Rethinking the Limits of the ... - Gonzaga Universityblogs.gonzaga.edu/gulawreview/files/2011/01/gonlr44.11.pdf · Constitutional Avoidance: The Case Study of the Corroboration Requirement

Rethinking the Limits of the Interpretive Maxim ofConstitutional Avoidance: The Case Study of the

Corroboration Requirement for Inculpatory DeclarationsAgainst Penal Interest (Federal Rule of Evidence 804(b)(3))

Edward J. hmwinkelried*

TABLE OF CONTENTS

I. THE HISTORY OF THE DRAFTING PROCESS CULMINATING IN THE FINAL,

ENACTED VERSION: THE EVOLUTION OF FEDERAL RULE OF EVIDENCE

804 (B )(3) ........................................................................................................... 193A. The Adoption of the Federal Rules of Evidence ..................................... 193

1. The B asic Chronology ...................................................................... 193a. The Prelim inary D raft ............................................................... 195b. The Revised D raft ...................................................................... 196c. The Revised Definitive and Supreme Court Drafts ................ 197d. The House of Representatives .................................................. 198e. The Senate and the Conference Committee ............................. 198

2. A R ecurring Th em e ........................................................................... 199B. The Criticism of the Final, Enacted Version of Rule 804(b) (3) ............. 199C. The Judicial Response to the Criticism: The Addition of the Gloss

to the Text of Rule 804(b) (3) .................................................................... 200D. Subsequent Efforts to Expressly Amend Rule 804(b) (3) to Include a

Corroboration Requirement for Prosecution Hearsay .......................... 201H. A CRITICAL EVALUATION OF THE PROPRIETY OF RELYING ON THE

CONSTITUTIONAL AVOIDANCE MAXIM AS A JUSTIFICATION FOR

READING A CORROBORATION REQUIREMENT FOR PROSECUTION

HEARSAY INTO RULE 804(B)(3) ....................................................................... 202A. The Interpretive Maxim of Constitutional Avoidance ............................ 202B. The General Impact of Textualism on the Second Condition for

Invoking the Constitutional Avoidance Maxim ...................................... 205C. The Specific Impact of Textualism on the Judicial Gloss of a

Corroboration Requirement for Prosecution Hearsay OfferedUnder Rule 804(b) (3) ............................................................................... 2091. The Statutory Text ............................................................................. 2092. The Extrinsic Legislative History Materials .................................... 212

H I. C ON CLUSION .................................................................................................... 2 13

* Edward L. Barrett, Jr., Professor of Law, University of California, Davis, former chair,

Evidence Section, American Association of Law Schools.

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"If adhering to this canon of construction [to preserve the constitutionality of anact] is torturing a word, then we all must be prepared to occasionally inflict fortylashes."

In re Hathaway1

At trial, the Defense calls Witness A. On direct examination, the Defenseattempts to elicit Witness A's description of an out-of-court statement by Declarant Bthat tends to exculpate the Accused C. The Prosecutor objects on hearsay grounds.The Defense argues that Declarant B's statement qualifies as a declaration against herpenal interest under Federal Rule of Evidence 804(b)(3). 2 At the time of thestatement, Declarant B should have realized that the statement exposed her tocriminal liability, and Declarant B is unavailable to testify at trial. The Prosecutionconcedes both the disserving quality of the statement and B's unavailability at trial.However, the Prosecution points out that the statute requires the Defense to alsoestablish "corroborating circumstances clearly indicat[ing] the trustworthiness of thestatement." 3 The Defense admits that there is no independent corroboration forDeclarant B's statement. The trial judge rules as a matter of law that B's statement isinadmissible.

Now the tables are turned. The Prosecution calls Witness D. On directexamination, the Prosecution endeavors to introduce D's description of an out-of-court statement by Declarant E that tends to inculpate the Accused. Now the Defenseobjects on hearsay grounds. Like the Defense in the prior hypothetical, theProsecutor argues that Declarant E's statement qualifies as a declaration against penalinterest. Like Declarant B's statement, Declarant E's statement was contrary to E'spenal interest when he made it; and like B, E is unavailable as a witness at trial. Likethe Prosecutor in the prior hypothetical, the Defense now contends that the judgeshould require corroboration of "the trustworthiness of the statement" as a conditionto admitting testimony about E's statement. However, the Prosecutor properly pointsout that the statute, Rule 804(b)(3), requires corroboration only in the case of

1. 630 N.W.2d 850, 867 (Mich. 2001), quoted in 2A NORMAN J. SINGER & J. D. SHAMBIESINGER, STATUTES AND STATUTORY CONSTRUCrION § 45.11, at 82 n. 13 (7th ed. 2007).

2. FED. R. EviD. 804(b)(3) reads:The following are not excluded by the hearsay rule if the declarant is unavailable as awitness: [a] statement which was at the time of its making so far contrary to the declarant'specuniary or proprietary interest, or so far tended to subject the declarant to civil orcriminal liability, or to render invalid a claim by the declarant against another, that areasonable person in the declarant's position would not have made the statement unlessbelieving it to be true. A statement tending to expose the declarant to criminal liability andoffered to exculpate the accused is not admissible unless corroborating circumstancesclearly indicate the trustworthiness of the statement.3. Id.

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CORROBORATION REQUIREMENT

statements "offered to exculpate the accused.'A Consequently, the trial judgeoverrules the objection and permits the introduction of D's testimony.

At first blush, the differing outcomes seem unfair in the extreme. One tenet ofthe adversary system 5 is the principle that rules such as evidence 6 ought to be appliedin an evenhanded fashion 7 to both sides. As the late Professor Irving Youngerobserved, the adversary system is committed to "[t]he evenhandedness of justice."8

Professor Younger supported the basic assumption that, "once [the accused]confront[s] the [prosecuting] sovereign in court, the rules of the game [should] be thesame for both."9 The differential application of the hearsay rule to prosecution anddefense hearsay under Federal Rule 804(b)(3) appears to be at odds with that tenet.

Given the seeming unfaimess of this differential treatment, on many occasionsdefense attomeys have argued that, although the text of Rule 804(b)(3) imposes acorroboration requirement only on hearsay "offered to exculpate the accused,"' 0 thecourts should construe the statute as also prescribing the requirement for hearsayincriminating the accused. The United States Supreme Court itself declined to reachthe merits of the argument." I Moreover, in a 1993 decision one court of appealreserved decision on the question.12 However, as we shall see in Part I of this article,every federal court of appeal that has reached the merits of this question has sustainedthe defense argument.' 3

4. Id. See United States v. Jackson, 540 F.3d 578 (7th Cir, 2008).5. In the criminal context, the litigation system is accusatory as well as adversary. Hence,

there are special limitations under the Fourth and Fifih Amendments on the extent to which theprosecution may force the accused to serve as a source of incriminating evidence against himself orherself See U.S. CoNsT. amends. IV & V

6. STEPHAN LANDSMAN, READINGS ON ADVERSARIAL JUSTICE: THE AMERICAN APPROACHTOADJUDICATiON 4 (1988).

7. Id. at 2.8. See Irving Younger, Sovereign Admissions: A Comment on United States v. Santos, 43

N.YU. L. REv. 108, 108 (1968).9. Id.10. FED. R. EviD. 804(b)(3).11. Williamson v. United States, 512 U.S. 594, 605 (1994) (Scalia, J. concurring) ("We...

need not decide whether, as some Courts of Appeals have held, the second sentence of Rule804(b)(3)-'A statement tending to expose the declarant to criminal liability and offered to exculpatethe accused is not admissible unless corroborating circumstances clearly indicate the trustworthinessof the statement' . . .---also requires that statements inculpating the accused be supported bycorroborating circumstances") (emphasis omitted); see also Am. Auto. Accessories, Inc. v. Fishman,175 F.3d 534, 540 (7th Cir. 1999).

