Accomplice Confession Without Cross Examination
Both the United States Constitution and the Colorado Constitution guarantee defendants in criminal cases the right to confront and cross-examine witnesses. U.S. Const. amend. VI, XIV; Colo. Const. art. II, 16.
The United States Supreme Court has recognized that this right is "uniquely threatened" when an accomplice's confession is sought to be introduced against such a defendant without the benefit of cross-examination. Lee v. Illinois, 476 U.S. 530, 541, 106 S. Ct. 2056, 2062, 90 L. Ed. 2d 514, 526 (1986); see also People v. Dement, 661 P.2d 675 (Colo. 1983).
After the trial in this case, the Supreme Court announced Lilly v. Virginia, 527 U.S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999), in which it concluded that the admission of a non-testifying accomplice's confession violated the defendant's Sixth Amendment right to be confronted with the witnesses against him.
In Lilly, the Virginia Supreme Court -- like the trial court in this case -- had concluded that the challenged statements were reliable, and thus admissible, because:
(1) the speaker was implicating himself as a participant in crimes and (2) elements of his statements were independently corroborated by other evidence. the Supreme Court reversed. After reaffirming its longstanding recognition that accomplice statements that shift or spread the blame to a criminal defendant are inherently unreliable, the Court acknowledged that the presumption of unreliability may be rebutted, but continued:
Nonetheless, the historical underpinnings of the Confrontation Clause and the sweep of our prior confrontation cases offer one cogent reminder:
It is highly unlikely that the presumptive unreliability that attaches to accomplices' confessions that shift or spread blame can be effectively rebutted when the statements are given under conditions . . . where the government is involved in the statements' production, and when the statements describe past events and have not been subjected to adversarial testing. Lilly v. Virginia, supra, 527 U.S. at 137, 119 S. Ct. at 1900, 144 L. Ed. 2d at 135.
Lilly is a plurality opinion. Thus, the People argue that its precedential effect is limited. However, all the justices in Lilly agreed that reversal was required; and our review of the various concurring opinions, as well as the other Supreme Court cases on which Lilly relies, leads us to conclude that the propositions for which it is cited here represent the opinion of the majority of the Court.
In People v. Newton, 966 P.2d 563 (Colo. 1998), the court outlined a three-part test that must be satisfied before a statement inculpating a defendant may be admitted:
(1) the witness must be unavailable, as required by CRE 804(a);
(2) the statement must tend to subject the declarant to criminal liability and must be the kind of statement that a reasonable person in the declarant's position would not have made unless the person believed it to be true;
(3) the People must show by a preponderance of the evidence that corroborating circumstances demonstrate the trustworthiness of the statement.
As to the third requirement, the supreme court stated -- consistent with Lilly -- that a trial court should limit its analysis to the circumstances surrounding the making of the statement and may not rely on other independent evidence that also implicates the defendant.
In so holding, the court noted that its prior decision permitting consideration of independent corroborating evidence had been "effectively overruled" by Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990). People v. Newton, supra, 966 P.2d at 575 n.15.
Appropriate factors for a court to consider in conducting the trustworthiness inquiry include: where and when the statement was made, what prompted the statement, how the statement was made, and what the statement contained. People v. Newton, supra.
Finally, in Blecha v. People, 962 P.2d 931 (Colo. 1998), the supreme court held that the admission of a codefendant's hearsay statement in a murder prosecution violated the defendant's right to confrontation and constituted constitutional error, but that the error was harmless beyond a reasonable doubt.
Under these cases, the codefendant's statement in this case was not admissible. Although, as the trial court found, the statement was clearly against the codefendant's penal interest, this fact was not sufficient under Lilly to establish reliability.
See Lilly v. Virginia, 527 U.S. at 138, 119 S. Ct. at 1901, 144 L. Ed. 2d at 135-36 ("The Commonwealth's next proffered basis for reliability -- thatthe accomplice knew he was exposing himself to criminal liability -- merely restates the fact that portions of his statements were technically against penal interest. . . . 'That a person is making a broadly self-inculpatory confession does not make more credible the confession's non-self inculpatory parts'").
Nor was it sufficient that other evidence corroborated portions of the statement. See Lilly v. Virginia, supra, 527 U.S. at 138, 119 S. Ct. at 1901, 144 L. Ed. 2d at 135, quoting Idaho v. Wright, supra ("to be admissible under the Confrontation Clause . . . hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial"); People v. Newton, supra.