Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 71683-8
Title of Case: State of Washington
v.
Michael D. Crawford
File Date: 09/26/2002
Oral Argument Date: 05/23/2002
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
Thurston County;
99-1-01205-8
Honorable Richard A. Strophy, Judge.
JUSTICES
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Authored by Bobbe J. Bridge
Concurring: Gerry L. Alexander
Charles Z. Smith
Charles W. Johnson
Barbara A. Madsen
Richard B. Sanders
Faith E Ireland
Tom Chambers
Susan J. Owens
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Steven C. Sherman
Thurston Co. Deputy Pros. Atty.
2000 Lakeridge Dr SW
Olympia, WA 98502
Counsel for Respondent(s)
Thomas E. Doyle
Attorney At Law
PO Box 510
Hansville, WA 98340-0510
Patricia A. Pethick
Attorney At Law
PO Box 111952
Tacoma, WA 98411-1952
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Petitioner, NO. 71683-8
v.
EN BANC
MICHAEL D. CRAWFORD,
Respondent. Filed September 26, 2002
BRIDGE, J.--This case presents two issues: (1) whether a defendant waives
an objection under the confrontation clause to the admission of his wife's
hearsay statements by exercising his marital privilege to prevent his
spouse from testifying; and (2) whether the wife's statements are otherwise
admissible as an exception to the hearsay rule or as an interlocking
confession. We hold that a defendant does not waive his confrontation
rights when he invokes the marital privilege. We also conclude that the
statements here are admissible because the wife's statements interlock with
those of her husband and hence provide adequate indicia of reliability to
satisfy confrontation clause concerns.
FACTS
On August 5, 1999, Michael Crawford stabbed Richard Rubin Kenneth Lee at
Lee's apartment. State v. Crawford, noted at 107 Wn. App. 1025, 2001 WL
850119, at *1 (2001). Police arrested Crawford that evening and they
collected two taped statements from both Crawford and his wife, Sylvia, who
had been present at the time of the assault. Id. The first statements
contained roughly the same account of the attack: the three had collected
at Lee's house; Crawford left to buy alcohol; when he returned, Lee was
making sexual advances toward Sylvia; Crawford stabbed Lee twice. Id.
Several hours after police taped the first statements, they again
questioned the Crawfords independently regarding the events of August 5.
Id. Their stories were again similar to each other, but distinctly
different from the earlier version of the encounter. Id. This time the
Crawfords each revealed that the alleged sexual assault had actually
occurred several weeks earlier. Id. On the night in question, both
Crawfords contended, Michael became angry when Lee was mentioned and he and
his wife left to find Lee. Id. Sylvia directed her husband to Lee's
apartment and after talking with him for a short period, Crawford stabbed
Lee twice. Id. Although unclear, the main distinguishing factor in these
second statements was that Crawford alluded that Lee may have had something
in his hand when Crawford stabbed Lee, while Sylvia implied that Lee may
have grabbed for something after Crawford stabbed Lee. Id.
Crawford was charged with attempted first degree murder while armed with a
deadly weapon and first degree assault while armed with a deadly weapon.
Clerk's Papers (CP) at 2. At trial, Crawford claimed that he acted in self-
defense and he invoked the marital privilege to prevent his wife from
testifying against him. Report of Proceedings (RP) at 7-8. The trial
court admitted both of Sylvia's statements on the grounds that the
statements would not violate the marital privilege and because the court
determined that the statements were sufficiently reliable to alleviate
confrontation clause concerns. RP at 45, 53; RP at 219-21, Exs. 37, 38; RP
at 231, Exs. 41-42. A jury subsequently convicted Crawford of first degree
assault while armed with a deadly weapon. CP at 2. In an unpublished
opinion, a divided Court of Appeals concluded that Crawford did not waive
his right to confrontation when he invoked the marital privilege.
