Lee v. Illinois

Justice Blackmun, with whom The Chief Justice, Justice Powell, and Justice Rehnquist join,

dissenting.

I yield to no one in my respect for the Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth. And I do not denigrate the lofty precepts that have been developed to strengthen its enforcement. I feel, however, that at times this Court tends to be *548overly concerned with theory and pronounced principles for their own sake, and to disregard the significant realities that so often characterize a criminal case. There is a real world as well as a theoretical one.

This case, centering on two senseless and reprehensible East Saint Louis murders, is illustrative. Petitioner Millie R. Lee and her friend and codefendant, Edwin R. Thomas, each confessed to extensive and cooperative involvement in the crimes. Their corroborated and mutually reinforcing statements stand in vivid contrast to the blame-it-on-the-other-person and buck-passing posturing that usually develops when criminal accomplices are apprehended and each endeavors to rescue himself or herself at the expense of the other. We have nothing of that kind here.

I agree with the Court that this case is governed by Ohio v. Roberts, 448 U. S. 56 (1980). Under the principles enunciated in that case, Thomas’ confession was constitutionally admissible against petitioner only if Thomas was “unavailable” as a witness and the confession bore sufficient “indicia of reliability.” Id., at 65-66. These two requirements serve to ensure that an out-of-court statement is admitted only when it does not threaten the central mission of the Confrontation Clause, which is “to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.’” Dutton v. Evans, 400 U. S. 74, 89 (1970) (plurality opinion), quoting California v. Green, 399 U. S. 149, 161 (1970). Because I believe that each of the Roberts requirements was satisfied in this case, I conclude that the trial court’s use of the accomplice’s confession as evidence against petitioner was constitutionally permissible.1

*549I

Recognizing “the Framers’ preference for face-to-face accusation,” this Court has construed the Confrontation Clause to embody in general “a rule of necessity.” Ohio v. Roberts, 448 U. S., at 65. When a witness is available to testify in court, his prior statement, even if reliable, generally will be inadmissible to prove the truth of what it asserts unless the witness is produced for cross-examination. See California v. Green, 399 U. S., at 158; Barber v. Page, 390 U. S. 719 (1968). “In the usual case . . . the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Roberts, 448 U. S., at 65.2

For all practical purposes, Thomas was unavailable as a prosecution witness. Although physically present in the courtroom, he clearly would have invoked his privilege against self-incrimination if called to the stand to describe the murders he had committed with petitioner.3 Indeed, it is *550precisely Thomas’ Fifth Amendment privilege that brought the Confrontation Clause into this case in the first place: although the State “produced” Thomas in court, his right not to testify against himself made him effectively unavailable for cross-examination by petitioner. See Douglas v. Alabama, 380 U. S. 415, 419 (1965). In much the same way, Thomas’ testimony was unavailable to the State. See Phillips v. Wyrick, 558 F. 2d 489, 494 (CA8 1977), cert. denied, 434 U. S. 1088 (1978).

Illinois, of course, had weapons that petitioner lacked. For example, the State could have offered Thomas a favorable sentencing recommendation, or the opportunity to plead guilty to a lesser offense', in exchange for his testimony against petitioner. Alternatively, the State could have tried Thomas separately and granted him immunity from the use of his inculpatory testimony against petitioner. See Kastigar v. United States, 406 U. S. 441 (1972). Measures of this kind, however, entail significant costs. A plea agreement necessarily compromises the community’s legitimate correctional interests, and a grant of immunity places a heavy evidentiary burden on any future prosecution of the witness. See id., at 460-461. I cannot conclude that the possibility of such an arrangement with petitioner’s codefendant rendered him an available witness for purposes of the Confrontation Clause.

My unwillingness reflects in part a respect for established principles of the law of evidence. Although the Confrontation Clause differs in significant ways from the common-law rule against the introduction of hearsay, the two “stem from the same roots,” Dutton v. Evans, 400 U. S., at 86 (plurality opinion), and “protect similar values,” California v. Green, 399 U. S., at 155. As a consequence, analysis under the Confrontation Clause properly is informed, although not constrained, by hearsay principles developed over time by courts and legislatures. See, e. g., Roberts, 448 U. S., at 66. Among those principles is the generally accepted notion that *551witnesses who successfully invoke the privilege against self-incrimination are “unavailable” for purposes of determining whether their prior statements are admissible under an exception to the hearsay rule. See California v. Green, 399 U. S., at 168, n. 17; Fed. Rule Evid. 804(a)(1); E. Cleary, McCormick on Evidence § 253 (3d ed. 1984). The judgment embodied in that notion — that a witness who validly invokes the privilege is unavailable as a practical matter to testify— seems to me to be sound, and I see no reason to take a different approach under the Confrontation Clause. I therefore conclude that Thomas was unavailable as a witness.

