Riley, J.
(dissenting). In the instant case, we are asked to consider whether the trial court erred by permitting the prosecutor to introduce as substantive evidence incriminating statements of two non-testifying codefendants at the defendants’ joint trial and, if so, whether the error was harmless. While the lead opinion reasons that the trial court erred in admitting the statements because they were not against the declarants’ penal interest,1 I would hold that the introduction of the nontestify-ing declarants’ unredacted statements that impli*679cated the defendants was not error, and consequently did not violate the Confrontation Clause of either Const 1963, art 1, § 20 or US Const, Am VI. Thus, I would affirm the decision of the Court of Appeals.2
i
It was established at trial that on August 26, 1986, Michael Hunter sent Christian Phillips, Walter Miller, Donald Watkins, and Kerry Jordan to the home of Cliff Harris to retrieve a gun given to Harris by Hunter. Harris, who once sold cocaine for Hunter, used the gun to protect himself and the crack house out of which he worked. Having learned that the four were coming, Harris asked a friend, Bernard Payne, to "watch his back” while the return of the gun took place.
Payne agreed and waited with Harris for the arrival of Hunter’s men. However, before the four men arrived to retrieve the gun, Payne decided to leave the house and walk to the local grocery store. While walking back to Harris’ house, Watkins, Miller, and Jordan accosted Payne and forced him at gunpoint into an awaiting automobile driven by Phillips. The four took Payne to a house on Pinehurst in Detroit to meet Hunter. Hunter told Payne to page his friend, Desmond Wilbert, who had also sold cocaine for Hunter, and to direct Wilbert to pick him up at an address on Clover-lawn in Detroit. He made it clear to Payne that he was not interested in harming him, but wanted Wilbert killed because he had heard that Wilbert was selling cocaine in direct competition with him on the west side of Detroit.
Payne did as he was ordered, and all the men, except Hunter, left to await Wilbert’s arrival. *680They missed their first opportunity to intercept Wilbert because he drove off before they could get out of the car and shoot him. After returning to their house, Hunter directed Payne to page Wilbert again and arrange a second pickup at the Cloverlawn address. When Wilbert returned to that address, Phillips, Watkins, and Jordan (stationed with two on one side of the street and one on the other) opened fire. Wilbert was able to escape in the car and survive the attack, but a sixteen-year-old passenger, Voncie Johnson, was killed.
A few months later, all five defendants were apprehended for the murder of Voncie Johnson, the attempted murder of Desmond Wilbert, and the kidnapping of Bernard Payne. When questioned by the police, Jordan, Miller, and Watkins implicated themselves and the others in the criminal episode.3 Jordan and Miller told the police that they and the others were ordered by Hunter to kill Wilbert and that is what they attempted to do.4 Neither attempted to deny involvement in the shooting, and neither tried to blame anyone other than himself, or the other defendants for the killing.
Before trial, Jordan and Miller moved to suppress their statements. Both claimed the police promised them leniency in exchange for implicating the other members of the group. Judge Henry Heading of the Detroit Recorder’s Court took testimony from Jordan, Miller, and the homicide detective who obtained the statements and concluded that both the declarants spoke freely to the police *681and that no promises or threats occurred, and denied their motion to suppress.5
At trial, the testimony of Payne and Harris implicated all five of the defendants in the murder of Voncie Johnson, the attempted murder of Desmond Wilbert, and the kidnapping of Bernard Payne. Their testimony was corroborated by a host of witnesses involved in the investigation.6 None of the defendants testified on their own behalf.
Toward the conclusion of his case, the prosecutor moved for the admission of Jordan’s and Miller’s statements under MRE 804(b)(3). In a hearing conducted outside the presence of the jury, Judge Michael Talbot of the Detroit Recorder’s Court, reviewed the statements in light of the relevant case law and held that Jordan’s and Miller’s statements could be introduced under the hearsay exception for declarations against penal interest. He reasoned that the statements had "greater reliability than any other exception to the hearsay rule by the very nature [of] admitting to the crime . . . .” After both statements were read to the jury, and before closing arguments, Judge Talbot instructed the panel to disregard the opinion testimony made in the statements and to concentrate only on the testimony that related to the substantive matter.
During the course of deliberations, the jury asked the court if they could listen to the testimony of Bernard Payne one more time, and review Jordan’s and Miller’s statements. In complying with the second request, Judge Talbot instructed the prosecutor to "redact” or "white-out” "any *682opinion testimony” in the statements so that the jury would adhere to his prior instruction to disregard any opinion testimony in the statements. After reviewing the redacted materials, counsel for the defense informed the court that they had no objection to permitting the jury to consider the redacted statements.7
The jury unanimously convicted all five defendants for the stated charges after rehearing the testimony of Payne and examining the redacted statements of Miller and Jordan.8
The Court of Appeals affirmed their convictions, finding that no error was committed by the trial court in admitting the codefendants’ statements as substantive evidence because the statements bore a sufficient amount of trustworthiness to overcome the presumption of unreliability. People v Watkins, supra at 445-447. We granted leave to appeal to determine whether the trial court erred in permitting the prosecution to introduce, as substantive evidence at the defendants’ joint trial, incriminating statements of two nontestifying co-defendants, and if so, whether the error was harmless.9
*683II
The defendants have argued throughout the appellate process that, as a general rule, the Confrontation Clause does not permit the use of a nontestifying codefendant’s incriminating statement to be used substantively against a codefen-dant. In support of this argument, they rely on Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968). In Bruton, the incriminating written statement of an accomplice was read to the jury after the accomplice invoked his privilege against self-incrimination and refused to testify. The United States Supreme Court reversed the accused’s conviction, holding that the Confrontation Clause bars the use of a nontestifying co-defendant’s statement which implicates the accused in a crime. However, the Court added the caveat that "[t]here is not before us . . . any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.” Id. at 128, n 3.10
Today we have a hearsay exception that addresses the caveat left open in Bruton. MRE 804(b)(3),11 and its federal counterpart FRE 804(b)(3), codify the common-law exception to the hearsay *684rule for statements against penal interest. See 4 Weinstein & Berger, Evidence, ¶ 804(b)(3)[01], p 804-123.
This exception to the hearsay rules is based on the premise that "[t]he circumstantial guaranty of reliability for declarations against interest is the assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true.” See Notes of the Advisory Committee, as reported in 11 Moore, Federal Practice, § 804.01[12—6]. See also Weissen-berger, Federal Evidence, § 804.20, p 512; 4 Weinstein & Berger, Evidence, ¶ 804(b)(3)[01], p 804-123; Lilly, Introduction to Evidence, p 261.
The rule expressly provides that a statement is not admissible if offered to exculpate the accused, unless corroborating circumstances clearly indicate the trustworthiness of the statement. However, it does not offer express guidance relative to when a statement is offered to inculpate the accused. See Notes of the Senate Committee on the Judiciary, as reprinted in 11 Moore, Federal Practice, § 804.01[12 — 3].