Crawford, 2001 WL 850119, at *1. It then held that admitting Sylvia's
second statement was reversible error because her statement did not possess
adequate indicia of reliability, nor did it interlock with Michael's second
statement. Id. at *5-7. Accordingly, the Court of Appeals reversed
Crawford's conviction. Id. at *1. We granted review.
WAIVER OF RIGHT TO CONFRONTATION
Crawford invoked the marital privilege, RCW 5.60.060, to keep his wife from
testifying against him at trial. RP at 7. The marital privilege in
Washington states in relevant part:
A husband shall not be examined for or against his wife, without the
consent of the wife, nor a wife for or against her husband without the
consent of the husband; nor can either during marriage or afterward, be
without the consent of the other, examined as to any communication made by
one to the other during marriage.
RCW 5.60.060(1). Neither Crawford nor the State called Sylvia to testify.
See RP at 7-14. Crawford claims, however, that his confrontation right
under the Sixth Amendment, as applied to the states through the due process
clause of the Fourteenth Amendment, was violated when Sylvia's hearsay
statements to the police were admitted at trial.
The State contends that Crawford waived his right to confrontation
when he neglected to call Sylvia at trial, relying on State v. Salazar, 59
Wn. App. 202, 796 P.2d 773 (1990) and In re Personal Restraint of Sauve,
103 Wn.2d 322, 692 P.2d 818 (1985), to support its position. While
instructive, both Salazar and Sauve contain a key distinction from the case
before us, making them distinguishable. In those cases the witness was
'available'; Sylvia Crawford was not an available witness.
In Salazar, the defense counsel did not call an informant suggesting that
defense was unable to locate him. 59 Wn. App. at 216. Rejecting the
assertion that the witness was unavailable, the court stated, 'We have held
that a defendant who fails to call an available hearsay declarant waives an
objection under the confrontation clause to admission of the hearsay.'
Salazar, 59 Wn. App. at 217 (citing State v. Borland, 57 Wn. App. 7, 12,
786 P.2d 810 (1990)). 'Similarly, defense counsel's failure to call {the
informant}, who we assume was available absent persuasive evidence to the
contrary, waived any confrontation clause objection.' Id.
In Sauve, the defendant claimed that his confrontation right was violated
when the police officer who received an informant's tip, failed to testify
at the suppression hearing. 103 Wn.2d at 329. Although the court did not
directly hold that Sauve had waived his confrontation right, it did note
that the defendant's failure to exercise his rights at trial did not
constitute a denial of such rights by the court. Sauve, 103 Wn.2d at 330
(citing State v. Murphy, 35 Wn. App. 658, 669 P.2d 891 (1983); State v.
Whittington, 27 Wn. App. 422, 618 P.2d 121 (1980)). Accordingly, the court
stated,
There is no evidence that petitioner asked the State for the testimony of
the officer who received the tip, nor did petitioner himself attempt to
call the officer to the stand. The State was not given a chance at trial
to either present the officer's testimony or prove his unavailability. The
failure of petitioner to exercise his rights at trial does not constitute a
denial of such rights.
Id.
In both Salazar and Sauve the witnesses were available, but the defense
failed to call them at trial. In the case presented, in contrast, the
witness, Sylvia Crawford, was unavailable to testify because Michael
Crawford had invoked his marital privilege. The marital privilege
explicitly states that '{a} husband shall not be examined for or against
his wife, without the consent of the wife, nor a wife for or against her
husband without the consent of the husband.' RCW 5.60.060(1). This
language specifically denies Sylvia the ability to testify either for or
against her husband, rendering her unavailable as a witness. Although
Michael, not Sylvia, invoked the privilege, the result is the same--Sylvia
was unavailable to testify, unlike the witnesses in Salazar and Sauve.
Therefore, the situation before us is distinct from Salazar and Sauve and
it does not logically follow that Crawford waived his confrontation rights
by not calling his wife to testify.
