Facially Exculpatory Yet Inherently Incriminating: Why Affirmative Defense Statements Should Qualify as Statements Against Penal Interest Under Rule 804(b)(3)
Written By: Timothy M. Pellegrino
Jerry Peteet could hardly contain himself as he read the affidavit his attorney had received only minutes before. “[I, Barry Rogers,] believed that [Robert Taylor] was going to fire at me due to the look on his face and I fired a second shot at his legs to cause him to drop the gun.” These were the words that Peteet had been waiting to hear for the more than two years since he was charged with the attempted murder of Taylor. The affidavit, signed under penalty of perjury, had been notarized only hours before. In it, Rogers took responsibility for the very attack that prosecutors were alleging Peteet had committed. Peteet’s lawyers were keenly aware that a jury might not believe Rogers’s account. Rogers and Peteet had been close friends for some time, and Rogers had taken several years to come forward with his version of events. Still, both Peteet and his lawyers knew that Rogers’s affidavit was Peteet’s best chance of convincing a jury he was not guilty of attempted murder. The affidavit would undoubtedly buttress the testimony of both Peteet and Peteet’s brother that Rogers had been the shooter. For the first time since he had been charged, Peteet breathed a sigh of relief. Unbeknownst to him, however, his jury would never see Rogers’s powerful admission .
Shortly after the United States Attorney’s Office received the Rogers affidavit, the Government filed a motion in limine to prevent Peteet from introducing the affidavit on the grounds that it was inadmissible hearsay. The Government’s motion was premised on the fact that Rogers would almost surely invoke his Fifth Amendment privilege if called to testify for the defense. Peteet’s lawyers would therefore seek to admit the statement under Federal Rule of Evidence 804(b)(3). That rule provides for an exception to the traditional bar against hearsay evidence if three conditions are satisfied. First, the declarant must be unavailable. Second, the statement must be against the declarant’s penal interest. That is, the statement itself must have “so great a tendency to . . . expose the declarant to . . . criminal liability” that “a reasonable person in the declarant’s position would have made [the statement] only if the person believed it to be true.” Third, the statement must be “supported by corroborating circumstances that clearly indicate its trustworthiness” . . . . Over the defense’s objection, the trial court ultimately agreed with the Government that Rogers’s affidavit did not qualify as a statement against penal interest. Peteet was ultimately found guilty of attempted murder and sentenced to 276 months in prison . . . . In affirming Peteet’s conviction, the Eighth Circuit became the second court of appeals to hold that affirmative defense statements—statements alleging that otherwise criminal conduct was justified or should be excused—are not statements against interest under Rule 804(b)(3) . . . .
Part I of this Note addresses background information necessary to understanding this evidentiary issue, including both a general review of hearsay law and the specific standards governing statements against penal interest under Rule 804(b)(3). With this foundation, Part II demonstrates why affirmative defense statements should qualify as statements against the declarant’s penal interest under Rule 804(b)(3). Finally, Part III explains why recognizing affirmative defense statements as statements against interest ultimately aligns with the liberal thrust of the Federal Rules of Evidence and the overall aims of the criminal justice system, a system that is designed, first and foremost, to protect the innocent.