When this rule of evidence was being considered by Congress, the House Subcommittee on the Judiciary added an additional sentence that would have prohibited the use of an against penal interest statement that inculpated a codefendant. See *685Notes of the House Committee on the Judiciary, reprinted in 11 Moore, Federal Practice, § 804.01[12 — 1]. However, the Senate Committee on the Judiciary deleted the House amendment because
the basic approach of the rules is to avoid codifying, or attempting to codify, constitutional eviden-tiary principles, such as the fifth amendment’s right against self-incrimination and, here, the sixth amendment’s right of confrontation. Codification of a constitutional principle is unnecessary and, where the principle is under development, often unwise. Furthermore, the House provision does not appear to recognize the exceptions to the Bruton rule, e.g., where the codefendant takes the stand and is subject to cross examination; where the accused confessed, see United States v Mancusi, 404 F2d 296 (CA 2, 1968), cert den 397 US 942 [1970]; where the accused was placed at the scene of the crime, see United States v Zelker, 452 F2d 1009 (CA 2, 1971). [11 Moore, Federal Practice, § 804.01(12 — 3).]
The conference committee adopted the Senate version, omitting the House amendment, and justified its resolution with the reasoning employed by the Senate Committee: the rules of evidence should not attempt to codify constitutional principles on this issue. 11 Moore, Federal Practice, § 804.01[12 — 4]. Accordingly, the drafters of the rule left to the courts the task of delineating prerequisites to the admissibility of inculpatory penal interest statements.
Before the adoption of the rules, commentators had almost universally disapproved the reluctance to admit declarations against penal interest. Dean Wigmore, who is regarded as the leading authority on the law of evidence, denounced the economic limitations on the declarations against interest exception as "arbitrary,” "illogical,” "barbarous,” *686and contrary to two hundred years of precedents.12 5 Wigmore, §§ 1476, 1477, pp 349-362.
Professor Morgan, a leading authority on the law of evidence,13 concluded that excluding declarations against penal interest while admitting declarations against economic interest does not have "even a superficial appearance of rational consistency . . . .” Morgan, Declarations against interest, 5 Vand L R 451, 463 (1952).
Moreover, Professor McCormick, another distinguished commentator on the law of evidence, agreed with Wigmore that the exclusion of the penal interest doctrine was not justified in law or in any other manner. Far from taking a "firm position” against Wigmore’s position regarding the hearsay exception admitting declarations against penal interest, Professor McCormick unequivocally endorsed the arguments raised by Dean Wigmore in § 278 of his classic and very persuasive treatise on the law of evidence.
Was the practice of excluding third-person confessions in criminal cases justified? It certainly could not be justifíed on the ground that an acknowledgment of facts rendering one liable to criminal punishment was less trustworthy than an acknowledgment of a debt. The motivation for the exclusion has no doubt been a different one, namely, the fear of opening a door to a flood of witnesses testifying falsely to confessions that were never made or testifying truthfully to confessions that were false. This fear was based on the likely criminal character of witness and declarant, *687reinforced by the requirement that declarant be unavailable. Wigmore rejects the argument of the danger of perjury since the danger is one that attends all human testimony, and concludes that "any rule which hampers an honest man in exonerating himself is a bad rule, even if it also hampers a villain in falsely passing for an innocent.” Under this banner, saluted also by Holmes, J., in a famous dissent, courts began to relax the rule of exclusion of declarations against penal interest in particular situations or generally. [McCormick, Evidence (3d ed), §278, p 823. See also the same treatise and section in the second edition (1972). Emphasis added.]
Equally important were the state and federal court decisions that relaxed the requirements of excluding penal interest statements before the rules of evidence incorporated the penal interest hearsay exception. This trend began with Justice Oliver Wendell Holmes who, though in dissent, argued:
The rules of evidence in the main are based on experience, logic and common sense, less hampered by history than some parts of the substantive law. There is no decision by this court against the admissibility of such a confession; the English cases since the separation of the two countries do not bind us; the exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder, it is far more calculated to convince than dying declarations, which would be let in to hang a man, Mattox v United States, 146 US 140 [13 S Ct 50; 36 L Ed 917 (1892)]; and when we surround the accused with so many safeguards, some of which seem to me excessive, I think we ought to give him the benefit of a fact that, if proved, commonly would have such weight. The history of the law and the arguments against the English doctrine are so well and fully *688stated by Mr. Wigmore that there is no need to set them forth at greater length. 2 Wigmore, Evidence, §§ 1476, 1477. [Donnelly v United States, 228 US 243, 277-278; 33 S Ct 449; 56 L Ed 820 (1913) (Holmes, J., dissenting). Emphasis added.]
Given the strength of Justice Holmes’ analysis, several state courts began to relax their eviden-tiary rules excluding the declaration against interest in particular situations,14 or generally.15 See McCormick, supra, § 278, p 823.16 For example, in rejecting the exclusion of a declaration against penal interest, the California Supreme Court reasoned that
a person’s interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest. Moreover, since the conviction of a crime ordinarily entails economic loss, the traditional concept of a "pecuniary interest” could logically include one’s "penal interest.” (Compare the theory that admits a third person’s confession of a crime on the ground that the crime was also a tort, thus subjecting the declarant to civil liability for damages, a pecuniary interest. E.g., Weber v Chicago, R I & P R Co, 175 Iowa 358 [376-377]; [151 NW 852, 864 (1915); L.R.A. 1918A, 926]; McCormick, supra, § 255, p 549.) [People v Spriggs, 60 Cal 2d 868, 874-*689875; 36 Cal Rptr 841; 389 P2d 377 (1964) (en banc).]
It is evident that both courts and commentators agreed that the arbitrary limitation of excluding penal interest statements was unfounded in reasoning and unjustified in law.17 Conflicting opinions have emerged regarding how MRE 804(b)(3) ought to be applied to inculpatory statements. The lead opinion takes the narrow position that
[e]ach factual assertion sought to be admitted under that exception [MRE 804(b)(3)] must be viewed as narrowly and specifically as reasonably possible, and the' court must separately ask whether each specific assertion is so intrinsically against the declarant’s interest that a reasonable person would not have said it unless it were true. [Ante, p 646.]
However, I believe that the lead opinion’s proposal to exclude all collateral statements does not reach a satisfactory conclusion to the "inculpatory” problem of MRE 804(b)(3). The legislative history of the rule, as previously discussed, persuasively illustrates that the drafters did not intend MRE 804(b)(3) *690to be meaningless in its application with regard to inculpatory statements. Under my colleagues’ approach, the only function the rule would have is to permit the introductions of admissions, an element already covered by MRE 801(d)(2).18 This blanket exclusion would deprive the rule of much of its force because a large number of exculpatory statements are collateral.
I believe that inculpatory statements should be admitted under MRE 804(b)(3) if they withstand an examination of the trustworthiness of the statements at the time of their making. This means the proponent would have to show that the statement directly implicates the declarant in the crime. In addition, the proponent of the statement would have to show that the collateral portion is so closely related in time and context to the disserv-ing portion that it is equally trustworthy.
Under the foregoing principle, Jordan’s and Miller’s statements were, in my opinion, properly admitted under MRE 804(b)(3) as declarations against their own penal interest. Kerry Jordan admitted being involved in the entire incident.19 He detailed his and the codefendants’ involvement in the murder of Johnson and acknowledged his role of firing shots from a machine gun at Desmond Wilbert’s vehicle. None of the descriptions of the involvement of others in the events in any way shifted Jordan’s responsibility for his actions. Un*691der these facts, I believe that reliability and truthfulness were clearly established.
