Can a co-defendant's confession be used in trial of the other co-defendant? Under 803(24) its admissable as a statement against interest but the note in the Predicate Manual says it is likely to violate co-defenant's 6th amendment right to cross-examination. Should it be used if co-defendant can't be located?

Check Dewberry v. State, I don't remember the citation, but if I remember correctly, you may use the co-defendant's statement as long as it inculpates the co-defendant as well as the defendant that is being tried. Check the case for any other requirements.

Appellate courts have been very reluctant to let the statement against interest hearsay exception justify admission of co-defendant confessions that also incriminate the defendant. You can redact the part of the confession incriminating the defendant and make it admissible, but then it has limited probative value.

While the exception on its face seems to permit admission of the co-defendant confession, the Sixth Amendment Right to Confrontation generally trumps mere rules (unless the exception is accepted as a "firmly rooted" one).

For a good discussion of the Sixth Amendment issues, see Mendez v. State, 56 SW3d 880. In short, using the hearsay exception to get in a co-defendant confession, particularly in the absence of the co-defendant (which is why you want it in the first place) is a dangerous strategy.

Ditto JB. This is constitutional stuff. See Lilly v. Virginia, 526 U.S. 116 (1999). Some Court of Criminal Appeals' opinions on point can be misleading because they deal solely with the hearsay issue, and not the confrontation issue. Around here, we typically advise a trial prosecutor to do it only if the hearsay confession inculpates the declarant-codefendant more than the defendant and only if the hearsay confession may be the critical evidence standing between a guilty and a not guilty in the trial. Such use rests on pretty thin constitutional ground, and some of your most law-and-order Justices--Scalia and Thomas--are against you on this one.

Don't let defense attorneys put too much weight on Lilly. It was technically a plurarity opinion, although it could be argued that at least 5 justices had the same thought on whether the confession was admissible. So, I would not agree that the law is settled on this.

Satisfying the hearsay exception is not enough to get the confession admissible. You also have to satisfy the Confrontation Clause problem. However, the CC is not absolute. The law permits several forms of unconfronted hearsay to be admissible.

The prior posts' advice is correct. It's best if you can make a good argument that the co-D's confession was FULLY incriminatory. A confession that merely points the finger at the D is useless. In a sense you have to show the reliability of the co-D's confession before you can use it against the D.

Still, the best advice would be to avoid the appellate challenge and simply cut a deal with the least offensive defendant to have him testify against his buddy.

Larry Cunningham
Assistant Professor of Law &
Director of the Criminal Prosecution Clinic
Texas Tech University School of Law

Do you have to fragment the confession such that only the 'we' statements are included and the 'the other guy' statements are not?

To clarify:

We broke the window and climbed inside the victim's home. (admissible)

v.

The other guy broke the window and climbed inside (inadmissible) while I kept a lookout. (admissible)

Then we carried out the television set (admissible) and the other guy harmed the people inside. (inadmissible)

Would you be forced to redact any statment made where the speaker does not claim his/her portion of the illegal conduct?

That's the million dollar question with no easy answer. As the previous postings suggest, danger lurks at every corner. An appellate court is faced with balancing the 6th Amendment Right to Confront and Cross Examine the Witnesses (not available when using a nontestifying co-defendant's statements against interest).

Bingham, 987 S.W.2d 54 (CCA 1999) is another good one to read... some funny dissents too.

I felt like we should dust this conversation off in light of Crawford. I'd say don't use 803(24) anymore . . .