12. United States v. Williams, 989 F.2d 1061, 1068 (9th Cir. 1993).13. E.g., Maugeri v. State, 460 So.2d 975, 977 n.3 (Fla. Dist. Ct. App. 1984) (explaining that

it has been universally held that inculpatory statements must be supported by corroboratingcircumstances); see generally MICHAEL H. GRAHAM, 4 HANDBOOK OF FEDERAL EviDENCE § 804:3, at578 (6th ed. 2006).

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The courts' receptivity to this defense argument is understandable. The criticsmount several, plausible constitutional attacks on the differential treatment. Someargued that the difference runs afoul of the Equal Protection guarantee of theFourteenth Amendment. 14 Other critics suggest that a literal interpretation of Rule804(b)(3) would violate the Sixth Amendment Confrontation Clause.

The Federal Rules of Evidence took effect in 1975. 5 A few years later, theSupreme Court handed down its decision in Ohio v. Roberts.6 The Roberts Courtinvoked the Confrontation Clause and announced a general rule that prosecutionhearsay must be reliable.'7 The Court explained that the prosecution could satisfy therule by demonstrating that the testimony either fell "within a firmly rooted hearsayexception" or bore "particularized guarantees of trustworthiness."' 8 It was difficult tosatisfy Roberts by contending that a declaration against penal interest fell within a"firmly rooted hearsay exception."' 9 The treatment of such statements asexceptionally admissible was a minority view at both the time of the adoption of theSixth Amendment and the effective date of the Federal Rules.20 In that light, therewas a strong case that absent "particularized guarantees of trustworthiness" in theform of corroboration,2' the introduction of this type of prosecution hearsay offendsthe Confrontation Clause. The lower courts extended Rule 804(b)(3)'s corroborationrequirement to inculpatory prosecution hearsay in order "[t]o bring [the statute]within [the Confrontation Clause's] mandate for reliability.... . 22 The corroborating

14. Peter W. Tague, Perils of the Rulemaking Process: The Development, Application, andUnconstitutionality of Rule 804(b)(3) ' Penal Interest Exception, 69 GEO. L.J. 851, 989-98 (1981);see generally Edward J. Imwinkelried, The Right to "Plead Out" Issues and Block the Admission ofPrejudicial Evidence: The Diferential Treatment of Civil Litigants and the Criminal Accused as aDenial of Equal Protection, 40 EMORY L.J. 341 (1991); Edward J. Imwinkelried, Of Evidence andEqual Protection: The Unconstitutionality of Excluding Government Agents'Statements Offered asVicarious Admissions Against the Prosecution, 71 MINN. L. REv. 269 (1986).

15. RONALD L. CARLSON, EDWARD J. IMWINKELRIED, EDWARD J. KIONKA & KRISTINE

STRACHAN, EVIDENCE: TEACHING MATERIALS FOR AN AGE OF SCIENCE AND STATUTES 20 (6th ed.

2007).16. 448 U.S. 56(1980).17. Id. at66.18. Id.19. See, e.g., Lilly v. Virginia, 527 U.S. 116, 134 (1999) ("accomplices' confessions that

inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as thatconcept has been defined in our Confrontation Clause jurisprudence.").

20. 2 McCoRMICK ON EVIDENCE §§ 318-19, at 520-25 (Kenneth S. Broun ed., 6th ed. 2006).21. Idaho v. Wright, 497 U.S. 805, 819-20 (1990) (holding that in determining whether

prosecution hearsay testimony is sufficiently reliable, the trial judge must consider only thecircumstances surrounding "the making of the statement"). The prosecution may not rely on otherextrinsic circumstances, even those corroborating the statement, to satisfy the Confrontation Clause.Id. at22.

22. United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978); see also United States v.Riley, 657 F.2d 1377, 1383 n.7 (8th Cir. 1981) ("in order to provide the 'indicia of reliability' and

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evidence provides the needed "particularized guarantees of trustworthiness." Ineffect, the courts invoked the hoary interpretive maxim of constitutional avoidance:23

If a statutory language is subject to two plausible interpretations--one raisingsubstantial doubts about the constitutionality of the legislation and another mootingthose doubts--the second interpretation is preferable. 24 In short, the existence ofdoubts about the validity of a literal interpretation of Rule 804(b)(3) under the SixthAmendment cuts in favor of construing the statute as extending the corroborationrequirement to both prosecution and defense hearsay.

Two developments now necessitate a rethinking of this line of authority. Tobegin with, Ohio v. Roberts is no longer the law of the land. In 2004, the SupremeCourt rendered its decision in Crawford v. Washington.25 In Crawford, the SupremeCourt abandoned the reliability approach taken in Roberts. Writing for the majority,Justice Scalia disparaged the reliability test as "amorphous" and "manipulable. '2 6

Instead, drawing on historical accounts of the development of the ConfrontationClause, the Justice stated that the key to the Confrontation Clause is a distinctionbetween testimonial and nontestimonial statements. He elaborated:

Various formulations of this ... class of "testimonial" statements exist: "ex partein-court testimony or its functional equivalent-that is, material such as affidavits,custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expectto be used prosecutorially, . ..extrajudicial statements . ..contained informalized testimonial materials such as affidavits, depositions, prior testimony,or confessions;" "statements that were made under circumstances which wouldlead an objective witness reasonably to believe that the statement would beavailable for use at a later trial....

When the statement is testimonial in character, the Sixth Amendment requires that theprosecution show that the accused had a prior opportunity to question the declarantand that the declarant is unavailable at trial.

Crawford was a bit unclear as to the status of nontestimonial statements. On theone hand, the Court did not squarely rule that such statements are exempt fromconstitutional scrutiny under the Confrontation Clause. Crawford left open thepossibility that nontestimonial statements remained subject to Roberts' requirementfor a showing of reliability. On the other hand, Justice Scalia stated that the Court's

'guarantees of trustworthiness' required by the confrontation clause").23. 5 CHRISTOPHER B. MUELLER & LAiRD C. KnATRICK, FEDERAL EVIDENCE § 8:130, at

196 (3d ed. 2007).24. See SINGER E7 AL., supra note 1, § 45:11, at 81-83.

25. 541 U.S. 36 (2004).26. Id. at 63, 68.27. Id at 51-52 (citations omitted).

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rationale in Crawford "casts doubt" on the assumption that the Sixth Amendmentapplies to nontestimonial hearsay.28 Nontestimonial statements "are far removedfrom the core concerns of the Clause."29 The question, though, seems to have beenresolved by the Court's 2006 decision in Davis v. Washington.30 Once again, JusticeScalia authored the lead, majority opinion. He remarked that the specific facts inCrawford made it unnecessary to decide "whether the Confrontation Clause appliesonly to testimonial hearsay... ."31 Surveying the Court's prior decisions under theclause, the Justice generalized that "[w]ell into the 20th century" the Court had"carefully applied" the Clause "only in the testimonial context." 32 He concluded thatneither precedent nor policy requires the extension of the Clause to nontestimonialhearsay. This Sixth Amendment development severely weakens the argument that aliteral interpretation of 804(b)(3), dispensing with a corroboration requirement forprosecution hearsay, violates the Confrontation Clause. Post-Davis, if the statementis nontestimonial, the Clause is inapplicable. Alternatively, if the statement istestimonial, corroboration is irrelevant; the dispositive issues are whether there was aprior opportunity to question and whether the declarant is presently unavailable.

