr. ("Bible"), and appellant were charged with Fagan's murder. All three were friends, and At the time of the murder, In exchange for Miller's

James and appellant are also cousins. appellant was nineteen years old.

cooperation, the State subsequently nol prossed the charges against him. James was tried separately; by the time of appellant's trial, he had been convicted of Fagan's murder. Following appellant's arrest on February 7, 2000, Roebuck gave -2-

a recorded statement to Sergeant Jason Merson of the Maryland State Police. In the statement, Roebuck said that he entered the woods

with James and the victim, while Miller remained behind in the car. According to Roebuck, James cut Fagan's throat and stabbed him repeatedly. Although Roebuck admitted that he handed the gun to

James at James's request, appellant claimed that James was the one who shot the victim.1 On February 8, 2000, Sergeant Merson also took a custodial statement from James. According to James, on the night of Fagan*s

murder, appellant, Fagan, and Miller were all at his house when "sparks start[ed]" between Fagan and James. Fagan got up and sat

by his coat, which "concerned" James because James knew that Fagan had a gun in his coat. James recounted: "I went over in his face

and got close and [said] do not sit beside your coat in my house disrespecting me like that when I know what you got in your coat." James claimed that he (i.e., James) was "high and drunk" at the time. To clear his mind, James suggested that the four "go out" to James

"have fun," and so the group left to see some girls.

recalled that, at some point, he "just snapped, just snapped and got real tired of it." According to James, he told Miller to stop the car near a wooded area. Then, James and the victim exited the vehicle. James

For strategic reasons, appellant elected not to pursue his motion to suppress his statement. -3-

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also stated:

"I was there, I could see myself doing it but I was I was begging literally begging myself to

begging myself to stop. stop."

The following colloquy during James's interrogation is also relevant: [MERSON]: Okay and then what happened[?] [JAMES]: The only thing I can tell you is I remember Akil [Roebuck] tapping me on my shoulder and hitting me and beating me and telling me to stop. [MERSON]: Akil, Akil was? [JAMES]: Begging me to stop. [MERSON]: Did you have a knife? [JAMES]: Uh, huh. [MERSON]: Was it your knife? [JAMES]: Uh, huh. * * * [MERSON]: Okay. Alright, um, so the next thing you remember is Akil tapping you on the shoulder and trying to get you to stop? [JAMES]: Actually he wasn*t physically telling me to stop. tapping me. He was

[MERSON]: Okay were you stabbing Coaster at that time? [JAMES]: I can't really tell you. [MERSON]: Who had a gun?.... Did you take the gun away from Coaster? [JAMES]: Uh, huh. [MERSON]: ... [U]m, but you don't know if you kept the gun or [appellant] had the gun? -4-

[JAMES]: All I can really tell you I wish I could tell you more but all I can tell you is that I wasn't there ... mentally.... To me it's, to me it don't really happen[.] [I]t's still like a blur. * * * [MERSON]: Did Akil stab Coaster? don't know? Are you saying you

[JAMES]: Like I told you, I, I really can't tell you from the point where he was.... * * * [MERSON]: Okay do you remember having the gun? Do you remember shooting Coaster? Either you did it, Akiel [sic] did it, or John [Miller] did it? [JAMES]: [Inaudible] don't know what happened. * * * [JAMES]: I know what I did. Like I told you I could have seen myself but it was just like me begging myself to stop and just by me just blocking out and just saying please stop. [MERSON]: Did you see yourself from the outside what was going on? Did, from what you saw from the outside did [Akil] or [Miller] have any part in the killing of [the victim]? You have to speak up. [JAMES]: No. [MERSON]: Okay. It was just yourself that you saw?

[JAMES]: Basically. By the time of appellant's trial in August 2001, James had already been convicted of Fagan's murder, and James's case was pending on appeal. As a result, by letter dated August 13, 2001,

James's attorney advised appellant's counsel that, "if called to testify, [James] will invoke his -5Fifth Amendment privilege,"

because James's conviction was pending on appeal. Therefore, it is undisputed that James was not available as a witness at appellant's trial. As anticipated, Miller testified for the State at appellant's trial. He recounted that he was with Fagan and appellant at

James's home on the evening of January 26, 2000, drinking and smoking marijuana. girls." Later that evening, they left in a car to "see

Miller, who was the driver, recalled that James and Fagan

disagreed about who was going to sit in the front seat, but Fagan prevailed. According to Miller, as he was driving, James "reached

up in front of him, had a knife in his hand, put the knife to Fagan's throat and took [Fagan's] gun." Miller also stated that

James asked Fagan, "How does it feel to know that this is the last night that you have on earth?" Then, at James's direction, Miller At that point, James exited the

stopped the car in a wooded area. car, pulling Fagan with him. him.

