Anyone researched whether the defense can use a co-conspirator's statement to police under this rule? Co-defendant's case was dismissed without prejudice and believe co-def would take the 5th - defense counsel wants to use police statement that incuplates him in the crime. Have not found a case on point yet - anyone else have one?

Yes, the defense can use 803(24). In fact, I've seen some argue that it is really a defense-only rule, especially after Crawford. Emailed you an old brief.

[This message was edited by JohnR on 05-17-07 at .]

Thanks - I appreciate it. I think a problem in our case is that it was a statement made to the police during the investigation of the murder. That may make it more trustworthy. The trial attorneys have since added that real problem. The statement to police does not comply with 38.22 and the co-defendant plans to take the stand and assert his fifth amendment rights. Does the co-defendant have the right to waive the fifth amendment rights? Guess I need to make the topic: Can co-def use statements under 803(24) when the declarant has asserted his fifth amendment rights.

[This message was edited by pkdyer on 05-18-07 at .]

Look at the language of 38.22, Secs. 2 and 3--it says written or oral statements not admissible against the acccused. I don't think 38.22 bars defendant's use of a statement admissible under 803(24).

Look at the Cunningham factors, especially spontaneity and who statement was made to. If this is a deal where the declarant put it mostly on a third party and partly on himself in response to police questioning, it isn't spontaneous and the circumstances may not be trustworthy. You could then compare to cases like Lilly which talk about the desire to curry favor with authorities by putting the case on someone else. In other words, the Confrontation cases of late are very suspicious of any custodial statement used against the person who didn't make the statement. If those statements are unreliable for the State, they are unreliable for the defense.

Well the first part of the statement says "he balcked out and that he was at the lake with the defendant and victim dead. He never signed statement. After refusing to sign the statement he made an oral statement to detective that he killed him (or must have killed him, or something like that). I worry more about him taking the fifth and then the defendant gets to use his statements against him which are self-incriminating. I guess since he is not on trial that does not matter??

Whether he takes the 5th or not, his statements are coming in. He will either testify to exactly what is in the written statement, or the defense will read it to the jury to impeach him with.