The second development is statutory rather than constitutional. As Part II of thisarticle notes, in the past thirty years, the federal courts in particular have substantiallychanged their approach to statutory construction. At one time, the courts mostlyfollowed the legal process approach to statutory interpretation. That approach positedthat legislators act reasonably and in good faith to pursue public interest.33 On thatbenign premise, the courts made the further assumption that just as legislatorsendeavored to provide reliable insights into legislative intent in the statutory text, theywould also furnish trustworthy guidance in extrinsic materials such as committeereports.34 Legal process theorists placed so much trust in extrinsic material, the netresult was a relative depreciation of the importance of the statutory text.

In contrast, during the past thirty years, the courts have shifted away from legalprocess and toward a more textualist philosophy. Relying on political scienceresearch, contemporary courts tend to conceive of legislation as compromises struckbetween the legislature and special interest groups. That conception has prompted

28. See id. at 61.29. Id. at 59-60.30. 547 U.S. 813 (2006).31. Id. at 823.32. Id. at 824. See Robert P. Mosteller, Confiontation as Constitutional Criminal

Procedure: Crawfords Birth did not Require that Roberts Had to Die, 15 J.L. & POL'Y 685, 686(2007) ("Whorton v. Bockting, [127 S.Ct. 1173 (2007),] ... states in unmistakable terms thatRoberts is dead and that the Confrontation Clause of the Sixth Amendment has no role in excludingunreliable hearsay that is nontestimonial.").

33. Edward J. Imwinkelried, Evidence Pedagogy in the Age of Statutes, 41 J. LEGAL EDUC.227,229 (1991).

34. See Imwinkelreid, supra note 33, at 229-30.

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courts to assign greater value to the statutory text. The text is the only thing that hasthe force of law, and the political science research establishes that special interestgroups often attempt to manipulate extrinsic legislative materials. As previouslystated, under the constitutional avoidance maxim, the court should prefer and select astatutory interpretation that moots significant doubts about the statute'sconstitutionality if the interpretation is a "plausible" one. The advent of textualismraises the bar for characterizing an interpretation as plausible; if text is primary, theinterpretation must be one that the statutory text can reasonably support.

The thesis of this article is that the courts' past interpretation of Rule 804(b)(3) isunsound. The statutory text simply cannot bear the interpretation that the statuteextends the corroboration requirement to inculpatory statements as well asexculpatory ones. As we shall see in Part II, moderate textualist courts usuallyconsider extrinsic legislative history material; but they allow such material to trumpthe apparent plain meaning of text only when the material establishes a contrarymeaning with great clarity. A careful review of the legislative history of Rule804(b)(3) reveals no such intent. More broadly, this article urges that textualismdemands a more scrupulous application of the constitutional avoidance maxim in thefuture. For its part, the Supreme Court has invoked this maxim in a growing numberof cases.35 However, if the maxim is to be applied consistently with the newtextualist philosophy of interpretation, the proposed interpretation mooting theconstitutional doubts should ordinarily have a firm grounding in the statutorylanguage. The courts' prior interpretation of Rule 804(b)(3) lacks such a grounding.

I. THE HISTORY OF THE DRAFTING PROCESS CULMINATING IN THE FINAL, ENACTEDVERSION: THE EVOLUTION OF FEDERAL RULE OF EVIDENCE 804(B)(3)

This part of the article is primarily descriptive. It traces the history of thecorroboration requirement under Rule 804(b)(3) through four stages: the initialadoption of the Federal Rules of Evidence; the ensuing criticism of the omission of acorroboration requirement for inculpatory hearsay; the courts' subsequent addition ofa requirement by way of judicial gloss to the statute; and finally the attempts toamend the statute to incorporate such a corroboration requirement.

A. The Adoption of the Federal Rules of Evidence

1. The Basic Chronology

To appreciate the history of the statute, we must review two earlier SupremeCourt cases: Donnelly v. United States36 decided in 1913 and Bruton v. UnitedStates3 7 rendered in 1968.

35. Erwin Chemerinsky, Raising Constitutional Doubts, TRL at 68 (Jan. 2002).36. 228 U.S. 243 (1913).

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As previously stated and until recently, although most courts recognized ahearsay exception for declarations against interest, they did not apply the exception todeclarations disserving penal interest.38 Donnelly is one of the leading casesfollowing the traditional view. However, in Donnelly, Justice Holmes dissented,arguing that it is irrational to admit declarations disserving pecuniary interest whileexcluding statements contrary to penal interest. 39 Common sense suggests that astatement acknowledging criminal liability for murder-exposing the declarant to thedeath penalty-is at least as reliable as a statement admitting a civil debt for $100.00.However, Justice Holmes did not favor the carte blanche admission of declarationsagainst penal interest. In one passage in his dissenting opinion in Donnelly, heindicated that as a further safeguard, the proponent should be required to demonstratesome additional "circumstances pointing to [the statement's] truth."40 That passagegave birth to the supposed requirement for corroboration of declarations against penalinterest.

While Donnelly dealt with defense hearsay, in Bruton the proponent was theprosecution. At common law, there was a hearsay exception for vicarious admissionsby co-conspirators4' - the doctrine now codified as a hearsay exemption in Federal

42Rule of Evidence 801(d)(2)(E). Suppose a statement by a conspirator does notsatisfy the foundational requirements for the doctrine. For example, the conspiratormight have made the statement after he was arrested; ordinarily a statement at thattime does not promote the purposes of the conspiracy. Assume further that although aconspirator's statement does not fall within that doctrine, the conspirator and theaccused are being tried jointly. One fact is clear: The statement is not admissible assubstantive evidence against the accused under the conspirator doctrine. If the judgegives the jury a limiting instruction,43 may the prosecutor introduce the statement atthe joint trial? Originally, the Supreme Court answered that question in theaffirmative.44 Later, reversing its position, the Court decided Bruton,45 holding that ifthe statement does not fall within a hearsay exception and the confessing conspiratordoes not subject himself or herself to cross-examination, it is a denial of confrontationto admit at the joint trial the statement implicating the accused.46 The Courtrealistically assessed the jury's ability to follow the limiting instruction and concluded

37. 391 U.S. 123 (1968).38. MCCORMICK, supra note 20, §§ 318-19, at 520-22.39. 228 U.S. at 277-78 (Holmes, J. dissenting); see also Tague, supra note 14, at 867.40. Tague, supra note 14, at 868 (quoting Donnelly, 228 U.S. at 277 (Holmes, J.,

dissenting)).41. McCoRMIcK, supra note 20, § 259, at 452.42. FED. R. EviD. 801 (d)(2)(E).43. FED. R. EvID. 105.

44. Delli Paoli v. United States, 352 U.S. 232, 233 (1957).45. 391 U.S. 123 (1968).46. Id. at 126.

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that under these circumstances, the instruction was inadequate protection for theaccused.47 In Bruton, the conspirator's statement did not fall within the co-

48conspirator doctrine, and the prosecution evidently did not argue that the statementfell within any other hearsay exception such as declaration against penal interest.Bruton did not rule that the Confrontation Clause precluded applying the declarationagainst penal interest exception to a third party's statement implicating the accused.However, as we shall soon see, some mistakenly assumed that was the case.

Bruton was decided in the late 1960s. Early in that decade, in his capacity ashead of the United States Judicial Conference, Chief Justice Warren appointed acommittee to study the question of whether a uniform set of evidence rules wasfeasible and desirable.49 The committee answered the question in the affirmative.50

The Chief Justice then appointed an advisory committee, subject to the StandingCommittee on Rules of Practice and Procedure, to draft the rules.51

a. The Preliminary Draft

After several meetings and public sessions, the committee set about the draftingtask. It released its Preliminary Draft in 1969.52 In drafting the provision governingthe declaration against interest exception, the committee made several decisions. Tobegin with, the committee adopted Justice Holmes' position in Donnelly that thereought to be a declaration against penal interest exception.53 However, the committeestopped short of adopting Holmes' suggestion that there be a corroborationrequirement.54 Moreover, the committee adopted a broad reading of Bruton and

47. If the jurors are likely to disregard the limiting instruction and use the evidence indeciding the accused's guilt, functionally the accomplice becomes an accuser for Sixth Amendmentpurposes. The Sixth Amendment Confrontation Clause accords the accused a right to confront-thatis, cross-examine--accusers. However, since the accomplice has elected not to testify, theintroduction of the accomplice's hearsay statement will violate the accused's right to cross-examine.Id. at 124-26; see also Nelson v. O'Neil, 402 U.S. 622, 626 (1971).