The conclusion that Crawford did not waive his confrontation rights is
supported by a decision from this court that directly addressed the issue
of marital privilege and extrajudicial statements by a third party. See
State v. Burden, 120 Wn.2d 371, 374, 841 P.2d 758 (1992). In Burden, this
court stated, 'Here, the defendant asserts admission of Mary Burden's
extrajudicial statements by third persons would indirectly violate the
testimonial privilege and place {the defendant} in the position of having
to waive the privilege to refute the testimony or allow the testimony
without cross examination. We have previously rejected this argument.'
Id. (citing State v. Kosanke, 23 Wn.2d 211, 160 P.2d 541 (1945)). By
recognizing the rejection of this argument, this court implied that the
testimonial privilege is not violated by admissible hearsay statements and,
furthermore, that the defendant does not have to waive the marital
privilege to refute the testimony. Therefore, the defendant cannot be said
to have waived his right to cross examination.1
Further, courts are hesitant to accept waiver of a defendant's Sixth
Amendment rights because of their significance in the trial process. See
generally John R. Kroger, The Confrontation Waiver Rule, 76 B.U. L. Rev.
835 (1996). ''There are few subjects, perhaps, upon which {the Supreme
Court} and other courts have been more nearly unanimous than in their
expressions of belief that the right of confrontation and cross-examination
is an essential and fundamental requirement for the kind of fair trial
which is this country's constitutional goal.'' Id. at 840 (quoting Pointer
v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965)).
Where a waiver has been recognized, the waiver usually occurs when the
defendant has inappropriately caused the witness's unavailability. Id. at
844. Thus, ''a defendant may waive the right to confront witnesses against
him when his own misconduct is responsible for a witness's unavailability
at trial.'' Id. at 842 (quoting United States v. Potamitis, 739 F.2d 784,
788 (2d Cir. 1984)). Misconduct is not apparent when a defendant invokes a
statutory privilege, however. See United States v. Barlow, 693 F.2d 954,
962 (6th Cir. 1982) (suggesting that only sham marriage would result in
waiver, but admitting legitimate spouse's grand jury testimony when it met
adequate guarantees of trustworthiness). In the case before us Crawford
invoked a recognized statutory privilege.2
As the Court of Appeals acknowledged here, forcing the defendant to choose
between the marital privilege and confronting his spouse presents an
untenable Hobson's choice. Crawford, 2001 WL 850119, at *1. The Court of
Appeals aptly noted that this court traditionally has 'not required a
defendant to waive one right to preserve another.' Id. (citing State v.
Michielli, 132 Wn.2d 229, 246, 937 P.2d 587 (1997) (upholding dismissal of
case where defendant was forced to choose between waiving right to speedy
trial or right to effective assistance of counsel); State v. Price, 94
Wn.2d 810, 814, 620 P.2d 994 (1980) (stating that forcing defendant to
choose between effective assistance of counsel and speedy trial
impermissibly prejudices defendant)). Both Michielli and Price present
situations where a defendant was forced to balance his trial rights and
ultimately select one right to the exclusion of the other. To force a
defendant to choose the more difficult position of confronting his spouse
on the stand, or to assume that he has waived his confrontation right by
electing not to call his wife, presents a similarly untenable choice and
undermines the marital privilege itself. Therefore, we hold that Crawford
did not waive his right to confrontation when he invoked the marital
privilege.
ADMISSIBILITY OF HEARSAY
If Crawford did not waive his right to confrontation, the State contends in
the alternative that Sylvia's out-of-court statements to the police were
admissible hearsay that did not violate the Sixth Amendment.
This court has noted a distinction between in-court testimony and
extrajudicial statements by a spouse. In drawing a distinction between the
two, we have concluded that hearsay statements may be admissible under
certain circumstances. Burden, 120 Wn.2d at 377. Forcing a spouse to
testify, however, challenges the policy purposes behind the privilege. In
Burden, this court determined that the policy purposes--fostering domestic
harmony and preventing discord, reflecting the natural repugnance of having
one spouse testify against the other, and preventing the testifying spouse
from having to choose between perjury, contempt of court, or jeopardizing
the marriage--supported this distinction. Id. at 375 (citing State v.
