People v. Poole

Cavanagh, C.J.

(dissenting). The majority holds that the portion of the declarant’s statements, naming the defendant as an accomplice in the crime, "come[s] within the language and purpose of MEE 804(b)(3) so that they are admissible at *167trial as a matter of the law of evidence.”* Ante, pp 159-160. The portions of the declarant’s statements that implicated the defendant in this crime were not, however, against the declarant’s penal interest, and are therefore inadmissible under MRE 804(b)(3). People v Watkins, 438 Mich 627, 649-650; 475 NW2d 727 (1991). Accordingly, I respectfully dissent.

i

A statement made out of court and offered for the truth of the matter asserted is hearsay. MRE 801. Hearsay evidence is presumptively unreliable, Idaho v Wright, 497 US 805, 821-823; 110 S Ct 3139; 111 L Ed 2d 638 (1990), and, therefore, inadmissible at trial except as otherwise provided in the rules. MRE 802. The rules provide for certain exceptions to the hearsay exclusionary rule, which are "recognized to accommodate situations where the evidence is necessary and where the trustworthiness of the evidence is shown.” Comment, Inculpatory declarations against interest and the Confrontation Clause: A wider spectrum of admissible evidence against co-conspirators, 48 Brooklyn L R 943, 944 (1982).

One recognized exception to the hearsay rule is MRE 804(b)(3), which provides in pertinent part:

A statement which was at the time of its making ... so far tended to subject [the declar-ant] to civil or criminal liability . . . that a reasonable person in his position would not have made the statement unless he believed it to be *168true. 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.

This Court recently considered the application of this rule in a case involving an accomplice’s confession that implicated others in Watkins. The lead opinion rejected the notion that statements inculpating others are "admissible under MRE 804(b)(3) simply because they appear within the same confession as statements concededly against the [declarant’s] interest . . . .” Id., p 633. After noting that " '[t]he basis of the exception is the principle of experience that a statement asserting a fact distinctly against one’s interest is unlikely to be deliberately false or heedlessly incorrect,’ ” id. at 635, we stated:

It thus follows by the most elementary logic that our confidence in the trustworthiness of a purported statement against interest extends only insofar as the specific factual assertions contained within the statement are, in fact, against the declarant’s interest. [Id. at 636.]

Accordingly, we set forth this rule:

Each factual assertion sought to be admitted under that exception must be viewed as narrowly and specifically as reasonably possible, and the court must separately ask whether each speciñc assertion is so intrinsically against the declarant’s interest that a reasonable person would not have said it unless it were true. In other words, to the extent such statements can be logically and reasonably severed and dealt with independently, they should be.
.... With all such assertions, the inquiry is analytically quite simple: Given everything else *169that the [declarant] admitted regarding his own participation in the alleged crimes, was it against his interest also to name and accuse the alleged accomplices and describe their conduct? [Id. at 646-648. Emphasis added.]

Application of this rule to the facts of this case indicates that the decision of the Court of Appeals should be affirmed. While it was clearly against Downer’s penal interest to admit to killing the victim during the attempted robbery, it was not against his penal interest to add that "Eddie [Poole]” was with him and to describe his conduct. Likewise, it was not against Downer’s penal interest to state that " 'somebody that Eddie knew’ ” was also involved in the robbery attempt. Slip op at 4.

n

The majority focuses on the differences between this case and Watkins, most notably the absence of governmental involvement. Downer allegedly made the statements to his cousin and not to the police. The statement was made the day of the crime and before any of the defendants were in custody. Downer took most of the blame himself, admitting that he was the shooter. Accordingly, the disputed hearsay statements are arguably reliable. To this, however, I would say that, unlike the Federal Rules of Evidence, there is no "catch-all” exception in the Michigan Rules of Evidence to permit the admission of reliable evidence that is not admissible under any other exception to the hearsay rule. Accordingly, if the statements were not against the declarant’s penal interest, then they are inadmissible! Clearly, they were not.

I would affirm the decision of the Court of Appeals.

In so holding, the majority adopts a rule that would permit hearsay statements of third parties to be used as substantive evidence of an accused’s guilt as long as the statement "is made in the context of a narrative of events, at the declarant’s initiative without any prompting or inquiry, [and] that as a whole [the statement] is clearly against the declarant’s penal interest . . . .” Ante, p 161.