Walter Miller had also fully implicated himself as an aider and abettor in the plot to kill Wilbert.20 Miller did not attempt to shift blame to others, but accurately, and in precise detail, described his role in the events leading to the death of Johnson.
It can be inferred from both statements that Jordan and Miller directly implicated themselves in the crime. Moreover, their own detailed explanations of their personal involvement necessarily intertwined with the actions of Watkins, Phillips, and Hunter. Since the collateral portions of Jordan’s and Miller’s statements are so closely related in time and context to the inculpatory portion, I have no difficulty finding the inculpatory portion of the statements equally trustworthy. The statements were declarations against Jordan’s and Miller’s penal interests admissible under MRE 804(b)(3).
m
I also recognize that the penal interest exception, as well as all exceptions to the hearsay rule, raise confrontation questions under the Sixth Amendment and art 1, § 20 of the Michigan Constitution.21 Indeed, if the Confrontation Clause were read literally, hearsay could never be admitted because a defendant could not confront an accuser.
*692The United States Supreme Court has never interpreted the Confrontation Clause absolutely or literally. Mattox v United States, 156 US 237, 243; 15 S Ct 337; 39 L Ed 409 (1895); Maryland v Craig, 497 US 836; 110 S Ct 3157; 111 L Ed 2d 666, 677 (1990); Myatt v Hannigan, 910 F2d 680, 682 (CA 10, 1990). Indeed, the Court recognized that, if applied literally, the clause would abrogate virtually every hearsay exception, a result long rejected as "unintended and too extreme.” Ohio v Roberts, 448 US 56, 63; 100 S Ct 2531; 65 L Ed 2d 597 (1980). See also Barker v Morris, 761 F2d 1396, 1399 (CA 9, 1986) (the clause is given a pragmatic, rather than a rigid, literal construction). Rather, the Court has shaped the profile of the confrontation guarantee by balancing the competing interest of hearsay, Chambers v Mississippi, 410 US 284, 295; 93 S Ct 1038; 35 L Ed 2d 297 (1973), with the constitutional protection of confrontation. Mancusi v Stubbs, 408 US 204, 213; 92 S Ct 2308; 33 L Ed 2d 293 (1972); Roberts, supra at 62, 65.22 As a result, the Court has required the prosecution to overcome the presumption of unreliability of a nontestifying declarant by establishing both the "unavailability”23 of the declarant, and that the *693hearsay evidence bears "adequate 'indicia of reliability.’ ”24 Id. at 66. Because the hearsay rules and the Confrontation Clause are designed to protect similar values and stem from the same roots, Dutton v Evans, 400 US 74, 86; 91 S Ct 210; 27 L Ed 2d 213 (1970) (plurality), the Court recognized that reliability will be presumed where the "evidence falls within a firmly rooted hearsay exception.” Roberts, supra at 66. Otherwise, the prosecution must show that the hearsay evidence bears "particularized guarantees of trustworthiness.” Id.
Central to our analysis of the confrontation implications of the declaration against penal interest hearsay exception is the decision in Lee v Illinois, 476 US 530; 106 S Ct 2056; 90 L Ed 2d 514 (1986). In Lee, the petitioner and her codefendant were tried jointly in a bench trial at which neither defendant testified. The codefendant, Thomas, had implicated both himself and Lee in the crimes, and the only apparent theory of admissibility of his statements against the defendant was the exception for a declaration against penal interest. The trial judge expressly relied upon portions of Thomas’ unredacted statement in finding Lee guilty of murder.
*694Justice Brennan, writing for a five-member majority, found the state’s grounds for holding that Thomas’ statement to be reliable with respect to Lee’s culpability did not meet the Confrontation Clause standard of demonstrating substantial indi-cia of reliability, "flowing from either the circumstances surrounding the confession ... to overcome the weighty presumption against the admission of such uncross-examined evidence.”25 Lee, supra, 476 US 546. The majority focused on two factors in reaching its conclusion: the affirmative evidence of the codefendant’s blameshifting statement, and the circumstances surrounding the making of the accomplice’s confession. The majority first observed that the accomplice confessed in response to questions from the police only after he was told that the petitioner had already implicated him and asked him not to let her take the blame alone. 476 US 544. Second, Justice Brennan noted that the accomplice had considered becoming a witness for the state against the petitioner and, therefore, had an added incentive to shift blame. Id. On the basis of these circumstances, the Court concluded that the confession did not bear sufficient indicia of reliability and concluded that the petitioner’s Sixth Amendment right of confrontation had been violated.
Justice Blackmun, writing for the dissent, disagreed with the majority conclusions with respect to reliability, stating that "there is little reason to fear that Thomas’ statements to the police may have been motivated by a desire to shift blame to petitioner.” 476 US 553. He concluded that "in this case the practical unavailability of petitioner’s *695codefendant 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.”26 Id. at 557.
The reliability concerns that were present in the facts of Lee are not present in the instant case. There is no affirmative evidence of blameshifting on either Jordan’s or Miller’s statements. Jordan and Miller both confessed to participating in the kidnapping of Payne and conspiracy to murder Desmond Wilbert. Moreover, the testimony from the pretrial suppression hearing confirms that Jordan, who confessed within an hour of his arrest, and Miller, who confessed after reading a newspaper article describing the event and the defendants, spoke freely to the police and were not offered leniency in exchange for their statements. Both statements were declarations against penal interest and were properly admitted at trial.
Recently, the United States Supreme Court reaffirmed this approach to evaluating confrontation *696challenges under the general test set out in Ohio v Roberts, supra. Idaho v Wright, 497 US 805; 110 S Ct 3139; 111 L Ed 2d 638 (1990). In Wright, the Court was asked to consider whether certain statements made by a sexually abused child declarant to an examining pediatrician violated defendant’s rights under the Confrontation Clause. In applying the Roberts analysis to the facts of the case, the Court first found that the declarant was unavailable within the meaning of the Confrontation Clause. Id., 111 L Ed 2d 652. The Court then found that the residual hearsay exception, Idaho Rule of Evidence, § 803(24), is not firmly rooted for Confrontation Clause purposes.27 The Court then determined whether the state had carried its burden of overcoming the presumption of unreliability by establishing facts that the declarant’s statement bore the indicia of reliability through a showing of the "particularized guarantees of trustworthiness.”
In evaluating the state’s evidence, the Court held that the declarant’s statement was unreliable for Confrontation Clause purposes because the Idaho Supreme Court had relied on corroborating evidence to determine if the child declarant was telling the truth. The Court held that the inquiry into reliability must be drawn from a totality of circumstances that surround the making of the statement alone. Wright, 111 L Ed 2d 655-656.
The; difference between Wright and the instant case rests on the hearsay exception and the foundation required under each one. Idaho v Wright dealt with the miscellaneous hearsay exception where the only foundation was indicia of reliability. The Wright Court said that corroboration *697cannot support the introduction of the statement. In the instant case, however, the foundation for declarations against penal interest requires much more than indicia of reliability — it requires unavailability and establishing that the statement is so contrary to the declarant’s penal interest that a reasonable person would not have made it unless it were true. While it is unclear as to what extent Idaho v Wright permits inquiry into corroborating evidence, outside the residual hearsay exception, to support a declarant’s statement, I am persuaded that even under Wright, it may be appropriate to look at other evidence to determine if the statement is trustworthy.