48. 1 EDWARD J. IMWITNELRIED, PAUL C. GLANNELLI, FRANcIs A. GILLIGAN & FREDRIC I.

LEDERER, COURTRooM CRIMINAL EVIDENCE § 1109, at 444-46 (4th ed. 2005).49. RONALDL. CARLSONETAL.,supra note 15,at 18.

50. Id.51. Id. at 19.52. Id.; see also Tague, supra note 14, at 853 n. 1.53. Tague, supra note 14, at 866-67. The Preliminary Draft provision read:A statement which was at the time of its making so far contrary to the declarant'specuniary or proprietary interest, or so far tended to subject him to civil or criminalliability or to render invalid a claim by him against another or to make him an object ofhatred, ridicule, or social disapproval, that a reasonable man in his position would not havemade the statement unless he believed it to be true. This example does not include astatement or confession offered against the accused in a criminal case, made by acodefendant or other person implicating both himself and the accused. Id. at 866.54. Id. at 867-68.

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concluded the draft provision with the following sentence: "This example does notinclude a statement or confession offered against the accused in a criminal case, madeby a codefendant or other person implicating both himself and the accused 55 -

which became known as the "Bruton sentence."56

The Justice Department immediately attacked the draft provision and sent thecommittee three letters.57 In the letters, the Department urged the committee to deleteany declaration against penal interest exception.58 The Department expressed its fearthat it would be too easy for an accused to obtain fabricated testimony that a thirdparty had confessed to the alleged crime.5 9 In the alternative, the Departmentcontended that if the committee retained a declaration against penal interestexception, the committee should add the condition that the defense offer "othersubstantial evidence which tends to show clearly that the declarant, and not thedefendant, is in fact the person guilty of the crime for which the defendant is ontrial. '60 At this point, the committee was unpersuaded.6'

b. The Revised Draft

The committee released its Revised Draft in March 1971.62 The committee didnot make any substantive changes from its Preliminary Draft of the declarationagainst interest provision. 63 The Revised Draft omitted a corroboration requirementfor defense hearsay but included the Bruton sentence restricting prosecutionhearsay.64 The Justice Department renewed its objections to the provision, but thedepartment's advocacy did not convince the committee to change its position.65

However, at this point in the chronology, Senator John McClellan, the Chair ofthe Senate Subcommittee on Criminal Laws and Procedures of the Senate JudiciaryCommittee, took an interest in the draft rules.66 He favored the imposition of acorroboration requirement for defense hearsay offered under the declaration againstpenal interest exception.67 He analogized to the corroboration requirement enforced

55. Id. at 866-67.56. Id. at 867.57. Idat869.58. Id.59. Id.60. Id. at 870.61. Id. at870-71.62. Id. at 871.63. Id. at 871-72.64. Id.65. Id. at 872.66. Id. at 873.67. Id. at 873-75.

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when the prosecution attempts to introduce an accused's confession.68 Further, hetook issue with the Bruton sentence and demanded its deletion.69

The committee sat up and took notice of McClellan's criticisms. As previouslystated, he chaired an important Senate subcommittee. Moreover, he threatened tointroduce legislation reducing the Supreme Court's rulemaking power.70 Then ChiefJustice Burger indicated that he thought Senator McClellan's threat was credible and,in that light, it was advisable to modify the Revised Draft to placate the Senator.7 ' Inorder to do so, the committee modified its draft in two respects. First, the committeevoted to add a corroboration requirement: "Statements tending to expose thedeclarant to criminal liability and offered to exculpate the accused must, in addition,be corroborated in order to be admissible."72 Second, the committee dropped theBruton sentence from its draft.73 The Standing Committee, which the advisorycommittee was subordinate to, unanimously approved these modifications.74

c. The Revised Definitive and Supreme Court Drafts

Later in 1971 the advisory committee released a Revised Definitive Draft,75

including the modifications requiring corroboration but deleting the Bruton sentence.76For his part, Senator McClellan appeared satisfied with the modified provision. In

contrast, the Justice Department once again called on the committee to entirely77abandon a declaration against penal interest exception. As on previous occasions,

the department persuaded neither the advisory committee nor the StandingCommittee.78 Eventually, the Standing Committee submitted its draft, including themodified declaration against penal interest exception, to the Supreme Court.79 In late1972, the Court promulgated the Supreme Court Draft based on the RevisedDefinitive Draft,80 and on February 5, 1973, the Court transmitted the draft toCongress.

8 1

68. Id. at 875.69. Id. at 878.70. Id. at 873.71. Id. at 874.72. Id. at 877.73. Id. at 878-79.74. Id. at 880.75. Id. at 853 n.1,881-82.76. Id. at 882.77. Id. at 882-83.78. Id. at 883-84.79. Id. at 884.80. Id.81. Id.

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d. The House of Representatives

The first Congressional body to review the draft was the Special Subcommitteeon Reform of Federal Criminal Laws of the House Judiciary Committee.12 During itshearings, one of the key witnesses was Judge Henry J. Friendly.83 In his testimony,Judge Friendly essentially repeated the Justice Department's argument that there wasa grave risk the accused would abuse the declaration against penal interest exceptionas a vehicle for introducing fabricated testimony about third-party confessions to thecrime for which the accused was standing trial.84 He contended the draft'scorroboration requirement was worded too weakly.85 In a June 12, 1973 markupsession, staff counsel tightened the wording of the corroboration provision8 6-- thelanguage that eventually was enacted by Congress. 87 As rewritten, the sentencereads: "A statement tending to expose the declarant to criminal liability and offered toexculpate the accused is not admissible unless corroborating circumstances clearlyindicate the trustworthiness of the statement."88 Both the advisory committee and theStanding Committee opposed the insertion of the adverb "clearly,"89 but theiropposition was unavailing. The subcommittee's final draft included the toughenedcorroboration requirement for defense hearsay.

At the same time, though, the subcommittee reinstated the Bruton sentence.90

Thus, the House subcommittee made one change benefitting the prosecution andanother helping the defense. The subcommittee's draft of the provision passed theHouse without any floor discussion.91

e. The Senate and the Conference Committee

The next stop for the draft was the Senate Judiciary Committee.92 Thatcommittee partially agreed with the House. The committee approved the rewordedcorroboration provision.93 However, the committee jettisoned the Bruton sentence.94

The full Senate passed the version of the draft revised by the Senate Judiciary

82. Id.83. Id. at 884-85.84. Id. at 885.85. See id. at 885-86.86. See id. at 889 & n. 168.87. Id. at 889.88. FED. R. EviD. 804(b)(3).89. See Tague, supra note 14, at 889.90. Id. at 889.91. Id. at 891.92. Id.93. Id.94. Id.

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Committee.95 Since there were several differences between the House and Senateversions, a conference committee convened.96 The Senate position on the declarationagainst interest provision prevailed in that committee. 97 Congress then enacted theversion approved by the conference committee.98

The upshot is that, in two important respects, the final version of the provision isa mirror image of the initial version in the advisory committee's Preliminary Draft.While that draft omitted a corroboration requirement for defense hearsay, the finalversion included a requirement with teeth. In addition, although the PreliminaryDraft included the Bruton sentence, restricting the prosecution's ability to invoke thedeclaration against penal interest provision, the final version omitted the sentence.