Thorne, 43 Wn.2d 47, 55, 260 P.2d 331 (1953); State v. Wood, 52 Wn. App.
159, 163, 758 P.2d 530 (1988); Teresa Virginia Bigelow, Comment, The
Marital Privileges in Washington Law: Spouse Testimony and Marital
Communications, 54 Wash. L. Rev. 65, 70 (1978-79)). We concluded that the
latter two purposes would not be affected by allowing third person
testimony, because the spouse would not be testifying in court, and
questioned the applicability of the first purpose. Burden, 120 Wn.2d at
375-76. Thus, as we have acknowledged, confronting a spouse on the stand
is quite distinct from admitting an extrajudicial statement.
To assess whether an extrajudicial hearsay statement is admissible we apply
a multilayered analysis, in consideration of the valuable constitutional
protections afforded by the Sixth Amendment. Simply because a statement
falls within a hearsay exception does not mean that it will satisfy the
Sixth Amendment. State v. Rice, 120 Wn.2d 549, 565, 844 P.2d 416 (1993).
Therefore, the court will employ specific safeguards ''to ensure that the
proffered evidence offers some reliability in terms of the declarant's
perception, memory and credibility -- a function traditionally performed by
cross examination.'' Id. at 566 (quoting State v. Anderson, 107 Wn.2d 745,
750-51, 733 P.2d 517 (1987)).
First, the statements must be admissible under the rules of evidence.
Rice, 120 Wn.2d at 564. Second, the statements must contain a sufficient
indicia of reliability and trustworthiness to satisfy the requirements of
the confrontation clause. Id. A firmly rooted exception to the hearsay
rule will satisfy this requirement. State v. Davis, 141 Wn.2d 798, 845, 10
P.3d 977 (2000). If the exception is not firmly rooted, then the court
will consider nine nonexclusive factors to determine the relative
reliability of the hearsay statements.3 Rice, 120 Wn.2d at 565-66; State
v. Whelchel, 115 Wn.2d 708, 722-25, 801 P.2d 948 (1990). Alternatively,
the indicia of reliability test can be met if the statements 'interlock' in
accordance with our decision in Rice. 120 Wn.2d at 569-70.
Sylvia's first statement to the police is not hearsay because it was not
offered to prove the truth of the matter asserted.4 ER 801(c). Instead,
as the Court of Appeals noted, it was offered to demonstrate that the
Crawfords lied about the circumstances preceding the assault. Crawford,
2001 WL 850119, at *5. Considering that out-of-court statements raise
hearsay and confrontation clause objections only when they are offered to
prove the truth of the matter asserted, Sylvia's first statement is not
inherently objectionable. State v. Parris, 98 Wn.2d 140, 145, 654 P.2d 77
(1982). It will be admissible, however, only if it is relevant under ER
401, and it is relevant only if her second statement is admitted.
Sylvia's second statement is hearsay: The declarant is unavailable at trial-
-because Crawford invoked the marital privilege--and the statement is being
offered to prove the truth of the matter asserted. ER 801(c). The State
contends that Sylvia's second statement is admissible under ER 804(b)(3),
the hearsay exception for a declarant's statement against penal interest.
A statement against penal interest is not considered a firmly rooted
exception to the hearsay rule, however. Whelchel, 115 Wn.2d at 715.
Therefore, 'out-of-court statements from a nontestifying codefendant made
against penal interests and which inculpate the defendant are admissible
against the defendant only when they bear adequate indicia of reliability.'
State v. St. Pierre, 111 Wn.2d 105, 113, 759 P.2d 383 (1988) (citing
Anderson, 107 Wn.2d at 750; State v. Dictado, 102 Wn.2d 277, 287-88, 687
P.2d 172 (1984)). Thus, we must determine whether the statement contains a
sufficient indicia of reliability to satisfy the confrontation clause. See
Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).