For example, in the instant case, Miller made a statement that he was the driver and not the shooter. The question, therefore, becomes was Miller attempting to shift blame or exculpate himself? By examining Bernard Payne’s testimony and Kerry Jordan’s statement, it is evident that Miller was telling the truth.
The United States Supreme Court has approved this mode of inquiry in Cruz v New York, 481 US 186; 107 S Ct 1714; 95 L Ed 2d 162 (1987). In Cruz, the majority reasoned that the interlocking nature of a codefendant’s confession goes to the "reliability” of the statement, not to harmfulness. Id. at 192. The Court concluded that the codefendant’s statement "confirms essentially the same facts as the defendant’s own confession [and makes] it . . . more likely to be true.” Id. Likewise, in the instant case, Jordan’s statement confirms the facts in Miller’s statement, as does Miller’s in Jordan’s. This, in my opinion, makes the statements more likely to be true.
I also believe that even without the corroborating evidence, the circumstances surrounding the *698making of the statement are sufficient for Confrontation Clause purposes.
The defendants do not dispute that codefendants Jordan and Miller, who made the statements and refused to testify at trial, were "unavailable” within the meaning of MRE 804(a). The inquiry, therefore, is, first, whether the circumstances surrounding the making of Jordan’s and Miller’s statements exhibit sufficient "indicia of reliability” to justify their admission as substantive evidence, and, second,28 if reliability is found, whether the statements bear the "particular[ ] guarantees of trustworthiness” that are required by the state to introduce the statements against the codefendants, notwithstanding the fact that they had no opportunity to cross-examine the declarant.
I find factors outlined in United States v Layton, 855 F2d 1388, 1402 (CA 9, 1988), persuasive in testing the trustworthiness and reliability of incul-patory against interest statements. In Layton, the government sought a pretrial ruling to allow it to introduce certain statements, under the declaration against penal interest exception, made by the former Jonestown cult leader, Jim Jones, to his attorney that implicated himself and Layton in the killing of Congressman Leo Ryan. After Lay-ton was convicted, and upon his second appeal, the Court of Appeals explained why the proferred statements satisfied the requirements of FRE 804(b)(3). In doing so, the Layton court outlined a *699number of factors to consider in determining whether a statement overcomes the presumption of unreliability:
1. Was the statement made voluntarily? [Barker v Morris, 761 F2d] at 1401; Steele v Taylor, 684 F2d 1193, 1204 (CA 6, 1982), cert den 460 US 1053; 103 S Ct 1502; 75 L Ed 2d 932 (1983);
2. Was the statement made contemporaneously with the occurrence of the events it references? United States v Nick, 604 F2d 1199, 1204 (CA 9, 1979) (per curiam);
3. Did the declarant admit that he committed acts contrary to his penal interest or likely to bring him into disrepute? Barker, 761 F2d at 1401-[14]02;
4. Was the statement corroborated? Id. at 1402; Nick, 604 F2d at 1204; United States v West, 574 F2d 1131, 1135 (CA 4, 1978).
5. Did the declarant have personal knowledge of the matters addressed in the statement? Barker, 761 F2d at 1402;
6. Was the statement uttered spontaneously? Dutton v Evans, 400 US 74, 88-89 . . . ; and
7. Was the person to whom the statement was made someone to whom the declarant would likely speak truthfully? Nick, 604 F2d at 1204. It should be reiterated, however, that "[t]he reliability factors discussed in other cases 'are not to be considered exhaustive, nor are all factors required to be present in order to admit the declarations.’ ” Barker, 761 F2d at 1403 (quoting United States v Fleishman, 684 F2d 1329 [CA 9, 1982], cert den 459 US 1044; 103 S Ct 464; 74 L Ed 2d 614 [1982]). [Layton, 855 F2d 1405.]
In applying the Layton factors to the instant case, I believe the reliability requirement of the Confrontation Clause has been met.
Before trial, Judge Heading conducted a *700Walker29 hearing to determine if the statements were voluntarily given or if the police offered leniency in exchange for Jordan’s, Miller’s, or Watkins’ statements. An examination of the circumstances surrounding the taking of the statements by Judge Heading, as reviewed by the Court of Appeals, revealed that Jordan, Miller, and Watkins voluntarily spoke to the police and were not offered "leniency in exchange” for their statements.30 Furthermore, before the statements were introduced at trial, Judge Talbot conducted another hearing to determine if the circumstances surrounding the taking of the statements violated the codefendant’s confrontation rights. In my opinion, the pretrial inquiry, and the in-court hearing, were the keys in determining whether Jordan and Miller were particularly likely to be telling the truth when the statements were made. State v Earnest (On Remand), 106 NM 411, 412; 744 P2d 539 (1987); Steele v Taylor, 684 F2d 1204.
Moreover, I would find that both Jordan and Miller made statements that were so far contrary to their own penal interest that they had to be true.31 This is evident by the fact that they admit*701ted crimes punishable by life sentences. Barker, 761 F2d 1401-1402. Furthermore, both Jordan and Miller demonstrated their personal knowledge of the matters addressed in the statements. This is evident from the accurate detail of the shooting three months after the event occurred, Barker, supra, 761 F2d 1402, and that both confessed their participation in the shooting near or shortly after their arrests. Dutton v Evans, supra, 400 US 88-89. More importantly, there is nothing in the record to support an inference that either Jordan or Miller made the statements implicating the others in an attempt to avenge himself, or to demonstrate that he was motivated by a desire to curry favor with his interrogators, or that the state gave either any reason to believe that it would help if he inculpated others. Lee v Illinois, 476 US 545.32
I agree with the trial court and the Court of Appeals that with respect to all material points, the confessions are consistent and bear the particular guarantees of trustworthiness required by the Sixth Amendment. Both detail the obtaining of the gun from Cliff Harris, the kidnapping of Bernard Payne and his subsequent interrogation, and the events, orchestrated by Hunter, which led to the attempt to murder Wilbert and the killing of Voncie Johnson. Jordan and Miller both placed an Uzi in the hands of Jordan and Phillips, and a .357 magnum in the hands of Watkins.
*702The Confrontation Clause reliability and trustworthiness concerns are dispelled in the instant case because each statement truly meets the foundational requirements for a declaration against penal interest. I have no difficulty concluding " 'that a reasonable [person] in [Jordan’s and Miller’s] positions] would not have made the statements] unless [they] believed [them] to be true.’ ” United States v Vernor, 902 F2d 1182, 1187 (CA 5, 1990).
In my opinion, the presumption of unreliability has been overcome, and therefore, the defendants’ confrontation challenge must fail.