2. A Recurring Theme

The above paragraphs chronicle the various steps in the process culminating inthe enactment of the current version of Rule 804(b)(3). One recurring themethroughout this process is worth highlighting. In an August 12, 1971 letter to theChair of the Standing Committee, Senator McClellan voiced his opposition to theBruton sentence.99 The senator stated that he favored the Advisory Committee'sbasic approach eschewing "writ[ing] the Rules in terms of their constitutionalimplications."' 00 Likewise, when the Senate Judiciary Committee explained itsdecision to delete the sentence, it asserted that "[c]odification of a constitutionalprinciple [such as the Confrontation Clause] is unnecessary and, where the principleis under development, often unwise." 0° The same theme surfaced during theconference committee deliberations over the provision. That committee concurredwith the Senate Judiciary Committee because the conference committee also believedthat it was advisable to "avoid codifying constitutional evidentiary principles.... 102

B. The Criticism of the Final, Enacted Version of Rule 804(b) (3)

In 1981, Professor Peter Tague published a lengthy article attacking the final,enacted version of Rule 804(b)(3).' 03 He mounted several challenges to the statute.Some of the challenges were general policy arguments that the final version of the

95. Id.96. Id. at 891-92.97. Id. at 892.98. Id.99. Id. at 893.100. Id.101. Id. at 896; see also United States v. Palumbo, 639 F.2d 123, 130 (3d Cir. 1981); United

States v. Alvarez, 584 E2d 694, 700 (5th Cir. 1978).102. United States v. Oliver, 626 F.2d 254, 261 n.9 (2d Cir. 1980).103. See generally Tague, supra note 14.

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statute was unsound. However, he added a number of constitutional challenges. 10 4

One constitutional argument was that the differential treatment of prosecution anddefense hearsay-the inclusion of a corroboration requirement applicable only todefense evidence-violated the Equal Protection guarantee.' 0 5 Another criticism wasthat the failure to require corroboration of prosecution hearsay offended theConfrontation Clause. 1

06 Professor Tague pointed specifically to the reliabilityrequirement under Ohio v. Roberts.10

7 In short order, these arguments and ProfessorTague's article garnered the courts' attention. Indeed, the Court of Appeals for theEighth Circuit cited the article in 1981, the very year it was released.108

C. The Judicial Response to the Criticism: The Addition of the Gloss to the Text ofRule 804(b)(3)

Some courts not only refused to reach the merits of the constitutional claims,they also declined to decide the statutory construction issue of whether Rule804(b)(3) could be interpreted to moot the claims. The Supreme Court did so in1994,109 and a Ninth Circuit panel did likewise in 1993.110 For that matter, reachingthe statutory construction issue, one dissenting Eighth Circuit judge firmly rejectedthe argument that 804(b)(3) ought to be interpreted as including a corroborationrequirement for prosecution hearsay.'1 1

However, the vast majority of the cases have taken a very different, two-foldapproach: While the courts balk at reaching the constitutional question, they attemptto moot that question by adding a judicial gloss on the statute, requiring corroborationfor both prosecution and defense hearsay.112 In fact, in the cases reaching thestatutory interpretation issue, the "universal[]" holding is that the legislation should beconstrued as requiring prosecution hearsay to be corroborated in order to qualify foradmission under Rule 804(b)(3).113 To date, the Courts of Appeals for the Second,"14

104. Id. at 978-1011.105. Id. at989-98.106. Id. at 993-1000.107. Id. at 994-95.108. United States v. Riley, 657 F.2d 1377, 1381 n.5, 1382-83, 1385 n.12 (8th Cir. 1981).109. Williamson v. United States, 512 U.S. 594, 605 (1994).110. United States v. Williams, 989 F.2d 1061, 1068 (9th Cir. 1993).111. Riley, 657 F.2d at 1390 (Ross, J., dissenting).112. 4 MICHAEL H. GRAHAM, HANDBOOK OF FEDERAL EVIDENCE § 804:3, at 579 (6th ed.

2006); CHRISTOPHER B. MUELLER ET AL. supra note 23, § 8:130, at 196; 4 STEPHEN S. SALTZBURGMICHAEL M. MARTIN & DANIEL J. CAPRA, FEDERAL RULES OF EVIDENCE MANUAL § 804.03, at 804-93-94 (9th ed. 2006); 5 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERALEVIDENCE § 804.06[5][b][iii], at 804-68 (Joseph M. McLaughlin ed., 2008).

113. Maugeri v. State, 460 So.2d 975, 977 n.3 (Fla. Dist. Ct. App.); GRAHAM, supra note 112,at 579 n.37.

114. United States v. Casamento, 887 F.2d 1141, 1170 (2d Cir. 1989); United States v.

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Third 115 Fifth,' 16 Seventh,' 17 Eighth,' 18 and Ninth" 9 Circuits all have embraced thisview. The courts' reasoning is sometimes inexplicit. However, in the final analysis, itis clear these courts have at least implicitly invoked the interpretive maxim ofconstitutional avoidance; 120 they have interpreted Rule 804(b)(3) in this manner inorder to eliminate any doubt about the legislation's validity under such constitutionalguarantees as the Confrontation Clause.' 21

D. Subsequent Efforts to Expressly Amend Rule 804(b) (3) to Include a CorroborationRequirement for Prosecution Hearsay

Although the uniform ruling has added a corroboration requirement forprosecution hearsay as a judicial gloss onto the text of 804(b)(3), there is evidentlysome uneasiness with that method of resolving the issue. In 2002, the newlyconstituted Advisory Committee for the Federal Rules of Evidence took up aproposal to amend 804(b)(3) to explicitly extend the corroboration requirement toprosecution testimony.122 The Administrative Office of the United States Courtsformally submitted that proposal to the Supreme Court in late 2003.123 However, in2004, the Court handed down its landmark Crawford decision on the ConfrontationClause.124 That development put the proposal on hold-at least temporarily.125 In

Stratton, 779 F2d 820, 828 n.7 (2d Cir. 1985) (citing United States v. Garris, 616 E2d 626, 631 (2dCir. 1980); United States v. Oliver, 626 F.2d 254, 261 n.9 (2d Cir. 1980); Garris, 616 F2d at 631-33;see also United States v. Camacho, 163 F. Supp. 2d 287, 299-301 (S.D.N.Y 2001).

115. United States v. Palumbo, 639 E2d 123, 130-31 (3d Cir. 1981).116. United States v. Alvarez, 584 F.2d 694, 700-01 (5th Cir. 1978).117. United States v. Harty, 930 F.2d 1257, 1262-63 (7th Cir. 1991); United States v. Garcia,

897 F2d 1413, 1420-21 (7th Cir. 1990).118. United States v. Riley, 657 F.2d 1377, 1382-83, 1383 n.7 (8th Cir. 1981).119. United States v. Candoli, 870 F.2d 496, 508-09 (9th Cir. 1989).120. See infra Part II.A.121. Harty, 930 F.2d at 1263 ("[i]n order to pass constitutional muster under the Sixth

Amendment Confrontation Clause"); see also Riley, 657 F.2d at 1383 n.7 ("The test developed inAlvarez [584 F.2d 694 (5th Cir. 1978)] judicially reads the corroboration expressly required... forexculpatory statements into the rule as applied to inculpatory statements, in order to provide the'indicia of reliability' and 'guarantees of trustworthiness' required by the confrontation clause")(emphasis omitted); Alvarez, 584 F.2d at 701 ("To bring Rule 804(b)(3) within [the ConfrontationClause's] mandate for reliability .... "); MUELLER ET AL., supra note 23, § 8:130, at 196 (to "avoidconstitutional risks").