II

I also conclude, in the circumstances of this case — and the Court should be realistic about these issues —that the confession of petitioner’s codefendant bore adequate “indicia of reliability” to allow its admission into evidence against petitioner. Chief among these indicia is the fact that Thomas’ statements were thoroughly and unambiguously adverse to his penal interest. See United States v. White, 553 F. 2d 310, 314 (CA2), cert. denied, 431 U. S. 972 (1977). The hearsay exception for declarations against interest is firmly established; it rests upon “the principle of experience that a statement asserting a fact distinctly against one’s interest is unlikely to be deliberately false or heedlessly incorrect.” 5 J. Wigmore, Evidence §1457, p. 329 (J. Chadbourn rev. 1974).4 Again, I recognize that the requirements of the *552Confrontation Clause and the hearsay rule often diverge. But statements squarely within established hearsay exceptions possess “the imprimatur of judicial and legislative experience,” G. Lilly, An Introduction to the Law of Evidence § 78, pp. 277-278 (1978), and that fact must weigh heavily in our assessment of their reliability for constitutional purposes. See Roberts, 448 U. S., at 66.

The majority points out correctly, ante, at 541-542, that the Court customarily has treated the confessions of codefendants with suspicion. Never, however, has the Court held such confessions per se inadmissible under the Confrontation Clause,5 and the suspicion the Court has shown in no way contradicts the general reliability of statements against penal interest. Indeed, accomplice confessions ordinarily are untrustworthy precisely because they are not unambiguously adverse to the penal interest of the declarant. It is of course against one’s penal interest to confess to criminal complicity, but often that interest can be advanced greatly by ascribing the bulk of the blame to one’s confederates. It is in circum*553stances raising the latter possibility — circumstances in which the accomplice’s out-of-court statements implicating the defendant may be very much in the accomplice’s penal interest — that we have viewed the accomplice’s statements as “inevitably suspect.” Bruton v. United States, 391 U. S. 123, 136 (1968); see also id., at 141-142 (White, J., dissenting) (“Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence”).

Such circumstances were presented starkly in Douglas v. Alabama, 380 U. S. 415 (1965). The accomplice’s confession in that case was “of crucial importance” because it identified the defendant as the triggerman. Id., at 417, and n. 3. Only one shot had been fired, and it obviously was in the accomplice’s penal interest to convince the authorities that he was not the one who fired it. By “fingering” the defendant, he minimized his own criminal culpability.

In the present case, however, there is little reason to fear that Thomas’ statements to the police may have been motivated by a desire to shift blame to petitioner. Thomas’ confession was less favorable in all respects to his own interests than petitioner’s confession, and there is no claim by either side that Thomas actually was more culpable than either he or petitioner admitted. Also, Thomas’ description of petitioner’s involvement in the murders in no way diminished his own complicity. This is particularly so with respect to the matter for which the trial judge relied on Thomas’ confession, namely, the joint planning of the murders. Far from minimizing Thomas’ own liability, the claim that the two defendants consulted about the crimes immediately before carrying them out damaged Thomas’ defense just as much as petitioner’s, and subjected both defendants to possible charges of criminal conspiracy.6

*554Not only was Thomas’ confession unambiguously adverse to his own penal interest, but it was also extensively corroborated by other evidence introduced at trial. Perhaps the strongest corroboration was provided by petitioner’s own confession, which mirrors Thomas’, statement in striking detail. Both defendants independently told the police that the murders took place after Odessa Harris came into the kitchen to complain about their arguing. App. 6 (petitioner’s confession) (“Odessa . . . asked what the hell was going on”); id., at 17 (Thomas’ confession) (“Odessa . . . asked, what’s the hell going on”). Both defendants explained that Harris then returned to the bedroom, and that petitioner called her back to the kitchen, at which time Thomas rose from a recliner and stabbed her in the back with a long-blade knife. Id., at 6-7, 18-19. According to both confessions, Odessa Harris fell to the floor and began to call for petitioner’s aunt, Mattie Darden, whom petitioner then intercepted in the bedroom with a knife. Id., at 7, 19. Both defendants agreed that while petitioner was in the bedroom she asked Thomas for the hammer, that Thomas could not find it, that petitioner asked Thomas to bring a skillet from the kitchen, that *555Thomas did so, and that the skillet fractured after petitioner struck Darden on the head with it once or twice. Id., at 7, 20. They agreed that Thomas then brought another skillet from the kitchen, that petitioner hit her aunt once more on the head, spraying grease about the room, and that Thomas took over after telling petitioner she was not hitting hard enough. Id., at 8, 20. Both defendants said they had spoken in the past about doing something to stop Darden from harassing petitioner. Id., at 12, 17.7

