620
Kennedy, J., concurring in judgment
subject him to criminal liability and would not constitute a statement against his penal interest"). At the other extreme, when there was no promise of leniency by the government and the declarant was told that he had a right to remain silent and that any statements he made could be used against him, the courts have not required exclusion of the declarant's statement against interest. See id., at 348-349; United States v. Garcia, 897 F. 2d 1413, 1421 (CA7 1990) (declarant not motivated by desire to curry favor; "voluntarily made his statement after being advised of his Miranda rights and did not enter into any plea agreements with the government"). This kind of line-drawing is appropriate and necessary, lest the limiting principle regarding the declarant's possible desire to obtain leniency lead to the exclusion of all statements against penal interest made to police, a result the Rule and Note do not contemplate.
In sum, I would adhere to the following approach with respect to statements against penal interest that inculpate the accused. A court first should determine whether the declarant made a statement that contained a fact against penal interest. See ante, at 604 (opinion of O'Connor, J.) ("Some of Harris' confession would clearly have been admissible under Rule 804(b)(3)"). If so, the court should admit all statements related to the precise statement against penal interest, subject to two limits. Consistent with the Advisory Committee's Note, the court should exclude a collateral statement that is so self-serving as to render it unreliable (if, for example, it shifts blame to someone else for a crime the defendant could have committed). In addition, in cases where the statement was made under circumstances where it is likely that the declarant had a significant motivation to obtain favorable treatment, as when the government made an explicit offer of leniency in exchange for the declarant's admission of guilt, the entire statement should be inadmissible.
Page: Index Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NextLast modified: October 4, 2007