James also told appellant to join

As James, Fagan, and appellant headed towards the wooded About five to ten minutes later, According to Miller, When Miller inquired During the ride to did not say

area, Miller lost sight of them.

appellant and James returned, without Fagan. James had the gun and his hand was bleeding. about Fagan, James replied: "He's gone." James's apartment, Miller noted that

appellant

anything. Miller also said that, a few days later, James asked him to

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"get the gun," and told him where to find it. retrieved the weapon and decided to "get

Miller and appellant rid of the gun."

Accordingly, they gave the gun to Miller's friend, from whom it was later recovered by Sergeant Merson. At trial, the State introduced appellant's statement through Sergeant Merson. Then, during the cross-examination of Merson,

defense counsel sought to elicit James's statement, claiming that James was unavailable and that his statement constituted a

declaration against penal interest, admissible under Maryland Rule 5-804(b)(3). Following the State's objection, a bench conference ensued at which defense counsel argued vigorously that James's statement was admissible. Pointing to the fact that James's

statement was a recorded, custodial statement provided after James had been advised of his constitutional rights, appellant maintained that the trustworthiness of James's statement had been sufficiently established. The State countered that James's statement was inadmissible because it was a constitutionally that because protected James statement. invoked The his

prosecutor

reasoned

properly

constitutional right not to testify at appellant's trial, James also had the right to prevent appellant's "back door" use of his statement. Given James's valid assertion of his Fifth Amendment

privilege, the State claimed that appellant should not be allowed to circumvent James's lawful exercise of his constitutional

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privilege

by

introducing

his

statement

through

the

police.

Conceding that the State had introduced James's statement into evidence at James's trial, the prosecutor nevertheless insisted that it had done so without violating James's constitutional rights. The prosecutor said: "The law allowed us to bring it in. We did not abridge any Constitutional rights of Mr. James to bring that statement in at trial." Further, the State argued: In this case, this is not [James's] trial and he has exercised his Constitutional right. Maybe defense counsel doesn't like that they can't make him come in and testify but he has a right to do that. They want to go through the back door and bring his statement in any way without his presence. What Fifth Amendment protection has Mr. James been given in that case? None. You have a right not to testify. If you don't want to testify, the heck with you, we'll let somebody else testify in your place and tell us what you said. Where is his Constitutional protection? There is none. They are asking you to go through the back door and circumvent the Constitution and bring this evidence in this trial because the defense wants the jury to hear it and for no other reason. The following discussion at the bench is also pertinent: [THE PROSECUTOR]: Mr. James has a Constitutional right, a Fifth Amendment right. The Bill of Rights of the Constitution which the defense attorneys are always hammering the State with saying, Mr. James, you made statements, you said these things to a police officer, we want you to come to court and tell us what you told that police officer, and Mr. James has said, no, I* m exercising my Constitutional right not to have to do that. Where is Mr. James* protection? Where is there any validity to the right if we say, okay, go back there and sit down again, we*ll have somebody else come to court -8-

and tell us the words that you said to Sergeant Merson? Where is the protection of the Constitution there? I don*t think the Fifth Amendment allows his statements to come in through the back door because he inconvenienced the defense by exercising his rights, regardless of what the contents of those statements may be. The statement was made it should come in because it is a statement against his penal interest. That it may be. It is clearly hearsay. Let*s start with the proposition it is inadmissible because it is hearsay. The Defendant squeezes it in under that exception. The only reason we have that exception is because normally the reason for the hearsay rule is to keep out testimony or documents that are not credible [sic]. First of all, it is inherently credible. Therefore, it shouldn*t come in. Again, it made no difference in this case; it is hearsay, it should not come in. Whether Your Honor thinks it is probably inherently credible -THE COURT: Isn*t it one of the exceptions to a hearsay rule? [THE PROSECUTOR]: That is regardless. We have to come back to the fact it is constitutionally protected and he exercised his Constitutional rights. Where is the meaning of the Fifth Amendment which we all want to stand behind? If we go to Mr. James, Mr. James, we want come to court and tell us, it is hearsay and inadmissible, we want you to come to court and tell us what you told Sergeant Merson, he says, no, I don* t want those statements coming out, I have a Constitutional right not to do that and I'm exercising that right, the heck with you, we*ll have somebody else do that; where is the Constitutional protection there? The court was understandably puzzled by the State's position as to James's exercise of his Fifth Amendment privilege, noting that the State was "missing the point on the constitutional issue." The court also acknowledged that, to James's "consternation," the