122. Comment Sought on Proposed Changes to Evidence, Criminal, and Bankruptcy Rules,71 U.S. L. WK., Oct. 22, 2002,2267.

123. Supreme Court Approves Amendments to Criminal Rules, Rules Governing Habeas, 75CRmM. L. REP., Apr. 28,2004, 76.

124. Crawford v. Washington, 541 U.S. 36 (2004).

125. IMWNKELRIEDETAL., supra note 48, § 1313, at 562.

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May 2008, the Advisory Committee revisited the issue and proposed extending thecorroboration requirement to prosecution hearsay.126

II. A CRITICAL EVALUATION OF THE PROPRIETY OF RELYING ON THECONSTITUTIONAL AVOIDANCE MAXIM AS A JUSTIFICATION FOR READING A

CORROBORATION REQUIREMENT FOR PROSECUTION HEARSAY INTO RULE 804(B)(3)

As Part I explained, in adding the judicial gloss of a corroboration requirementfor inculpatory declarations, the courts have relied on the interpretive maxim ofconstitutional avoidance. As Part I.D pointed out, in May 2008 the AdvisoryCommittee formally proposed that the rule be amended to expressly extend thecorroboration requirement to such hearsay. Initially, Part II describes the courts' pastuse of that interpretive maxim. In general terms, Part II then considers the impact ofthe textualist approach to statutory construction on the maxim. Part 1I argues that inthe textualist era, the courts ought to be more insistent that the alternativeinterpretation, supposedly mooting the constitutional doubts, is footed in the text ofthe statute being construed. Finally, Part II addresses the specific question of whether,in the modem textualist era, it is defensible for the courts to add the judicial gloss toRule 804(b)(3).

A. The Interpretive Maxim of Constitutional Avoidance

The courts repeatedly state that they will not reach the merits of a constitutionalquestion when there is an independent, non-constitutional ground for disposing of thecase.127 As a corollary, they have developed the interpretive maxim of constitutionalavoidance. 128 The lower courts often invoke this maxim. 129 The Supreme Court

126. The Advisory Committee's May 12, 2008 report to the Standing Committee on Rules ofPractice and Procedure can be found at the Judicial Conference's website, http://www.uscourts.gov.

127. LAURENCE H. TRE, AMERICAN CONSTTUTIONAL LAW § 3-22, at 155-56, § 3-24 (2d ed.1988). The courts explain that in part, they do so out of respect for the separation of powersdoctrine. Lamprecht v. F.C.C., 958 F.2d 382, 389 (D.C. Cir. 1992). By avoiding the constitutionalissue, they eliminate the possibility of a confrontation between the judicial and legislative branches.See Empresa Cubana Exportadora v. U.S. Dept. of Treas., 516 F. Supp. 2d 43, 59 (D.D.C. 2007) (."Itis a fundamental rule of judicial restraint' that courts should 'not reach constitutional questions inadvance of the necessity of deciding them."' (citations omitted).

128. SINGER ETAL., supra note], §45:1l,at83-84.129. E.g., Artichoke Joe's Cal. Grand Casino v. Norton, 353 E3d 712, 730-31 (9th Cir. 2003);

Adams v. City of Battle Creek, 250 F.3d 980, 986 (6th Cir. 2001); United States v. Taveras, 133 F.Supp. 2d 298, 307 (S.D.N.Y. 2001); United States v. Brown, 74 F. Supp. 2d 44, 50 (D. Me. 1999);United States v. Bradley, 880 F. Supp. 271, 283 (M.D. Pa. 1994); United States v. Horak, 633 ESupp. 190, 197 (N.D. I11. 1986).

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itself has endorsed the maxim,1 30 and in recent years the Court has cited the maxim ina growing number of cases.131

By way of example, the Court relied on the maxim in its 1989 Green decision,' 32

construing Federal Rules of Evidence 403 and 609. Rule 403 is the statute generallypermitting a judge to exclude an otherwise admissible item of evidence when theattendant probative dangers, such as unfair prejudice, outweigh the probative worthof the item.133 In essence, the judge balances the probative value against theprobative dangers. Rule 609 governs conviction impeachment and includes its ownbalancing provision. 134 Green presented the question of whether, under the statutes, ajudge could employ balancing-reasoning in a civil case to exclude the otherwiseadmissible conviction of a plaintiff.135 At the time, the balancing test codified in Rule609 referred to prejudice only "to the defendant.', 136 The lower court had held thatunder Rule 609, the trial judge cannot exclude a plaintiff's conviction based on abalancing rationale. 137 The lower court reasoned that since the statute mentionedonly "the defendant," the plaintiff could not base an objection on balance-reasoning;if the plaintiff's conviction otherwise qualified as evidence, the conviction wasautomatically admissible.1

38

On appeal, the Supreme Court reversed. Writing for the Court, Justice Stevensasserted that such differential treatment of civil plaintiffs and defendants would be"an odd result.' ' 139 While criminal defendants enjoy rights denied the prosecution,140

"civil litigants in federal court share equally the protections of the Fifth Amendment'sDue Process Clause."'14 1 Further, "[d]enomination as a civil defendant or plaintiff...is often happenstance based on which party filed first or on the nature of the suit.' 142

In Justice Stevens' mind, it was "unfathomable" that Congress would deny a civilplaintiff the balancing protection granted civil defendants. 143 Between the lines, the

130. Rust v. Sullivan, 500 U.S. 173, 190-91 (1991); Edward J. DeBartola Corp. v. Fla. GulfCoast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); United States v. Clark, 445 U.S.23,27 (1980).

131. See Chemerinsky, supra note 35, at 68.132. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510-11 (1989); see also id. at 527-28

(Scalia, J., concurring).133. FED. R. EvtD. 403.134. FED. R. EviD. 609.135. 490 U.S. at 506-10.136. Id. at 509 (quoting the former version of Federal Rule 609).137. Id. at506.138. Id. at 506-08.139. Id. at 509.140. See supra note 5.

141. 490 U.S. at 510.142. Id.143. Id. at 510-11.

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Court invoked the constitutional avoidance maxim.144 The proposed distinctionbetween civil plaintiffs and defendants was so irrational that it was probablyunconstitutional under the Equal Protection guarantee. 145 The Court opted for anarrowing construction, limiting Rule 609's balancing provision only to criminaldefendants in order to moot the constitutional issue.146 Under the Court's narrowinginterpretation, however, Rule 609 treated civil plaintiffs and defendants in the samefashion.

14 7

Although the existence of the constitutional avoidance maxim is well settled,there are two conditions which must occur to trigger the maxim,148 and the courtsdiffer over the contours of those conditions. One condition is that the literalinterpretation of the statute must give rise to a doubt about the constitutionality of thelegislation. 149 The courts vary in the their phrasing of this requirement. Some courtsseem to say the maxim comes into play whenever there is "any" doubt about theconstitutionality of a statute when literally construed. 5 ° Other courts-probably themajority-apply the maxim more cautiously.151 They do not demand that the litigant,urging the alternative interpretation, demonstrate that a plain meaning interpretationwould definitely render the statute unconstitutional; they quite sensibly assume thelegislature would probably be loathe to venture close to the precipice ofunconstitutionality. 152 However, they require the litigant to convince the court that acontrary interpretation would raise "grave,'153 ,serious,,,

154 or, in the Supreme

144. Randolph N. Jonakait, The Supreme Court, Plain Meaning, and the Changed Rules ofEvidence, 68 TEX. L. REV. 745, 758-59 (1990).

145. Id. at758.146. Id. at 759.147. Since the consensus was that both parties should be able to object on balancing grounds,

in 1990 Rule 609 was amended to permit either side in a civil case to object on that ground. FED. R.EvID. 609.

