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When a win isn't

A win is a win is a win.

At least, that's what the appellate attorney in State v. Swann must have figured.  The defendant had been convicted of felonious assault, and at trial he'd attempted to present evidence that another person had confessed to the shooting, under the "declaration against interest" exception to the hearsay rule provided by Evid.R. 804(B)(3).   One problem:  under that rule, a statement "tending to expose the declarant to criminal liability. . . is not admissible unless corroborating circumstances clearly indicate the truthworthiness of the statement."  The trial judge found that the proffered evidence -- testimony by four witnesses who were friends of both the defendant and the declarant -- didn't satisfy the "trustworthiness" requirement, and excluded the testimony.

So everybody trudged off to the court of appeals, which, by a 2-1 vote, reversed the conviction.  The dissenting judge found that the trial court properly applied 804(B)(3).  One of the other judges didn't, holding that the corroborating circumstances were sufficient to show that the statement was trustworthy, and should have been admitted.

And this is where things got interesting.  In 2006, the US Supreme Court decided the case of South Carolina v. Holmes, which the Court had unanimously reversed a decision excluding evidence of a third party's confession.  The third judge on the 10th District's panel decided that Holmes was dispositive, and wound up writing the majority opinion saying just that.

One problem:  the two cases really weren't that similar.  In Holmes, the trial judge had excluded the evidence of the declaration against interest on the basis of an earlier state supreme court holding that "where there is strong forensic evidence of an appellant's guilt, proffered evidence about a third party's alleged guilt does not raise a reasonable inference as to the appellant's own innocence."  The short version:  if the state's got a strong case, it doesn't matter how good the corroborating evidence of the third party's confession is, it doesn't come in.

There are some similarities between Swann and Holmes, to be sure:  in both situations, the trial judge excluded evidence which might have exonerated the defendant.  As the Holmes court noted, that posed a potential conflict with the defendant's Sixth Amendment right to present a defense.  But the main problem in Holmes was that the trial court had to analyze the state's forensic evidence in isolation, without considering the probative value of the defense's proffer of the third-party confession.  As the Court noted, it would make no more sense if the state decided the prosecution couldn't offer its forensic evidence because the defense's third-party confession was so strong.

Rule 804(B)(3), on the other hand, requires the judge to look only at the proffered evidence itself, and the Holmes court was quick to indicate that it wasn't calling traditional rules on that into question; in fact, it noted that "such rules are widely accepted, and neither defendant nor his amici challenge them here."

Still, a win is a win is a...  But a win for the wrong reason is an invitation for Supreme Court review, and that's exactly what happened in Swann.  So last week, the defendant's appellate attorney spent a very uncomfortable fifteen minutes fielding questions about the ruling and acknowledging the inapplicability of Holmes, and implicitly admitting that she would have very much liked it if the author of the Swann opinion had never heard of Holmes.

There might have been a way to salvage something out of the majority appellate court opinion in Swann, but it would have been tough.  There's a part of me that finds somewhat unsettling the idea that a judge can exclude a major portion of the defendant's case because he doesn't find it sufficiently reliable.  Even more troubling is that the trial court's decision in that regard is normally reviewable only for abuse of discretion.  And the prosecutor last week closed out the rebuttal portion of his closing argument by asking the Court that if it reverses and remands the case, it remind the appellate court to do just that.

I wouldn't be at all surprised if that's exactly what happens.

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