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State had used James's statement against James at his trial. Nevertheless, statement was because the court was not satisfied so as to that render the it was

sufficiently court a

corroborated that

trustworthy, inadmissible reasoned:

the as

concluded

James's

statement The

declaration

against

interest.2

court

The Court has heard argument and, of course, this is governed completely by Maryland Rule 5-804. The Court certainly agrees with the defense on the proposition that the declarant is unavailable. That has been shown through Defense Exhibit 1. So, we satisfy that. The Court disagrees completely with the State's argument. I just think it missed the point completely. So we get to the issue, and the Court has not resolved the issue.... [T]his is governed by 5-804(b)(3). Of course, the last portion of that rule is exactly what we're dealing with here; that is, a statement tending to expose the declarant, which would be Mr. James, to criminal liability, which his statement certainly did, and offered to exculpate the accused, which is exactly what is going on here, is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. That is the issue is whether we do have corroborating circumstances which clearly indicate the trustworthiness of the statement. I think the old law school exam on this is where somebody has been caught red handed with [his] brother, in this case their cousin, and they know they are going down the river so they take the entire hit and make a statement that is inculpatory to them but that exculpates the family member. I think that is given as the example of why you need the extra corroboration. So, this rule really restates the earlier cases.

Although James's statement was not admitted in evidence, it was marked for identification as a defense exhibit and is included in the record. -10-

2

So, in order to analyze this to that portion of the analysis, that is do we have corroborating circumstances that clearly indicate the trustworthiness, I think for that in fairness to the defense I need to review that statement. I know I tried the case, but I don't know. * * * Once again, this court believes that this issue is governed by Maryland Rule 5-804(b)(3). Once again for the record, the issue is dealt with which states, 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. So, certainly I do find that we get down to this point that the declarant is unavailable. I don't buy into the Constitutional arguments of the State. What we're dealing with is are there corroborating circumstances that clearly indicate the trustworthiness of the statement. It is argued by the defendant that the Defendant's apologies at the very end, his emotional makeup at that point indicates the trustworthiness and that should be the trustworthy circumstances. With that, as we all know, I came out and asked for the statement so I could read through the entire statement. Of course, we do start off with the individuals, the declarant and the accused, being cousins. The evidence in this case is that they are cousins and that they are very close. In the statement itself we have Mr. James stating that he was not there mentally, it is like a blur. At one point in this he didn't know if John was in the car or not. He says most of it is a big blur. At one point he says he doesn't know what happened. At one point in this, as it relates to Akil and they were asking, I think Sergeant Merson was asking Mr. James about a gun and he says I don't want him to get in trouble. It is only when they say he already verified it that he then admits. So, in the statement itself he indicates his attempt and desire not to get the accused in trouble. So, when I take a look at all of that, I don't feel that there are corroborating circumstances which clearly indicate the trustworthiness of the statement. On that basis, I will sustain the State's objection to questions -11-

as it relates to getting in the statement of Mr. James. At one point in here in discussing the incident he kind of goes both ways. At one point he doesn't know and it is not clear. But then, of course, which is why the defense would like this this [sic] in, he very clearly then says Mr. Roebuck did not participate in the killing, but in an earlier part he is saying he doesn't know what happened, he is not clear. He says I know what I did. So, on that basis the Court finds the lack of corroborating circumstances to clearly indicate trustworthiness.... We shall include additional facts in our discussion. DISCUSSION I. Appellant contends that the trial court erred by precluding him from introducing James's statement into evidence. He argues

that, because James was unavailable, and James's statement was sufficiently corroborated, it was admissible under Maryland Rule 5804(b)(3) as a declaration against penal interest. Roebuck asserts that the court erred in finding Therefore, that the

declaration was "unreliable." The State counters: "Whether statements are sufficiently

reliable to justify admission under the exception at issue is a factual determination that falls within the trial court's

discretion."