148. See generally Chemerinsky, supra note 35, at 68 ("[W]here a statute is susceptible oftwo constructions, by one of which grave and doubtful constitutional questions arise and by the otherof which such questions are avoided, our duty is to adopt the latter.").

149. Id.

150. United States v. Arias, 409 F. Supp. 2d 281, 299 (S.D.N.Y 2005); City of HuntingtonPark v. Superior Court, 41 Cal. Rptr. 2d 68, 71 (1995).

151. Kim Ho Mav. Ashcrofit, 257 F.3d 1095, 1106 n.17 (9th Cir. 2001) ("a party cannot forceus to ignore the usual canons of statutory construction by raising a frivolous, insubstantial, or patentlyincorrect constitutional argument"); United States v. Steele, 933 E2d 1313, 1321 (6th Cir. 1991).

152. WILLIAM N. ESKRtIDGE, JR. & PHILIP P FPiCKEY, CASES AND MATERIALS ON LEGISLATION:STATUTES AND THE CREAnION OF PUBLIC POLICY 676 (1988).

153. United States v. Vargas-Amaya, 389 F.3d 901, 906 (9th Cir. 2004); Ferguson v.Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); United States v. Rea, 300 F.3d 952, 963 (8th Cir. 2002);In re Late Fee and Over-Limit Fee Litig., 528 E Supp. 2d 953, 960 (N.D. Cal. 2007); State v.Westlake, 929 E Supp. 1516, 1523 (M.D. Ga. 1996); Gouveia v. Vokes, 800 F. Supp. 241, 259 (E.D.Pa. 1992).

154. Qualcomm, Inc. v. F.C.C., 181 F.3d 1370, 1379 (D.C. Cir. 1999); United States v. Stone,

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Court's words, "substantial ' 155 questions about the constitutional validity of thelegislation. As previously explained, the Supreme Court's shift from Roberts' 156

reliability standard to Crawford's'57 "testimonial" test greatly weakens the argumentthat a literal interpretation of Rule 804(b)(3)-omitting a corroboration requirementfor prosecution hearsay-violates the Confrontation Clause. 158 That developmentcertainly should prompt a reconsideration of the judicial gloss on 804(b)(3).

However, quite apart from the impact of the recent Crawford decision, there is apowerful case that from the very outset, the judicial gloss was unjustifiable. The cruxof that case is the second condition for invoking the constitutional avoidance maxim,that is, the requirement that the competing interpretation be a plausible one. 159

Positing Roberts' reliability standard, it was at least arguable that prior to Crawford, afailure to require corroboration of prosecution hearsay offered under 804(b)(3) wouldhave raised a sufficiently strong constitutional argument that the first condition wassatisfied. However, it is submitted that since the ascendance of the textualist schoolof statutory interpretation, it has been clear that the advocates of the judicial gloss on804(b)(3) cannot satisfy the second condition.

B. The General Impact of Textualism on the Second Condition for Invoking theConstitutional Avoidance Maxim

Some courts profess, under the guise of applying the maxim, that they cannotadopt a disingenuous' or strained16' construction. The text chosen by the legislature

139 F.3d 822, 836 (11th Cir. 1998); United States v. A.D., 28 E3d 1353, 1359 (3d Cir. 1994); VanDer Steen v. Sygen Intern., PLC, 464 F. Supp. 2d 931, 935 (N.D. Cal. 2006); Fleetboston Fin. Corp.v. Fleetbostonfinancial.com, 138 F Supp. 2d 121, 129 (D.Mass. 2001); United States v. Timber, 7 ESupp. 2d 1356, 1359 (N.D. Ga. 1998); Prieto v. Standard Fed. Savings Bank, 903 F Supp. 670, 673(S.D.N.Y 1995); Printz v. United States, 854 F Supp. 1503, 1510 (D. Mont. 1994); People v.Superior Court, 917 P.2d 628, 633 (Cal. 1996).

155. United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994); United States v.Dwinells, 508 E3d 63, 70 (st Cir. 2007) (citing X-Citement 4deo, 513 U.S. 173, 190-91 (1991));Bell Atlantic Tel. Co. v. F.C.C., 24 E3d 1441, 1445 (D.C. Cir. 1994) (citing Rust v. Sullivan, 500 U.S.173, 190-91 (1991)).

156. Ohiov. Roberts, 448 U.S. 56 (1980).157. Crawford v. Washington, 541 U.S. 36 (2004).158. See supra notes 25-32 and accompanying text.159. Chemerinsky, supra note 35, at 68, 70; see also Dwinells, 508 E3d at 70; Rios-

Valenzuela v. Dep't of Homeland Sec., 506 E3d 393, 400 (5th Cir. 2007) ("the doctrine ofconstitutional avoidance is not without limits. The doctrine does not permit courts to impose upon astatute an interpretation that does violence to its plain language: 'It is a tool for choosing betweencompeting plausible interpretations of a statutory text, resting on the reasonable presumption thatCongress did not intend the alternative which raises serious constitutional doubts. The canon is thusa means of giving effect to congressional intent, not of subverting it"') (emphasis included) (quotingClark v. Martinez, 543 U.S. 371, 381-82 (2005)).

160. Initiative & Referendum Inst. v. U.S. Postal Serv., 417 E3d 1299, 1317 (D.C. Cir. 2005);

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imposes bounds on the permissible limits of interpretation.1 62 Since the courts mustrespect the separation of powers principle, they may neither ignore163 nor twist164 the

statute's words. They lack the legislative power to rewrite the statute.1 6 5 Even thepresence of an ambigity in the statutory language does not authorize the courts toamend the statute;' 6 only the legislature possesses that prerogative.1 67 Rather, thecourts must seek an interpretation that the statutory text is fairly, 168 reasonably1 69

susceptible to.' 70

However, other courts have taken a radically different approach to the secondcondition. These courts are willing to resort to especially "liberal" interpretations tomoot constitutional doubts. 171 For example, there is a good deal of authority thatwhen a "strained" interpretation is the only interpretation capable of saving a statutefrom unconstitutionality, the court not only may but must embrace thatinterpretation. 172 As the quotation at the beginning of this article indicates, somecourts have gone as far as frankly admitting that they are "torturing" the statutorylanguage in order to avoid reaching a constitutional issue. 173

As shocking as that attitude might appear, it is understandable that the attitudeonce enjoyed some popularity. The attitude emerged while the traditional, legalprocess approach to statutory construction was still dominant. Professors Hart and

Gilmore v. California, 220 E3d 987, 998 (9th Cir. 2000); Branson Sch. Dist. v. Romer, 161 F.3d 619,636 (10th Cir. 1998); KISS Catalog v. Passport Int'l Prod., Inc., 350 E Supp. 2d 823, 831 (C.D. Cal.2004); Maldonado v. Fasano, 67 F. Supp. 2d 1170, 1174 (S.D. Cal. 1999).

161. Kim v. Ziglar, 276 F.3d 523, 538 (9th Cir. 2002); see also Crew v. U.S. Dep't ofHomeland Sec., 527 E Supp. 2d 76, 99 (D.D.C. 2007) ("The purpose of the doctrine, after all, 'is toavoid deciding the constitutional question,'... 'not to deliberately create constitutional questions')(citations omitted).

162. In re Howard N., 106 P3d 305, 313 (Cal. 2005).163. Fed. Election Comm'n v. Legi-Tech, Inc., 967 E Supp. 523, 531 (D.D.C. 1997).

164. Carhartv.Stenberg, 192 E3d 1142,1150(8th Cir. 1999).

165. United States v. Marshall, 908 F.2d 1312, 1318 (7th Ci 1990); D'Angio v. Borough of

Nescopeck, 56 E Supp. 2d 502, 507 (M.D. Pa. 1999); Colgan v. Leatherman Tool Group, Inc., 38Cal. Rplr. 3d 36,50 (Cal. Ct. App. 2006).