The two confessions, of course, were not identical as to every detail. One could not expect them to be. In particular, the discussion just before the killings, on which the trial judge relied in rejecting petitioner’s defense of “sudden and intense passion,” was described only in Thomas’ statement. For at least two reasons, however, this divergence does not significantly undermine the corroboration provided by petitioner’s confession. First, although petitioner did not mention the discussion described by Thomas, the story she told was in no way inconsistent with the occurrence of such a discussion. Nothing she said suggested that joint planning of the kind described by Thomas had not taken place. Second, as noted above, Thomas’ assertion that he and petitioner consulted immediately before the murders cannot be understood as an attempt to shift blame from Thomas to petitioner. Far from diminishing Thomas’ cul*556pability, that assertion increased his potential liability just as much as it did petitioner’s.8

In addition to the corroboration provided by petitioner’s own confession, the statements given by petitioner and Thomas were fully consistent with the physical evidence. The knives used in the attacks were found where petitioner said they were hidden. See Tr. 183-184. The police also found, among other evidence, the can of lighter fluid used to ignite the bodies of both victims, see id., at 21-22, the broken skillet, see id., at 41-42, and both victims’ remains, see id., at 17-18, 67-71, 78-82, 155-157. The wounds found on Darden’s body were fully in accord with the story told by both defendants. See id., at 77-78.

Finally, the record amply supports the trial court’s determination that the confessions were voluntary. Although petitioner and Thomas were in custody when they gave their statements, each was fully notified of his or her rights, and there is no indication of any police pressure. The interrogating officers testified at trial that the defendants appeared alert and sober during questioning, and that they were not *557threatened or cajoled by the police in any way. See id., at 30-31, 37-38, 94-96, 104-106.

It is the unusual conjunction of these indicia of reliability— thorough and unambiguous adversity to Thomas’ penal interest, extensive and convincing corroboration by petitioner’s own confession, further corroboration provided by the physical evidence, and reliable evidence of voluntariness — that persuades me in this case that the de facto admission of the confession of an unavailable witness as substantive evidence against petitioner did not violate the Confrontation Clause. Were any of these elements missing, the result might be different and I might well agree with the Court. Together, however, they kept this trial within constitutional bounds.

Ill

The Court’s cases have construed the Confrontation Clause in a pragmatic fashion, requiring “substantial compliance” with its purposes, see Ohio v. Roberts, 448 U. S., at 69; California v. Green, 399 U. S., at 166, but acknowledging the need to balance the interests of the accused against the public’s “strong interest in effective law enforcement,” Roberts, 448 U. S., at 64; see also Mattox v. United States, 156 U. S. 237, 243 (1895). I share the Court’s general concern regarding the use of an accomplice’s confession as evidence against an accused, but I believe that in this case the practical unavailability of petitioner’s codefendant as a witness for the State, together with the unusually strong and convincing indications that his statements to the police were reliable, rendered the confession constitutionally admissible against petitioner.

I respectfully dissent.

As the Court points out, ante, at 539, the admissibility of Thomas’ confession under Illinois law is not the issue in this case and does not control the question of constitutional admissibility.

As this Court recently explained in United States v. Inadi, 475 U. S. 387 (1986), a specific showing of unavailability is not always required. I nonetheless assume, for purposes of discussion, that in relevant respects Thomas’ custodial confession is more like the prior judicial testimony at issue in Roberts than like the contemporaneous co-conspirator statements involved in Inadi, and thus that both Roberts requirements had to be satisfied.

Because the State did not call Thomas to testify, he did not expressly invoke his Fifth Amendment privilege. In the circumstances of this ease, however, the absence of this formality is not decisive. Cf. United States v. Thomas, 571 F. 2d 285, 288 (CA5 1978). Not only would such an effort by the State have been futile, but also Thomas’ presence in the courtroom made him as available to petitioner as to the prosecution. Thus, in the exceedingly unlikely event that Thomas would have testified if called, there was no significant denial of petitioner’s right to confrontation, because petitioner herself could have called Thomas and questioned him, if necessary, as an adverse witness. The Confrontation Clause does not require that cross-examination actually occur; it requires only that a defendant be given the opportunity for cross-examination or its functional equivalent. See Ohio v. Roberts, 448 U. S. 56, 70-71 (1980).