Accordingly, it maintains that the trial court

neither erred nor abused its discretion. We begin by setting forth the text of Maryland Rule 5804(b)(3). Rule 5-804. Hearsay exceptions; declarant unavailable. -12-

* * * (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 contrary to the declarant's pecuniary or proprietary interest, so tended to subject the declarant to civil or criminal liability, or so tended 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 the person believed 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. (Italics added).3 The hearsay exception in issue seeks to "balance ... the need for evidence to ascertain truth and the exclusion of untrustworthy evidence." State v. Anderson, 416 N.W.2d 276, 280 (Wis. 1987); see Chambers v. Mississippi, 410 U.S. 284, 302 (1973) ("Few rights are more fundamental than that of an accused to present witnesses in his own defense."). In order to admit a hearsay statement under

Rule 5-804(b)(3), the trial court must determine that: 1) the

The Maryland rule concerning statements against interest is derived from the comparable rule contained in the Federal Rules of Evidence. Gray v. State, 368 Md. 529, 542 n.9 (2002). Therefore, in our analysis, we shall refer to various federal cases that have interpreted the federal rule. See Beatty v. Trailmaster, 330 Md. 726, 738 n.8 (1993) (stating that when a Maryland rule is derived from a federal rule, judicial interpretations of the federal rule by the federal courts are persuasive as to the meaning and application of the Maryland rule); see also Derry v. State, 358 Md. 325, 348-49 (2000). -13-

3

declarant's statement was against his or her penal interest; 2) the declarant is an unavailable to witness; the and 3) corroborating of the

circumstances statement.

exist

establish

trustworthiness

United States v. Garcia, 897 F.2d 1413, 1420 (7th Cir.

1990); United States v. Harrell, 788 F.2d 1524, 1526 (11th Cir. 1986); United States v. MacDonald, 688 F.2d 224, 232-33 (4th Cir. 1982), cert. denied, 459 U.S. 1103 (1983); United States v. Mock, 640 F.2d 629, 631 (5th Cir. 1981). In this case, the State does not dispute that James, the declarant, was unavailable within the meaning of Md. Rule 5804(a)(1); that rule defines unavailability to include a declarant who "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement." Nor does the State challenge appellant's claim that See United

the declaration was against James's penal interest.

States v. Wilkus, 875 F.2d 649, 654 (7th Cir.), cert. denied, 493 U.S. 865 (1989); United States v. Candoli, 870 F.2d 496, 509 (9th Cir. 1989). sufficiency statement. "The burden is on the proponent [of the statement] `to of Therefore, the the central and issue here involves the of the

corroboration

trustworthiness

establish that it is cloaked with `indicia of reliability' [, which] means that there must be a showing of particularized

guarantees of trustworthiness.'" West v. State, 124 Md. App. 147,

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167 (1998), cert. denied, 353 Md. 270 (1999) (quoting Simmons v. State, 333 Md. 547, 560, cert. denied, 513 U.S. 815 (1994)). A

trial court's determination of whether a statement is sufficiently trustworthy to justify admission as a declaration against penal interest is largely a factual determination. See Powell v. State,

324 Md. 441, 453 (1991); Wilkerson v. State, 139 Md. App. 557, 57677, cert. denied, 366 Md. 249 (2001); West, 124 Md. App. at 166; see also Garcia, 897 F.2d at 1421; United States v. Briscoe, 742 F.2d 842, 846-47 (5th Cir. 1984). Ultimately, however, whether to

admit such a statement calls for the exercise of discretion by the trial court. 166. The corroboration requirement serves to deter "criminal Wilkerson, 139 Md. App. at 577; West, 124 Md. App. at

accomplices from fabricating evidence at trial."

United States v. As the Camacho

Camacho, 163 F. Supp. 2d 287, 299 (S.D.N.Y. 2001).