Before we determine whether the statement is sufficiently reliable to
satisfy confrontation clause concerns, we must assess which portions of the
statement were actually against Sylvia's penal interest. Only the portions
of Sylvia's statement that are self-inculpatory will be admitted under the
statement against interest exception to the hearsay rule. See State v.
Roberts, 142 Wn.2d 471, 491-97, 14 P.3d 717 (2000); ER 804(b)(3). In
Roberts this court adopted the Supreme Court's rejection of a 'whole
statement' approach to defendant declarations. 142 Wn.2d at 494 (adopting
Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431, 129 L. Ed. 2d
476 (1994)). Therefore, even though self-exculpatory statements may be
included within a statement that is generally inculpatory, only those
portions that are actually self-inculpatory are admissible. Id. at 492-94.
A statement against interest, or self-inculpatory statement, is defined as:
A statement which was at the time of its making so far contrary to the
declarant's pecuniary or proprietary interest, or so far tended to subject
the declarant to civil or criminal liability, or to render invalid a claim
by the declarant against another, that a reasonable person in the
declarant's position would not have made the statement unless the person
believed it to be true.
ER 804(b)(3) (emphasis added).
Crawford objected to the admission of Sylvia's statements that he was
''infuriated,'' ''past tipsy,'' and that he said Lee ''deserves a ass
whoopin.'' Crawford, 2001 WL 850119, at *7 n.3 (Armstrong, C.J.,
dissenting). He also objected to the admission of Sylvia's statement
regarding whether Lee reached for or possessed a weapon when Michael
assaulted him because it allegedly rebutted his own testimony and damaged
his self-defense claim.
While potentially damaging to Michael, these statements are all inculpatory
of Sylvia as well. It was Sylvia who showed Michael where to find Lee and
she was present through the duration of the violent encounter. She walked
away from the stabbing with Michael and did not turn to the police when she
had the opportunity. As a potential accomplice,5 therefore, Sylvia would
benefit from limiting Michael's involvement; the lesser his charge, the
lesser her accomplice liability. Sylvia's statements that Michael was
'infuriated,' 'past tipsy,' and that he said Lee 'deserves a ass whoopin'
would not shift blame from her to Michael, but rather it could increase
Michael's culpability, and potentially hers as well. Furthermore, if
Sylvia knew that Michael wanted to give Lee an 'ass whoopin' and took
Michael to find Lee, this fact could support a charge against Sylvia for
accomplice liability because she could be viewed as encouraging or aiding
the facilitation of a crime. See RCW 9A.08.020(3)(a). Likewise, Sylvia's
assertion that Lee may have reached into his pocket, possibly for a weapon,
but had empty hands when Michael stabbed him, would be against her
interest. Rather, she would benefit her own case if she had said that Lee
wielded a weapon throughout the confrontation and that Michael was merely
protecting himself. Therefore, we conclude that these statements were self-
inculpatory and admissible hearsay, provided they meet a sufficient indicia
of reliability.
Because a codefendant's confession is presumed unreliable,6 the statement
must either meet a firmly rooted exception to the hearsay rule7 or provide
some indicia of reliability, such as interlocking with the defendant's own
confession. St. Pierre, 111 Wn.2d at 112-13. The State asserts that
Sylvia's second statement is admissible as an interlocking confession with
Michael's second statement. See generally Rice, 120 Wn.2d 549 (adopting
Lee v. Illinois, 476 U.S. 530, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986)).
As this court recognized in Rice, '{w}hen a codefendant's confession is
virtually identical {i.e., interlocks} to that of a defendant, it may be
deemed reliable.' Id. at 570 (citing Lee, 476 U.S. 530). Hence an
interlocking confession will serve the same purpose as the nine-factor test
in assessing reliability. Id.