The old view that the interest must be proprietary or pecuniary, not penal, by now has been fully discredited. The refusal of the common law to exempt statements against penal interest from the hearsay rule usually is traced to the decision of the House of Lords in the Sussex Peerage Case, 11 Cl. & F. 85, 8 Eng. Rep. 1034 (1844), a case Wigmore describes as “not strongly argued and not considered by the judges in the light of the precedents,” 5 J. Wigmore, Evidence § 1476, p. 351 (J. Chadbourn rev. 1974). The doctrine announced there has been termed “barbarous,” id., §1477, p. 360, and “indefensible in logic,” Advisory Committee’s Notes on Fed. Rule Evid. 804(b)(3), 28 U. S. C. App., p. 733. The rationale for allowing admission of declarations against interest applies no less forcefully when *552the declarant concedes criminal instead of civil liability; indeed, “no other statement is so much against interest as a confession of murder.” Donnelly v. United States, 228 U. S. 243, 278 (1913) (Holmes, J., dissenting). Accordingly, most jurisdictions now allow the introduction, in appropriate circumstances, of out-of-court declarations against penal interest. See E. Cleary, McCormick on Evidence §278 (3d ed. 1984); Fed. Rule Evid. 804(b)(3).

In Bruton v. United States, 391 U. S. 123 (1968), the inadmissibility of the codefendant’s out-of-court statements against the defendant was not contested; the question was whether limiting instructions were constitutionally adequate to ensure that the jury considered the codefendant’s statements only against the codefendant and not against the defendant. See id., at 128, n. 3 (“There is not before us . . . any recognized exception to the hearsay rule . . . and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause”); see also Dutton v. Evans, 400 U. S. 74, 86 (1970) (plurality opinion). The Bruton rule thus necessarily applies only to situations in which the out-of-court statements are constitutionally inadmissible against the defendant. See United States v. Kelley, 526 F. 2d 615, 620 (CA8 1975), cert. denied, 424 U. S. 971 (1976).

Thomas’ statement to the police therefore differs significantly from the typical confession implicating an accomplice. In most cases, the inculpation of the accomplice is “collateral” to the confession, in that the allega*554tions implicating the accomplice are not found in portions of the statement directly adverse to the declarant’s penal interest. Comment, Federal Rule of Evidence 804(b)(3) and Inculpatory Statements Against Penal Interest, 66 Calif. L. Rev. 1189, 1190, n. 7 (1978).

Moreover, because Thomas’ inculpation of petitioner was inseverable from those portions of the confession strongly adverse to his own penal interests, this case presents no special reason to fear that Thomas implicated petitioner in an effort to curry favor with the police. In theory, of course, the entire confession could have been a misguided effort to please the interrogating officers, see, e. g., Parker v. Randolph, 442 U. S. 62, 86, and n. 6 (1979) (Stevens, J., dissenting), but this possibility is present whenever a suspect confesses while in custody, and it renders the confession no less reliable as evidence against a codefendant than as evidence against the confessing suspect. In this case, moreover, the possibility of a false confession is rendered remote by the circumstances of Thomas’ confession, and by the extensive corroboration provided by petitioner’s own confession and by the physical evidence. See infra.

The confessions further agree on the details of the defendants’ activities following the murders, the broad outlines of which were as follows: Petitioner and Thomas put Harris’ body inside a trunk they found in Darden’s bedroom and left the trunk outside by the trash. Petitioner went to a local store to buy lighter fluid, with which she and Thomas set the trunk on fire. Using clothesline and a long aluminum lawn chair, they carried Darden to a vacant apartment. They cleaned the floors of Darden’s apartment. The following day, they transferred Harris’ remains to a cardboard stereo box, leaving the box with the garbage. Thomas later returned to the vacant apartment and set fire to Darden’s body. App. 8-11, 20-24.

The Court in the past has divided on the significance of “interlocking” confessions for the rule announced in Bruton v. United States, 391 U. S. 123 (1968). Compare Parker v. Randolph, 442 U. S., at 74-75 (plurality-opinion) (Bruton rule is inapplicable to cases involving interlocking confessions), with 442 U. S., at 77-81 (opinion concurring in part and concurring in judgment) (interlocking confessions may make Bruton error harmless but do not render the rule inapplicable), and id., at 81-83 (Stevens, J., dissenting) (same). Since Bruton applies only in cases where the eodefendant’s out-of-court statements are inadmissible against the defendant, see n. 5, supra, the views I expressed in Randolph necessarily imply, as the Court suggests, that interlocking confessions are not automatically admissible against both defendants. See ante, at 545. I adhere to that position. It hardly follows, however, that the corroboration provided by a defendant’s own confession is irrelevant to a determination whether a codefendant’s out-of-court statements are sufficiently reliable to be admissible against the defendant under the Confrontation Clause. Any categorical approach of that kind seems to me to be profoundly unwise.