Court aptly observed, "[t]he requirement of corroboration is easy enough to state in general terms," but gives rise to "some Id. at

uncertainty with respect to its particular application." 300.

Indeed, the precise parameters of sufficient corroboration Although a defendant generally must prove indicia of reliability" to meet the

are not entirely clear. that "there are clear

requirement of trustworthiness, Camacho, 163 F.Supp. at 302, there is no litmus test that courts must follow to establish adequate corroboration or trustworthiness. See Idaho v. Wright, 497 U.S.

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805, 822 (1990) ("We therefore decline to endorse a mechanical test for determining `particularized guarantees of trustworthiness' under the [Confrontation] Clause."). Thus, some courts have said that only "some corroborative evidence of the content of the hearsay statement" is required. See, e.g., Anderson, 416 N.W.2d at 279 (involving a declarant whose statements exculpated the declarant's brother, who was the

defendant in the case, and inculpated the declarant; the court held that "the standard of corroboration is corroboration sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true"); see also Garcia, 897 F.2d at 1421. stringent standard, requiring Yet, others have adopted a more corroboration that "solidly" or

"clearly" demonstrates the trustworthiness of a statement against interest. See, e.g., United States v. Satterfield, 572 F.2d 687,

693 (9th Cir.) ("[T]he corroborating circumstances must do more than tend to indicate the trustworthiness of the statement; they must clearly indicate it."), cert. denied, 439 U.S. 840 (1978); United States v. Barrett, 539 F.2d 244, 253 (1st Cir. 1976) ("[W]e would not read the standard of trustworthiness as imposing a standard so strict as to be utterly unrealistic.... On the other hand, there

is no question but that Congress meant to preclude reception of exculpatory hearsay statements against penal interest unless

accompanied by circumstances solidly indicating trustworthiness.").

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Several

Maryland

cases

have

elucidated

the

issues

of

corroboration and trustworthiness. 3 (1987), for example, the

In State v. Standifur, 310 Md. of Appeals considered the

Court

reliability of a declaration against penal interest made by an unavailable declarant, offered by the State against the accused in a criminal trial, to determine whether it qualified for admission under the common law exception to the hearsay rule. Court said, at 310 Md. at 12-17: The circumstances surrounding the making of the statement must be carefully analyzed to determine the likelihood that the statement was truthful. Critical to this analysis is the state of mind of the declarant at the time the statement was made. Unless the declarant then believed the statement to be against his penal interest, there is no basis for presumed reliability. However, because of the unavailability of the declarant and other problems of proof, the party urging this exception is not required to prove the actual state of mind of the declarant but must prove sufficient surrounding facts from which the trial judge may inferentially determine what the state of mind of a reasonable person would have been under the same or similar circumstances.... ... The more important criterion is that a reasonable person in the situation of the declarant would have perceived the statement as disserving at the time he made it.... * * * In summary, a trial judge considering the admission of a hearsay statement offered as a declaration against penal interest must carefully consider the content of the statement in light of all known and relevant circumstances surrounding the making of the statement and all relevant information concerning the declarant, and determine whether the statement was in fact against the declarant's penal interest and whether a reasonable person in the situation of the declarant would have perceived that it was against his penal interest at the time it was made. The trial judge should then consider -17The Standifur

whether there are present any other facts or circumstances, including those indicating a motive to falsify on the part of the declarant, that so cut against the presumption of reliability normally attending a declaration against interest that the statements should not be admitted. A statement against interest that survives this analysis, and those related statements so closely connected with it as to be equally trustworthy, are admissible as declarations against interest. Matusky v. State, 343 Md. 467 (1996), also provides guidance as to the matters of corroboration and trustworthiness. There, the State again sought to introduce a declaration against penal

interest that was inculpatory as to the defendant. statement was made by a co-defendant who was