IV
I respectfully disagree with my colleagues’ opinion because it requires a trial court to examine each factual assertion "as narrowly and specifically as reasonably possible,” and have the trial court separately ask whether "each specific assertion is so intrinsically against the declarant’s interest that a reasonable person would not have said it unless it were true.” See ante, p 646. The main reason for my disagreement with the rule advocated by the lead opinion is that its premise violates the constitutional holding of Chambers v Mississippi, supra. In Chambers, the trial judge refused to admit the confession of another person that would have exculpated the defendant. Because the excluded testimony "bore persuasive assurances of trustworthiness” and was "critical to Chambers’ defense,” the United States Supreme Court found a Fourteenth Amendment due process violation and held the exclusionary principle of the hearsay rule "may not be applied mechanistically to defeat the ends of justice.” 410 US 302. As did the Chambers Court, in the instant case I *703would consider a number of factors bearing upon the question of trustworthiness.
First, each of [the declarant’s] confessions was made spontaneously to a close acquaintance shortly after the murder had occurred. Second, each one was corroborated by some other evidence in the case .... Third, whatever may be the parameters of the penal-interest rationale, each confession here was in a very real sense self-incriminatory and unquestionably against interest. [410 US 300-301.]
The existence of indicia of reliability led the Court to find a denial of due process in the exclusion of the confessions. It is clear that Chambers neither places a limit upon the admissibility of declarations against penal interest nor establishes the enumerated trustworthiness factors as prerequisites to admissibility for each proffered declaration. Moreover, if one carried the lead opinion’s argument to its logical conclusion, a trial judge could preclude a statement offered by a defendant which inculpates a codefendant declarant and exculpates the defendant who seeks its admission. This evidentiary barrier, suggested by my colleagues, clearly violates the Due Process Clause of the Fourteenth Amendment.
The second reason for my disagreement with the rule advocated by the lead opinion is that the cases cited as supporting their position do not reject the carry-over rule. Rather, these courts have held that inculpatory statements were erroneously admitted because they did not meet one of the factors of trustworthiness. See ante, pp 639-643.
For example, in United States v Sarmiento-Perez, 633 F2d 1092, 1102 (CA 5, 1981), the court held that a declarant’s statement was not *704sufficiently against his own penal interest and, therefore, admitted in error. Also, in United States v Bailey, 581 F2d 341, 348 (CA 3, 1978), the court ruled that a statement introduced under the residual hearsay exception, rule 804(b)(5), not 804(b)(3) as in this case, lacked the " 'guarantees of trustworthiness’ ” required by that rule. In a footnote, the court also held that the trial court properly denied the admission of the statement under FRE 804(b)(3) because the testimony of an fbi agent at trial indicated that the declarant was aware of the possible lenient treatment he could receive if he would implicate his role in a robbery and inculpate the role of the accomplice. The court opined that this fact indicated a lack of reliability in the statement. 581 F2d 346, n 4. Furthermore, in United States v Palumbo, 639 F2d 123, 128 (CA 3, 1981), the court held that a declarant’s inculpa-tory statement in a cocaine case lacked the indicia of reliability required by FRE 804(b)(3). Additionally, in United States v Riley, 657 F2d 1377, 1384 (CA 8, 1981), the court held that although a declar-ant’s statement was against interest, considering the circumstances of the taking of the statement, that the declarant was in police custody and informed that a conviction could jeopardize the custody of her child, the criteria of trustworthiness was not met.
As can be seen from the foregoing review of the cases relied on by my colleagues, they hold that trustworthiness was lacking in the making of the statements. They do not reject the rule of law I propose today. I believe that the factors of trustworthiness, outlined in Layton and Chambers, support my position that upon evaluation of the facts in the instant case, the defendants’ confrontation rights were not violated.
*705CONCLUSION
I would find that Jordan’s and Miller’s statements bore sufficient indicia of reliability to overcome the presumption against their admission into evidence. I am not persuaded that the trial court erred in permitting the jury to consider substantively the statements of Jordan and Miller as declarations against penal interest, because the guarantees of trustworthiness required by the Confrontation Clause have been met and, therefore, the defendant’s confrontation rights were not violated. I would affirm the decision of the Court of Appeals.33
Boyle and Mallett, JJ., concurred with Riley, J.APPENDIX A
The defendants are repeatedly referred to in Jordan’s and Miller’s statements by the following nicknames:
Wendall Henry - "farmer”
Donald Watkins - "duck”
Kerry Jordan - "k-9”
Desmond Wilbert - "d” or "des”
Michael Hunter - "b” or "bam”
Christian Phillips - "CHRIS”
Walter Miller - "peter-paul”
Bernard Payne - "nard”
The jury considered the following confession from Kerry Jordan:
*706Q. Mr. Jordan, [h]ave I explained your constitutional rights to you?
A. Yes.
Q. Do you understand them?
A. Yes.
Q. Are you willing to give me a statement regarding the fatal shooting of Voncie Johnson which occurred on [8]-26-86 on Cloverlawn?
A. Yes.
Q. Are you giving the statement freely and voluntarily?
A. Yes.
Q. Have I or any officer threatened you or promised you anything?
A. No.
Q. Why are you telling me?
A. Because I’m not going to take the fall alone.
Q. Tell me what happened.
A. A guy, Cliff owed me a pistol. He used to work for me and quit coming around. Duck, another guy who worked for me came over to 9555 Pinehurst and said that Cliff was at home. Then me, Peter-Paul, Chris went in a black [C]ougar and drove over to Cliff’s house. Duck and another guy followed us in their car. We got the gun from Cliff and Duck got in the car with us. Duck said, "I just [saw] Nard go to the store, we should get him.” We parked the car and waited for Nard. Peter-Paul and Chris got out of the car with Duck. They waited by the alley for Nard and brought him back to the car.
Q. Were they armed?
A. Yes, Chris had an Uzi, Duck had the gun we got from Cliff, Peter-Paul didn’t have anything.
Q. Okay, continue.
A. When we got him to the car Duck and Chris, no Duck and Peter-Paul got in the back seat with him. They made him bend over and we went back to 9555 Pinehurst. We all went into the basement and they questioned him. They were questioning him about a guy name[d] d. I went outside. Then B came to the house. I told b we got Nard in the *707basement and we went downstairs. B asked Nard something but I don’t remember what. Nard said I’ll beep d because he didn’t want us to kill him. Duck said come on, let’s go beep him. Me, Chris, Peter-Paul, Duck and Nard drove over to the Mendota and Nard beeped d.
Q. Who lives on Mendota?
A. A friend of ours, Mary.
Q. Okay, continue.
A. Chris gave Nard an address off the top of his head on Cloverlawn and Nard gave it to d. B was there with us. After we made the call, me, Chris, Duck, Peter-Paul and Nard went on Cloverlawn. At first we just drove down the street. We [saw] d parked near Tireman. He was pulling off and we were behind him. We went back to Mendota and Nard beeped him again. I don’t remember if b was there or not. After Nard called, we went back on Cloverlawn, me, Chris, Peter-Paul, Duck and Nard and parked. We gave him another address this time. Me, Chris, Duck and Nard got out of the car. We told Nard to go and stand in front of the address we gave d. We waited about twenty or thirty minutes and decided to leave because it was raining a little bit and d had not showed up. We all got back into the car and started to leave and that’s when we saw d. We came around the block and parked on the side street, I think it was Belton; but I’m not sure. Me, Chris and Duck got out. Me and Chris went to one side of the street. Duck was on the other. We were walking towards d. He was on Duck’s side of the street coming off the porch. D went to get in his car. That’s when the shooting started. D took off in his car. We went back to our car and went back on Pinehurst. Duck and Nard got out and we got out for a while. Then [m]e, Peter-Paul and Chris left.
