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My Brother, My Witness Against Me: The Constitutionality of the "Against Penal Interest" Hearsay Exception in Confrontation Clause Analysis

NCJ Number
Journal of Criminal Law & Criminology Volume: 90 Issue: 3 Dated: Spring 2000 Pages: 827-873
Sarah D. Heisler
Date Published
47 pages
This note examines the history of the Supreme Court's Confrontation Clause jurisprudence and development of the relationship between the "against penal interest" hearsay exception and the Clause.
The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides that "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...." In Lilly v. Virginia, the Court properly held that accomplices' statements that inculpate a criminal defendant are not within a firmly rooted hearsay exception. Furthermore, the Court stated that the circumstances surrounding accomplice custodial confessions incriminating a defendant are presumptively unreliable. Thus, the prosecution must prove that the circumstances in which the statements were made bear sufficient guarantees of trustworthiness to make cross-examination unnecessary. The Court also authorized appellate courts to independently review the government's "particularized guarantees of trustworthiness" when deciding if admission of a declarant's out-of-court statement violates the Confrontation Clause. The note concludes that, while Lilly provided an excellent discussion of the constitutional dangers inherent in admitting an accomplice's custodial confession, it is unlikely that the Court has heard its last case on the admission of hearsay evidence under a Confrontation Clause analysis. Notes