The Court of Appeals here held that, although the Crawfords' statements
were 'very similar,' they differed regarding whether Lee was armed when
Michael stabbed him. Crawford, 2001 WL 850119, at *6. Following are the
two statements for comparison.
Sylvia's statement:
Q: did Kenny do anything to fight back from this assault
A: (pausing) I know he reached into his pocket . . . or somethin' . . . I
don't know what
Q: after he was stabbed
A: he saw Michael coming up. He lifted his hand . . . his chest open, he
might of went to go strike his hand out or something and then (inaudible)
Q: okay, you, you gotta speak up
A: okay, he lifted his hand over his head maybe to strike Michael's hand
down or something and then he put his hands in his . . . put his right hand
in his right pocket . . . took a step back . . . Michael proceeded to stab
him . . . then his hands were like . . . how do you explain this . . . open
arms . . . with his hands open and he fell down . . . and we ran
(describing subject holding hands open, palms toward assailant)
Q: okay, when he's standing there with his open hands you're talking about
Kenny, correct
A: yeah, after, after the fact, yes
Q: did you see anything in his hands at that point
A: (pausing) um um (no)
Ex. 42, at 6-7.
Michael's statement:
Q: okay. Did you ever see anything in {Lee's} hands
A: I think so, but I'm not positive
Q: okay, when you think so, what do you mean by that
A: I coulda swore I seen him goin' for somethin' before, right before
everything happened. He was like reachin', fiddlin' around down here and
stuff . . . and I just . . . I don't know, I think, this is just a
possibility, but I think, I think that he pulled somethin' out and I
grabbed for it and that's how I got cut . . . but I'm not positive. I, I
my mind goes blank when things like this happen. I mean, I just, I
remember things wrong, I remember things that just doesn't, don't make
sense to me later.
Ex. 44, at 7.
Although the Court of Appeals concluded that the statements were
contradictory, upon closer inspection they appear to overlap. The Court of
Appeals stated that Sylvia's version of the story had Lee grabbing for
something only after he had been stabbed, while Michael stated that Lee may
have had something in his hand before the attack. Crawford, 2001 WL
850119, at *6. However, when asked whether Lee fought back from the
assault, Sylvia states that Lee 'lifted his hand over his head maybe to
strike Michael's hand down or something and then he put his hands in his .
. . put his right hand in his right pocket . . . took a step back . . .
Michael proceeded to stab him . . . .' Ex. 42, at 7. She also previously
stated that she was unsure how Michael received the cut on his hand. Id.
at 6. Thus, it is unclear from Sylvia's statement when, if ever, Lee
possessed a weapon.
Michael's statement is equally ambiguous. He states, 'I coulda swore I
seen him goin' for somethin' before, right before everything happened. He
was like reachin', fiddlin' around down here and stuff . . . and I just . .
. I don't know, I think, this is just a possibility, but I think, I think
that he pulled somethin' out and I grabbed for it and that's how I got cut
. . . but I'm not positive.' Ex. 44, at 7. Thus, both of the Crawfords'
statements indicate that Lee was possibly grabbing for a weapon, but they
are equally unsure when this event may have taken place. They are also
equally unsure how Michael received the cut on his hand, leading the court
to question when, if ever, Lee possessed a weapon. In this respect they
overlap.
Self-defense is at issue in this case, so admittedly the timing of Lee's
possession of a weapon is significant. However, both of the Crawfords'
statements are ambiguous as to whether Lee ever actually possessed a
weapon. The interlocking confession rule is designed to admit 'virtually
identical' statements. Rice, 120 Wn.2d at 570. As the dissent from the
Court of Appeals noted, and we agree, 'neither Michael nor Sylvia clearly
stated that Lee had a weapon in hand from which Michael was simply
defending himself. And it is this omission by both that interlocks the
statements and makes Sylvia's statement reliable.' Crawford, 2001 WL
850119, at *7 (Armstrong, C.J., dissenting). Because Sylvia's and
Michael's statements are virtually identical, admission of Sylvia's
statement satisfies the requirement of reliability under the confrontation
clause.