Q. Was d alone in the car?
A. Now [sic], there was another guy in the car with him.
Q. Did d or the other guy return fire?
A. I don’t think so.
*708Q. What kind of gun did you, Duck and Chris have?
A. Me and Chris had Uzi’s, Duck had a .357 mag, the gun we got from Cliff.
Q. Why did you guys want to kill d?
A. Because Nard was working with us, then he quit us and was working for d. It was really Duck who wanted him.
Q. What happened to the guns?
A. I threw mine away on State Fair, near Cameron. I don’t know what Chris or Duck did with theirs.
Q. How many shots did you fire?
A. I’d say about ten.
Q. How far away from d were you?
A. About five or ten yards away.
Q. Did b know what was going down?
A. Yes.
Q. What are the names of the following people?
1. K-9? That’s me.
2. Duck? I don’t know but he stays on Cameron.
3. Chris? I don’t know his name either. He stays on Woodingham.
4. B? We call him Bam. I don’t know where he stays.
5. Peter-Paul? His first name is Walter. I don’t know where he lives.
Q. Have you read your statement?
A. Yes.
Q. Are there any corrections?
A. Yes, when we picked up Nard, Duck stayed in the car, Chris and Peter-Paul got out. Chris had the Uzi, Peter-Paul had the .357.
APPENDIX B
The jury considered the following confession from Walter Miller. (See Appendix A as a guide for the nicknames used throughout the statement.)
Q. Mr. Miller, have I explained your Constitutional Rights to you?
*709A. Yes.
Q. Do you understand them?
A. Yes.
Q. Have I or has any police officer threatened you or promised you anything?
A. No.
Q. Are you willing to give me a statement regarding the fatal shooting of Voncie Johnson which occurred 8-26-86 on Cloverlawn in the City of Detroit?
A. Yes I am.
Q. Are you giving me this statement freely and voluntarily?
A. Yes.
Q. Tell me what happened on that date.
A. A guy named Cliff and some other guy were working for the Farmer, both of them quit working for Farmer about four months before he, Farmer got killed. When they quit working for us they kept a .357 revolver, which was a house gun for the East side house that they ran. On the day the shooting happened, Duck came over to 9555 Pinehurst and said that Cliff wanted to give the gun back to us. B, Michael instructed us to get the gun. Me, Chris Phillips, k-9, Kerry, went in a black [C]ougar, I think it’s a 1979, over to Cliff’s house. Duck and a guy who I don’t know got into a blue car and led the way to Cliff’s. When we got to Cliff’s he was on the porch, k-9 got the gun from him, then Cliff’s mother came out and came up to our car and said hello. Before we left Duck got out the car he was in and got into our car. After we got the gun we left.
Q. Was anyone in the car armed before Cliff gave you the revolver?
A. Yes, k-9 had a Mack-10, Christian Phillips had a Uzi 9mm, I was unarmed, and Duck got the .357 from Cliff; but it wasn’t loaded. The rest of the guns were loaded.
Q. Okay, continue.
A. We were just going around the block when Duck spotted a gun [sic] who was walking out of a *710store. Duck said, that’s, then he said the guy’s name; but I don’t remember the name. We turned the corner and pulled over. Chris and me got out of the car and walked to an alley. Chris got behind a garbage dumpster and I was in front of it. The guy who was walking came across the street and started turning into the alley when I stopped him. I said don’t move. The guy stopped and said don’t kill me. Chris jumped out and was standing behind me. I grabbed the guy and walked him to the car and put him in the back seat with Duck, then I got in the back seat with him.
Q. Were either you or Chris armed?
A. Yes, I had the .357, it was unloaded, Chris had the Uzi.
Q. Okay, continue.
A. When we got the guy into the back seat, I told him to lady [sic] down on the floor and he did and we went back to 9555 Pinehurst. When we got there Chris, k-9 and Duck took him into the basement. I went upstairs and took care of a customer. B was not at the house when we first arrived, either Chris or k-9 went down the street, found b and told him what had happened. B then came back to the house with either Chris or k-9 and went into the basement. I was still upstairs with the customer; but when b arrived I went downstairs to see, to see what he had to say. Me, Chris and b were in one part of the basement talking about what happened. We told him about us going over there and getting the gun, and bringing the guy back with us. I went back upstairs with the customer and they all stayed downstairs. I could hear them talking; but I couldn’t hear what they were actually saying. Chris, k-9, b and Duck and the other guy left. They were gone for about five minutes and they all came back. They stood at the side of the house and were talking, by that time I was walking the customer to the door, she left and the guys got back into the [sic] and left again. About three to five minutes later a guy I know as c came over, I asked him if he knew where the guys were and he told me that they were around *711the corner. I left 9555 Pinehurst and went over to Mendota where they were. When I got to Mendota I went up on the porch and Chris, k-9, b, Duck and the other guy sat on the porch talking about the guy who had beeped, all I remember is that the guy said he was waiting for someone to call him back.
Q. Okay, continue.
A. We stayed on the porch for about fifteen minutes, and I went back on Pinehurst to check on the house, and then went back to Mendota. Everyone was still on the porch and I joined them. The guy finally called, when he called I was back on Pinehurst checking the house. I went back on Mendota and got the car and went and bought some gas and returned to Pinehurst. Everyone was there, Chris, b, k-9, Duck and the other guy. I parked the car and me, Chris, k-9 and b just started walking down the street and talking. That’s when I found out what was going down. B told me to get into the car and drive to Mendota and Westfield with the guy, and wait. I'went back to Pinehurst, got the guy, put him in the car and went to where b told me to go. I parked the car and waited for about five to ten minutes. Chris, k-9, and Duck came and got into the car, Chris told me to drive over on Cloverlawn because we were going on a mission and that we were going to meet the guy on Cloverlawn. I drove to Cloverlawn between Belton and Tireman, when we got there the guy who I took out of the Pinehurst house pointed out a little red car and said that’s them. They [sic] guy was coming off of the porch and was getting into his car, I speeded up to try to catch up with him, but he pulled off. He made a right on Tireman and circled the block. I tried to follow him but lost him. I caught back up with him on the sidestreet off of Tireman, I followed him and stopped on Brighton and Majestic. Chris, k-9 and Duck got out of the car and started to walk up Majestic towards the red car. Duck went into the alley. Chris and k-9 stayed on the sidestreet. By the time they got there the guy was gone. They *712came back into the car and I tried to follow the guy; but I lost him. We went back on Mendota, Chris, k-9, Duck and the other guy went inside, I drove off and went and made a phone call. I went back to the house on Mendota, and stood on the porch. All of them came out, Chris, k-9, Duck, b and the guy. B was mad. He didn’t say anything but by knowing him I could tell he was mad. Chris or K-9 said let’s go and I got back in the car with Chris, k-9, Duck and the other guy. Chris told me to go back on Cloverlawn and that they called the guy again and had given him another address. I drove to Cloverlawn and the red car wasn’t there. We sat there for about five minutes and pulled off. I drove back to Joy [R]oad, while driving east on Joy [R]oad we spotted the red car going west, by the railroad tracks. I turned on Alpine then right on Tireman, then to Roselawn. When I got to Roselawn and Belton, we saw the red car making a right onto Belton then another right onto North-lawn, heading to Joy [R]oad. I turned left on Belton to Cloverlawn then turned on Cloverlawn I proceeded towards Joy [R]oad. While driving down Cloverlawn I saw the red car on Mackenzie, I made a left on Joy [R]oad, Chris, k-9 and Duck were out of the car by this time. I dropped them off on Cloverlawn by the alley, I went into a lot on Northlawn and Joy Road, turned around then made a left on Joy [R]oad and picked all three of them up at Cloverlawn and Joy [R]oad. Once they got into the car I drove to Roselawn and made a right, going back to Tireman, then another right on Belton. I cruised up to the alley with the lights off and stopped. Chris, k-9 and Duck got out of the car and walked up to Cloverlawn. Before they got out either Chris or k-9 told me to wait and that I was to crash into the red car if they tried to get away. As they were walking away from our car I heard someone say, he turned around. I proceeded up Belton to Northlawn then to Mackenzie, turned and parked on the corner of Cloverlawn and Mackenzie. I saw the red car, it was like in the middle of the block. By the time I parked the shooting *713started. The red car pulled off, I realized that I wasn’t where I was supposed to be and pulled off behind him. The red car made a left on Tireman, I stopped on Cloverlawn and Belton and picked up Chris, k-9 and Duck. We tried to chase the car but he got away. We went back to the house, Wykes, that’s where we followed him to earlier, but he wasn’t there. Then we went back to Mendota, Chris, K-9, Duck and the other guy got out. I went and made another phone call and then went back to Mendota. Everyone was on the porch, Chris, k-9, Duck, b and the other guy. They took the car and told me to meet them back on Pinehurst. I walked back to Pinehurst, 9555, we all went inside and talked about what happened. Everyone was mad at me and blamed me for missing the guy. B told me you better start learning how to think. The guy who I didn’t know said you just signed my death warrant. We also discussed what to do with the guy who I didn’t know. B said to let him go. I left and went to my mother’s house. Everyone was still on Pinehurst when I left.
