In order to introduce the tape-recorded statements against Sanders, the declarant (Blair) must be unavailable as a witness according to Fed.R.Evid. 804. The statements by Blair fall under an exception to the hearsay rule, Fed.R.Evid. 804(b)(3), which provides that when a declarant is unavailable as a witness, statements against interest are not excluded by hearsay.
When a prosecutor seeks to introduce evidence of a statement that inculpates the accused, a number of courts require that statement be against the declarants interest and that there be corroboration. Factors that courts look at for corroboration include motive, general character of the declarant, whether more than one person heard the statement, whether it was made spontaneously and the timing of the declaration and relationship between the declarant and the witness.
Here, Blairs statement was certainly against his interest as it could subject him to criminal liability as well as Sanders. As for corroboration, Blair did not have a strong motive to lie because he did not know he was speaking with an undercover agent. He believed that he was speaking to a prospective interest in the counterfeiting scheme.
When these types of statements are introduced, Confrontation Clause issues arise. Under the 6th amendment, an accused has the right to confront the witness against him. The courts have shifted in their approach to the analysis regarding the confrontation clause.
In Ohio v. Roberts, the Court treated the question of when the Confrontatiion Clause prohibits the introduction of out of court statements against a criminal defendant. The Court created a reliability test and conditioned the admissibility of hearsay evidence on whether it fell under a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness”. Firmly rooted exceptions included excited utterances, statements concerning medical diagnoses, and co-conspirator statements. If the hearsay statement did not fall within a firmly rooted exception, particularized guarantees of trustworthiness may allow it to come in. The statement must have sufficient evidence of reliability.
The Roberts approach was criticized as vague and inadequate to protect the defendant’s rights. The Court in Crawford v. Washington rejected the Roberts approach, saying its “malleable approach often fails to protect against paradigmatic confrontation violations”. The Crawford court explained the test in Roberts is “too broad in that it applies the same mode of analysis whether or not the hearsay consists of ex parte testimony, which often results in close constitutional scrutiny in cases that are far removed from the core concerns of the clause. “ Additionally, the Court said “it is, at the same time, too narrow in that it admits statements that do consist of ex parte testimony upon a mere finding of reliability. Under this analysis, 804(b)(3), a statement against interest, does not fall within a “firmly rooted exception” so the court must turn to whether it has particular guarantees of trustworthiness.”
The Court in Crawford stepped away from the Roberts approach and instead created a new doctrine upon analyzing the Sixth Amendment. They first said that it only applies to “witnesses” against the accused and so, hearsay statements only raise concerns with the Confrntation Clause when a declarant acts like a witness. A witness was defined as one who bore testimony, and the court adopted a distinction between testimonial and non testimonial statements. The court in Crawford did not lay out what constitutes as testimonial or non testimonial, but stated that the Government can introduce testimonial statements where the declarant testifies during a trial, hearing, or where the defendant had a prior opportunity to cross examine the declarant and the declarant must be unavailable. While testimonial statements were not explicitly defined, the Court provided that testimonial statements almost always include “ex parte in- court testimony or its functional equivalent- that is material such as affidavits custodial examinations, prior testimony that the defendant was unable to cross-examine or similar pretrial statements
In addressing nontestimonial statements, the Court concluded that “Where non testimonial statements are at issue, it is inconsistent with the Framers design to afford the States flexibility in their development of hearsay law- as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Thus, where non testimonial statements are concerned, the reliability analysis in Ohio v. Roberts still applies.
Thus, the issue of whether the Confrontation clause will bar this testimony depends on whether the statements by Blair are testimonial or non testimonial. In Davis, the court went further to distinguish whether statements are testimonial or non-testimonial in the course of a 911 call interrogation. Based on Crawford and Davis, examples of non-testimonial statements include statements are made to resolve an emergency, are an excited utterance, or made principally for the purpose of obtaining medical treatment or diagnosis. But statements made in a more “adversarial” setting, such as preliminary hearing, before a grand jury, at a former trial, or police interrogations, are testimonial. Testimonial statements usually establish past conduct.
It would seem the statements, measured from the perspective of the declarant (Blair) were non testimonial because they were not made for the purposes of attempting to state what happened in the past or for the purpose of supporting what Blair thought was an investigative or accusatory process. In addition, Blair was not making the statement in a formal proceeding and had no reason to believe the statement would be used against him at a criminal proceeding. Where non testimonial statements are concerned, the sixth amendment confrontation clause requirement does not apply and the court has established that Roberts “is not dead.” Therefore, the reliability of these statements would need to be analyzed.
Under the Roberts standard, Blair’s comments, although against interest, do not fall under a firmly rooted exception and would not have been admissible unless there were particularized guarantees of trustworthiness. Finding reliability in a statement that is against declarants interest but inculpates another persons can be difficult because courts have concerns such as whether it is a statement that bolsters the accused position or if it is trying to shift blame. Here, there were statements made that could inculpate Blair, leaning towards reliable. In addition, Blair had no reason to think he was being subjected to police interrogation.
However, if the court for some reason found the statement testimonial, Confrontation clause anaylsis would come in. This would require the declarant to be unavailable and the accused have had a chance to confront the witness against him. While Blair is unavailable, Sanders never had an opportunity to cross examine Blair, so the statement would be excluded.