SUPREME COURT OF THE UNITED STATES

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No. 93-5256

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FREDEL WILLIAMSON, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the eleventh circuit

[June 27, 1994]

Justice Scalia , concurring.

When analyzing whether evidence can be admitted under the statement against penal interest exception to the hearsay rules, the relevant inquiry must always be, as the text directs, whether the statement "at the time of its making . . . so far tended to subject the declarant to . . . criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Fed. Rule Evid. 804(b)(3). I quite agree with the Court that a reading of the term "statement" to connote an extended declaration (and which would thereby allow both self inculpatory and non self inculpatory parts of a declaration to be admitted so long as the declaration in the aggregate was sufficiently inculpatory) is unsupportable. See ante, at 4-5.

Employing the narrower definition of "statement," so that Rule 804(b)(3) allows admission of only those remarks that are individually self inculpatory, does not, as Justice Kennedy states, %eviscerate the against penal interest exception." Post, at 7 (internal quotations and citation omitted). A statement obviously can beself inculpatory (in the sense of having so much of a tendency to subject one to criminal liability that a reasonable person would not make it without believing it to be true) without consisting of the confession "I committed X element of crime Y." Consider, for example, a declarant who stated: "On Friday morning, I went into a gunshop and (lawfully) bought a particular type of handgun and particular type of ammunition. I then drove in my 1958 blue Edsel and parked in front of the First City Bank with the keys in the ignition and the driver's door ajar. I then went inside, robbed the bank and shot the security guard." Although the declarant has not confessed to any element of a crime in the first two sentences, those statements in context are obviously against his penal interest, and I have no doubt that a trial judge could properly admit them.

Moreover, a declarant's statement is not magically transformed from a statement against penal interest into one that is inadmissible merely because the declarant names another person or implicates a possible co defendant. For example, if a lieutenant in an organized crime operation described the inner workings of an extortion and protection racket, naming some of the other actors and thereby inculpating himself on racketeering and/or conspiracy charges, I have no doubt that some of those remarks could be admitted as statements against penal interest. Of course, naming another person, if done, for example, in a context where the declarant is minimizing culpability or criminal exposure, can bear on whether the statement meets the Rule 804(b)(3) standard. The relevant inquiry, however--and one that is not furthered by clouding the waters with manufactured categories such as "collateral neutral" and "collateral self serving," see, e.g., post, at 3, 9--must always be whether the particular remark at issue (and not the extended narrative) meets the standard set forth in the Rule.