Q. What type of weapons did the three guys have who did the shooting?
A. Chris and k-9 had Uzi’s, Duck had the .357.
Q. Who loaded the .357?
A. I don’t know but before Duck left the car he checked it and said it was loaded.
Q. Did you fire any shots?
A. No I did not.
Q. Do you know [why] the hit was ordered?
A. No I don’t.
Q. Who ordered it?
A. B is the boss and he would have had to order the hit or approve of it.
Q. Could you tell [how] many people were in the red car?
A. Two men.
Q. Do you have a nickname?
A. Yes, Peter-Paul.
Q. How many shots were fired?
A. No I don’t.
*714Q. Do you know who the men in the red car were?
A. No I don’t.
Q. What relationship between you, Chris, k-9, Duck and b, Michael?
A. Me, Chris and b grew up knowing each other. I met K-9 after I got with the crew and that’s also when I met Duck. B was in the narcotics business. He was an underboss enforcer for and body guard for Farmer, he’s the guy who got killed on the expressway, Wendell Henry. After he got killed, b kind of took over Farmer’s action, he was still working for someone, but I don’t know who. Me, Chris, k-9, were the enforcers for b. An enforcer is a person who makes sure everything is going all right, and who straightens things out if there [sic] not.
Q. Do you know what happened to the guns that were used?
A. They were kept by the guys who had them.
Q. Have you read the statement?
A. Yes I have.
Q. Are there any additions or corrections you want made?
A. The only other thing is that it was not a planned hit for that day, we were only supposed to get the gun, the rest just happened afterwards.
Q. If a hit would be planned ahead of time, would you be informed of it?
A. No, that would be between b, Chris, and k-9, all I would do is drive, and I wouldn’t find out until it was about to happen.
Two justices concurred in result, but not in reasoning.
178 Mich App 439; 444 NW2d 201 (1989).
Watkins’ two statements were not introduced at trial because the prosecutor deemed them inconsistent and designed to shift blame. The prosecutor did, however, read the statements into the record for our benefit to demonstrate his discretion in not offering them to the jury for their review.
See appendices a and b.
The Court of Appeals reviewed Jordan’s and Miller’s claim that the statements were involuntarily given. After independently reviewing the record, the Court of Appeals concluded that the trial court did not err in finding that the statements were voluntarily given. People v Watkins, supra at 447-448.
Desmond Wilbert testified that he did not recognize his assailants.
The record does not contain a copy of the redacted statements.
Defendants Phillips, Jordan, Miller, and Watkins were convicted of first-degree murder, MCL 750.316; MSA 28.548, assault with intent to commit murder, MCL 750.83; MSA 28.278, kidnapping, MCL 750.349; MSA 28.581, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant Hunter was also convicted of first-degree murder and assault with intent to commit murder. Phillips, Miller, and Watkins were sentenced to mandatory life on the murder convictions, life imprisonment on the assault convictions, 30-60 years for the kidnapping convictions, and the mandatory two-year term of imprisonment for the felony-firearm sentences. Defendant Jordan was sentenced to natural life for the murder conviction, life for the assault conviction, 25-50 years for kidnapping, plus the mandatory two-year term for possession of a firearm during the commission of a felony. Defendant Hunter was sentenced to life imprisonment for the murder conviction, and to a term of imprisonment of 50-100 years for the assault conviction.
435 Mich 867 (1990). We, however, denied defendants Jordan’s and *683Miller’s applications for leave to appeal. Orders of the Supreme Court, entered July 18, 1990 (Docket Nos. 86852 and 87090).
The lead opinion incorrectly characterizes my statement as an attempt to infer that Bruton has been undercut or overruled by the subsequent "general acceptance of statements against penal interest . . . .” See ante, p 653, n 18. In Bruton, the Court assumed the inadmissibility, against the accused, of the implicating confession of his codefendant and centered upon the effectiveness of a limiting instruction, a question not at issue here.
MRE 804 provides in part:
11 Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
*684(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable person in his position would not have made the statement unless he 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.
Although Dean Wigmore’s reasoning has not been endorsed by all courts and commentators, the lead opinion’s criticism of his reasoning pertaining to the carry-over issue is unfounded. See ante, p 635, n 5.
Professor Morgan was the Prank C. Rand Professor of Law at Vanderbilt University, the Royal Professor of Law Emeritus and former Acting Dean of Harvard Law School, Reporter for the A.L.I. Code of Evidence, and author of numerous articles on evidence and related subjects.
People v Lettrich, 413 Ill 172; 108 NE2d 488 (1952); Brady v State, 226 Md 422; 174 A2d 167 (1961); Hines v Commonwealth, 136 Va 728; 117 SE 843 (1923).
People v Spriggs, 60 Cal 2d 868; 36 Cal Rptr 841; 389 P2d 377 (1964); People v Brown, 26 NY2d 88; 308 NYS2d 825; 257 NE2d 16 (1970).