CONCLUSION
We hold that a defendant does not waive his Sixth Amendment right to
confront an adverse witness when he invokes the marital privilege to keep
his wife from testifying at trial. Thus, Michael Crawford did not waive
his confrontation clause rights when he invoked RCW 5.60.060 and refused to
call his wife, Sylvia, to testify at his trial. Sylvia's pretrial
statements to the police, at issue in this case, were admissible, however,
because they were self-inculpatory and they interlocked with Michaels' own
admissible statements.
We reverse the Court of Appeals and reinstate the conviction.
WE CONCUR:
1 Citing Kosanke, the Burden court further supported its position that the
admission of the testimony neither indirectly violated the marital
privilege nor forced the defendant to waive the privilege to refute the
testimony.
'{T}he court {has not gone} so far as to hold that relevant and material
evidence could not be adduced merely because, in order to refute the same,
the wife of a defendant might have to be called as a witness. In this case
the wife of appellant was not called as a witness by respondent, nor was
the attention of the jury called to her in such a way as to require
objection on the part of appellant in order to preserve his rights under
the statute. . . . {T}he fact that refutation of competent evidence would
required the wife being a witness does not make it erroneous to adduce the
testimony. The statute {testimonial privilege} was not violated either
directly or indirectly.'
Burden, 120 Wn.2d at 374 (quoting Kosanke, 23 Wn.2d at 217-18). According
to this passage it is clear that the marital privilege still stands, as
well as the right to confront the witness; neither has been waived.
2 Although no formula has emerged for application of the confrontation
waiver rule, case law suggests six major legal issues that courts will
resolve before applying the doctrine: '(1) witness unavailability, (2)
cause of unavailability, (3) intent, (4) standard of proof, (5) statement
reliability, and (6) waiver hearing procedure.' Kroger, supra, at 846.
The key element for this case is the cause of the unavailability. 'Two
paradigmatic ways in which a defendant satisfies the causation requirement
have evolved: murder and threats.' Id. at 849. From this statement it is
apparent that the evolution of the waiver doctrine has not been directed at
the legitimate invocation of statutory privileges, absent threat or other
indication of malfeasance.
3 The nine factors include: (1) whether the declarant, at the time of
making the statement, had an apparent motive to lie; (2) whether the
declarant's general character suggests trustworthiness; (3) whether more
than one person heard the statement; (4) the spontaneity of the statement;
(5) whether trustworthiness is suggested from the timing of the statement
and the relationship between the declarant and the witness; (6) whether the
statement contains express assertions of past fact; (7) whether the
declarant's lack of knowledge could be established by cross-examination;
(8) the remoteness of the possibility that the declarant's recollection is
faulty; and (9) whether the surrounding circumstances suggest that the
declarant misrepresented the defendant's involvement.
4 The defense counsel did not object to the admission of the statements as
hearsay when they were presented at trial. See RP at 219-32. Defense
argument appears to hinge on the previous invocation of the marital
privilege and right to confrontation. See RP at 7-21, 37.
5 An accomplice is someone who with knowledge that it will promote or
facilitate the commission of a crime either (1) solicits, commands,
encourages, or requests such other person to commit the crime or (2) aids
or agrees to aid the other person in planning or committing the crime. RCW
9A.08.020(3)(a).
6 Although Sylvia is not a codefendant, as she has not been formally
charged with a crime, her role is similar to that of a codefendant. She
was present during the assault, was arrested and gave a statement to the
police concerning the events, and had an arguable motive to shift the blame
away from herself. Her role in this case thus suggests applying the Rice
interlocking confession analysis by analogy.
7 As previously noted, a statement against penal interest is not a firmly
rooted hearsay exception for purposes of the confrontation clause.