Because the to be tried

separately, and was thus unavailable, Matusky's constitutional right to confrontation was implicated. The Matusky Court explained that, once the proponent establishes unavailability, the trial court must "carefully consider the content of the statement in the light of all known and relevant circumstances surrounding the making of the statement and all relevant information concerning the declarant, and determine whether the statement was in fact against the declarant*s penal interest and whether a reasonable person in the situation of the declarant would have perceived that it was against his penal interest at the time it was made." [State v. Standifur, 310 Md.] at 17. If the hearsay statement passes this part of the test, the trial judge must next consider: "whether there are present any other facts or circumstances, including those indicating a motive to falsify on the part of the declarant, that so cut against the presumption -18-

of reliability normally attending a declaration against interest that the statements should not be admitted." Matusky, 343 Md. at 479-80 (quoting Standifur, 310 Md. at 17) (emphasis added). With regard to a statement against penal interest that is offered to exculpate an accused, some courts have expressed a "specific concern" that "the accused or the declarant, or both, may have a motive to fabricate the statement." at 280. Anderson, 416 N.W. 2d

In Camacho, 163 F. Supp. 2d 287, the federal court

undertook a thorough review of the statement against penal interest hearsay exception to ascertain the various factors that generally pertain to corroboration and trustworthiness of a declaration against penal interest. Among them, the court observed that the

relationship between the declarant and an accused is certainly an important consideration. Id. at 306-07. See, e.g., United States

v. Duke, 255 F.3d 656, 658-59 (8th Cir.) (involving statement by defendant's brother), cert. denied, 534 U.S. 1022 (2001); United States v. Katsourgakis, 715 F.2d 769, 777-78 (2d Cir. 1983)

(upholding admission of testimony of wife of declarant, because declarant "had no motive to in lie to his wife" arson in describing cert.

declarant's

participation

defendant's

scheme),

denied, 464 U.S. 1040 (1984); United States v. Silverstein, 732 F.2d 1338, 1346 (7th Cir. 1984) (stating that certain "statements are suspect because of a long-standing concern - whether or not

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well-founded - ... that a criminal defendant might get a pal to confess to the crime the defendant was accused of..."), cert. denied, 469 U.S. 111 (1985). On the other hand, the Camacho Court observed that, when "a statement directly inculpates the declarant, and no one else," that circumstance is a factor "in favor of its reliability." Camacho,

163 F. Supp. 2d at 305; see Lilly v. Virginia, 527 U.S. 116, 131 (1999) (noting that confession that inculpates an accomplice is "inherently unreliable."). declarant expects his Moreover, the "extent to which a to subject him to criminal Camacho,

statement

liability also reflects on the statement's reliability."

163 F. Supp. 2d at 307; see United States v. Moskowitz, 215 F.3d 265, 269 (2d Cir.) (concluding that plea allocution was reliable because declarant was subjected to incarceration), cert. denied, 531 U.S. 1014 (2000). Further, the timing of a statement against penal interest is an important consideration. When a statement against interest is

made soon after the event in issue, that factor generally weighs in favor of trustworthiness. Camacho, 163 F. Supp. 2d at 306; see

Latine v. Mann, 25 F.3d 1162, 1167 (2d Cir. 1994) (noting that a statement made shortly after the criminal incident gives a

declarant "little opportunity to reflect on the events and to prepare a story"), cert. denied, 514 U.S. 1006 (1995). The consistency of a declarant's statements is yet another

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factor for a court to consider. see Doyle, 130 F.3d at 544.

Camacho, 163 F. Supp. 2d at 308;

In United States v. Bahadar, 954 F.2d

821, 829 (2d Cir.), cert. denied, 506 U.S. 850 (1992), the court observed: "Repeated changes in [the declarant's] story - would make any district judge suspicious of the statement's reliability." Additionally, courts tend to regard as reliable those

statements that are made spontaneously, rather than "in response to coercive questioning by police officers...." Camacho, 163 F. Supp. 2d at 306. In particular, statements given to the police are not

necessarily perceived as reliable when they exculpate the declarant but inculpate someone else. Instead, such statements are regarded

as an attempt by the "declarant ... to obtain favorable treatment." Camacho, 163 F. Supp. 2d at 308; see Garcia, 897 F.2d at 1421. To effectuate the objective of preventing fabrication, the Second Circuit previously required corroboration of both "the declarant's trustworthiness as well as the statement's

trustworthiness." Bahadar, 954 F.2d at 829 (emphasis in original). That position was later rejected by the Second Circuit in Doyle, 130 F.3d 523. statement, not There, the Second Circuit explained: "`It is the the witness or the declarant, that must be

trustworthy.'"

Id. at 544 (citation omitted).

Relying on 5

WEINSTEIN'S FEDERAL EVIDENCE

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