Shenanigans at Bennigan’s: 8th Circuit Finds Affidavit Admitting to Shooting Inadmissible Under Rule 804(b)(3)

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement that:  

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and  

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

So, what exactly constites “corroborating circumstances that clearly indicate its trustworthiness,” and were those circumstances present in United States v. Henley, 2014 WL 4435845 (8th Cir. 2014)?

In Henley, Dominic Henley, James C. Smith, Jerry Elkins, Marshall Fry, Anthony Robinson, and Jerry Peteet were charged with racketeering conspiracy, and various counts of violent crime in aid of racketeering in connection with their involvement with the Wheels of Soul, an outlaw motorcycle gang. Evidence presented at trial indicated that Peteet shot Robert Taylor “in the buttocks in the parking lot of a Bennigan’s restaurant in Gary, Indiana.”

Prior to trial, Peteet asked that he be allowed to admit the affidavit of Barry Rogers, another member of the Wheels of Soul, in which Rogers admitted to shooting Taylor. The district court, however, granted the prosecution’s motion to exclude the affidavit, and this ruling prompted Peteet’s subsequent appeal.

Initially, the Eighth Circuit flagged a potential problem with the affidavit in that Rogers claimed that he shot Taylor in self-defense. The court then noted that “[t]he Rogers affidavit was not clearly against his own interest because in it he claims he shot Taylor in self defense.”

The Eighth Circuit, though, went on to acknowledge Peteet’s argument that Rogers had a prior felony conviction, meaning that his affidavit exposed him to prosecution for being a felon in possession of a firearm. The court, however, turned this argument aside, concluding that

As a fellow member of the Wheels of Soul, an organization based around loyalty to its members, Rogers had a motive to help Peteet. Moreover, numerous other witnesses testified that Peteet was the shooter. Only Peteet and his brother presented testimony that it had been Rogers. We conclude the district court did not clearly abuse its discretion in finding the affidavit unreliable and inadmissible.

This seems like the correct conclusion, but it also begs a question: How do we determine whether the “corroborating circumstances” criterion has been satisfied? Let’s say eight people corroborated the affidavit. That’s a good deal of corroboration. But let’s also say that ten eyewitnesses contradicted it. Or let’s say that a surveillance video showed someone looking like Peteet shooting the victim.

So, here’s my question: Does the “corroborating circumstances” test solely look at corroborating evidence, or does it also consider contradictory evidence? If there’s a high amount of corroborating evidence but also a high amount of contradictory evidence is that better or worse than if there’s a medium amount of corroborating evidence and a low amount of contradictory evidence?

-CM