It is noteworthy to mention that before the adoption of the rules of evidence, six states, through judicial opinions, adopted the rule without legislative authorization. Deike v Great Atlantic & Pacific Tea Co, 3 Ariz App 430, 432-433; 415 P2d 145 (1966); State v Leong, 51 Hawaii 581; 465 P2d 560 (1970); State v Higginbotham, 298 Minn 1, 4-5; 212 NW2d 881 (1973); Sutter v Easterly, 354 Mo 282, 289, 295-296; 189 SW2d 284 (1945); People v Brown, n 15 supra; Howard v Jessup, 519 P2d 913, 917 (Okla, 1973).
It is not my position that all commentators have disagreed with the argument urged by the dissent. Professor Bernard Jefferson has written a law review article arguing that Wigmore and the drafters of the Model Rules of Evidence are incorrect in suggesting that a declaration against penal interest involves a truth-telling frame of mind that carries over to statements other than those against interest. Jefferson, Declarations against interest: An exception to the hearsay rule, 58 Harv L R 1, 63 (1944).
I find Professor Jefferson’s argument, and the lead opinion’s reliance on it, unpersuasive. In my opinion, Judge Weinstein correctly concluded that, "[e]xperience with our intelligent juries suggests that this view is too pessimistic.” 4 Weinstein & Berger, Evidence, ¶ 804(bX3)[02], p 804-138. Indeed, after a trial judge examines a statement to determine its reliability and trustworthiness, there is no reason why, when admitting the statement, “the court should not explain to the jury the theory upon which this hearsay is being introduced so that it can evaluate more accurately the probative force of the disserving, neutral, and self-serving elements of the statement.” Id.
I do not agree with my colleagues’ argument that, under their narrow analysis, an inculpatory statement could be admitted under MRE 804(b)(3) if the statement "is also intrinsically and inseverably against the confessor’s interest, even analyzing the statement narrowly and separately.” Ante, p 649, n 14. My colleagues have not persuasively established a factual, or hypothetical, situation where such a statement could be entered under the rule. The only conclusion I can draw from their argument is that inculpatory statements could never be admitted under the penal interest exception, a result unintended by the drafters of the rule, which renders MRE 804(b)(3) meaningless.
See appendix A.
See appendix b.
It is evident that since the adoption of the Federal Rules of Evidence, the United States Supreme Court has consistently harmonized the goal of the Confrontation Clause by interpreting it in a manner sensitive to its purposes and sensitive to the necessities of trial and the adversary process. Maryland v Craig, 497 US 836, —; 110 S Ct 3157; 111 L Ed 2d 666, 681 (1990).
Justice Blackmun summarized this point in opining:
The Court’s cases have construed the Confrontation Clause in a pragmatic fashion, requiring "substantial compliance” with its purposes, see Ohio v Roberts, 448 US at 69; California v Green, 399 US [149] at 166 [90 S Ct 1930; 26 L Ed 2d 489 (1970)], but acknowledging the need to balance the interests of the accused against the public’s "strong interest in effective law enforcement,” Roberts, 448 US at 64; see also Mattox v United States, 156 US 237, 243 (1895). [Lee v Illinois, 476 US 530, 557; 106 S Ct 2056; 90 L Ed 2d 514 (1986).]
"Unavailability” is not a prerequisite to the use of hearsay when the states seek to admit a coconspirator’s statement made during the progress of the conspiracy. United States v Inadi, 475 US 387, 394; 106 S Ct 1121; 89 L Ed 2d 390 (1986). This is because special *693characteristics regarding the type of statement constitute evidence which cannot he replicated by in-court testimony at trial.
In Mancusi v Stubbs, supra, 408 US 213, the Court articulated the indicia-of-reliability standard as follows:
The focus of the Court’s concern has been to insure that there "are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,” Dutton v Evans [400 US 74, 89; 91 S Ct 210; 27 L Ed 2d 213 (1970)], and to "afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,” California v Green, [n 22] supra at 161. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these "indicia of reliability” ....
I disagree with my colleagues’ conclusion that the Lee Court envisioned "a careful and searching analysis of each speciñc factual assertion contained within any broader statement or confession.” See ante, p 645 (emphasis in original). See discussion pp 693-695.
The Lee Court did not hold, as the lead opinion suggests, that an inculpatory statement admitted under the penal interest exception violates the Confrontation Clause, nor does the opinion suggest that the typical Roberts analysis is inapplicable when an inculpatory statement is introduced under the penal interest exception. See ante, pp 6S5-656. The majority in Lee declined to accept the invitation to treat this statement as a simple declaration against penal interest.
We reject respondent’s categorization of the hearsay involved in this case as a simple "declaration against penal interest.” That concept defines too large a class for meaningful Confrontation Clause analysis. We decide this case as involving a confession by an accomplice which incriminates a criminal defendant. [Lee, 476 US 544, n 5. Emphasis added.]
The Court in Lee left open the situation that we are addressing today. That is, determining whether a statement introduced as a declaration against penal interest of one person, admitted substantively against a codefendant under circumstances in which the codefendant had no opportunity to confront and cross-examine the declarant and found reliable by the trial court, violates the Confrontation Clause.
The Wright Court noted that the residual hearsay exception "accommodates ad hoc instances in which statements not otherwise falling within a recognized hearsay exception might nevertheless be sufficiently reliable to be admissible at trial.” 111 L Ed 2d 653.
The United States Supreme Court has not decided whether a declaration against penal interest "falls within a firmly rooted hearsay exception.” Wigmore traced the development of the rule and concluded that a declaration against penal interest is firmly rooted in the common-law hearsay exceptions and is presumptively reliable. While the majority in Lee v Illinois did not address this issue, four justices issued an opinion finding that FRE 804(b)(3) is indeed a firmly rooted exception. Id. at 551-552 (Blackmun, J., joined by Burger, C.J., Powell and Rehnquist, JJ.).
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
Jordan and Miller gave their statements to police officers while in custody. This, of course, cuts against the reliability concerns of Layton and the trustworthiness guarantees required by Ohio v Roberts, and Lee v Illinois, supra. In my opinion, the presumption of unreliability has been overcome in this case because the trial court found that the statements were voluntarily made and no leniency in exchange for the statement occurred before trial. Moreover, the other factors of reliability which have been established support our conclusion that the statement bears the guarantees of trustworthiness required by the Confrontation Clause.
I find my colleagues’ statement that "common knowledge 'on the street’ ” supports their theory that Jordan and Miller believed that substantial benefits would be gained by "cooperating with the police and 'naming names’ ” remarkable. See ante, pp 659-660. Why would a person with "common knowledge on the street” confess crimes punishable by life without parole? What benefit is derived from inculpat*701ing codefendants in a crime, when the confessor will never be able to associate with society again?
In my opinion, my colleagues have relied more on speculation, rather than on the facts in the record and a proper understanding of Lee v Illinois, in criticizing my discussion concerning the trustworthiness of Jordan’s and Miller’s statements. See ante, pp 657-666. There is always room for speculation in a criminal trial. Yet when the facts so overwhelmingly support the conclusion that the statements bear the guarantees of trustworthiness, as in this case, I can only believe that the inculpatory statements were properly admitted against penal interest under MRE 804(b)(3).
The result reached by the lead opinion and the concurring opinion is that this case shall be remanded for a new trial without the use of Jordan’s and Miller’s statements. Since a majority has not been reached regarding how inculpatory statements can be used in future cases, they leave this issue open for another day.