166. Edward J. Imwinkelried, A More Modest Proposal than A Common Law for the Age ofStatutes: Greater Reliance in Statutory Interpretation on the Concept of Interpretative Intention, 68ALB. L. REv. 949, 963-64 (2005).

167. Id.

168. Crowell v. Benson, 285 U.S. 22, 62 (1932); United States v. Harvey, 814 F.2d 905, 917(4th Cir. 1987); Tappe v. Alliance Capital Mgmt. L.P., 177 E Supp. 2d 176, 183 (S.D.N.Y 2001).

169. In re United Mo. Bank of Kansas City, N.A., 901 E2d 1449, 1456 (8th Cir. 1990).

170. Psinet, Inc. v. Chapman, 362 E3d 227,236 (4th Cir. 2004).

171. SINGER ET AL., supra note 1, § 45:11, at 84 n.17 (citing Lebanon v. Wergowske, 590N.E.2d 902 (Ohio 1991)).

172. Id at§45:11,at89-90,90n.33.

173. Id. at § 45:11, at 82 n.13 (quoting In re Hathaway, 630 N.W2d 850 (Mich. 2001).

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Sacks were the champions of that school of statutory interpretation.1 74 Theypresumed that every piece of legislation is both rational and purposive 175 and positedthat legislators are reasonable persons pursuing social purposes in good faith. 176 Thatsupposition led them to depreciate the importance of the statutory text of legislationand assign greater relative importance to extrinsic legislative history material:

if legislative drafters benignly endeavor to achieve rational purposes, they willpresumably attempt to produce extrinsic legislative history materials sheddingvaluable light on the meaning of legislation; there is therefore little risk that thecourts will be misled by resorting to the materials. 77

They echoed the arguments of Realists such as Max Radin that statutory language isalmost always indeterminate, necessitating judicial policy choice. 178 However, law-and-economics scholars sharply criticized the legal process school. They accused theproponents of that school of political naivet6 and argued that political scienceresearch had demonstrated that it is more realistic to conceive of legislation as apolitical compromise shaped by expediency. 79 In passing a statute, the legislature isoften striking a deal with special interest groups.'80

This line of law-and-economics scholarship contributed importantly to thedevelopment of the now ascendant textualist school of statutory construction. Whilethe legal process school devalued the statutory text, textualists depreciate thetrustworthiness and importance of extrinsic legislative history material. Textualistscaution that the courts must read such material skeptically.'8 1 Such material may notaccurately reflect a collective,' 8 2 rational purpose shared by the majority of thelegislators; quite to the contrary, it may represent attempted manipulation by a specialinterest group or a legislator allied with the group. 183 The most frequently used type

174. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCEss: BASIC PROBLEMS IN THE

MAKINGANDAPPLICATION OF LAW 1144-47 (tent. ed., 1958).

175. ESKRIDGEETAL.,supra note 152, at 571, 575-76.176. Id. at 575-76.177. Irmwinkelried, supra note 33, at 229.178. See generally Max Radin, Statutory Interpretation, 43 HARV. L. REv. 863 (1930).179. SeeESKRIDGEETAL.,SUpranote 152, at710.180. Id. at 703-05.181. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 670 (1989); see

Violette v. P.A. Days, Inc., 427 F.3d 1015, 1017 (6th Cir. 2005) ("Going behind the plain language ofa statute in search of a possibly contrary congressional intent is a step to be taken cautiously evenunder the best of circumstances."); In re Grand Jury Investigation, 748 F. Supp. 1188, 1199 n. 16(E.D. Mich. 1990) ("reliance on legislative history as a means of divining Congressional intent is adubious enterprise, one to be taken cautiously....").

182. MICHAEL SINCLAIRAGUIDE TO STATUTORY INTERPRETATION 92 (2000).183. SeeEsKRIDGEETAL.,supranote 152, at710,715-17.

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of extrinsic legislative history material is a committee report. 184 Yet, neither thelegislature as a whole nor even the committee members vote on the report. 18 Interestgroups frequently lobby committee staffers to insert language in the report in the hopeof misleading a court into giving the group, by way of interpretation, what thelegislature refused to grant in the statutory text. 186

Given this view of the legislative process, textualists stress the overarchingimportance of the statutory text. "The [legislative] body as a whole.., has onlyoutcomes" 87-the statute which the legislature formally approved and which alonehas the force of law.188 After all, the text is "all that [the legislature] enacts into'law."" '189 Most moderate textualists will consult extrinsic legislative history, °90 butthey recognize a strong, rebuttable presumption that the statute ought to be interpretedaccording to the plain meaning of the text.19' That interpretation can yield to acontrary reading suggested by extrinsic material but only in extraordinary cases whenthe contrary intention is very clearly expressed in the extrinsic material.192 The text"enjoys preeminence."'1 93

184. See id. at 709; Jorge L. Carro & Andrew R. Brann, The U.S. Supreme Court and the useof Legislative Histories: A StatisticalAnalysis, 22 JURIMETRics J. 294, 299, 304 (1982).

185. EsKRIDGEETAL., supra note 152, at 717.186. Hirschey v. Fed. Energy Regulatory Comm'n, 777 F.2d 1, 7-8 (D.C. Cir. 1985) (Scalia,

J., concurring).187. Frank H. Easterbrook, Statutes'Domain, 50 U. CHI. L. REv. 533, 547 (1983).188. Davis v. Harris, 71 Cal. Rptr. 2d 591, 593 (1998) (only the statutory text "has

successfully braved the legislative gauntlet.").189. Eskridge, supra note 181, at648.190. Edward J. Imwinkelried, A Brief Defense of the Supreme Courts Approach to the

Interpretation of the Federal Rules ofEvidence, 27 IND. L. REv. 267, 270 (1993).191. Id.at270-71.192. Id. at 271; see also Salinas v. United States, 522 U.S. 52, 57 (1997) ("only the most

extraordinary showing of contrary intentions in[] legislative history"); Kaluom v. Stolt Offshore, Inc.,504 F.3d 511,518 (5th Cir. 2007),petititionfor cert.filed (Jan. 8, 2008); Amalgamated Transit UnionLoc. 1309 v. Laidlaw Transit Serv., Inc., 435 F.3d 1140, 1146 (9th Cir. 2006) (discussing how aclearly expressed contrary legislative intention is necessary to overcome the strong presumption);Quarles v. United States ex rel. Bureau of Indian Affairs, 372 E3d 1169, 1172 (10th Cir. 2004)("when the statute's language is clear, only rarely is that language not controlling."); Consumer Elec.Ass'n v. F.C.C., 347 F.3d 291, 298 (D.C. Cir. 2003); United States v. Photogrammetric Data Serv.,Inc., 259 E3d 229 (4th Cir. 2001) ("only in those rare instances in which there is 'a clearly expressedlegislative intent to the contrary'); National Pub. Radio, Inc. v. F.C.C., 254 F.3d 226, 230 (D.C. Cir.2001) ("only in rare cases"); United States v. Trapilo, 130 E3d 547, 551 (2d Cir. 1997) ("The casemust be a strong one indeed .. "); United States v. Gollapudi, 130 F.3d 66, 70 (3d Cir. 1997) ("onlythe most extraordinary showing of contrary intention...."); United States v. Marcus, 487 F. Supp. 2d289, 300 (E.D.N.Y. 2007) ('only the most extraordinary showing of contrary intentions' in thelegislative history .... "); United States v. Wallace, 476 F. Supp. 2d 1129, 1132 (D. Ariz. 2007) ("a'strong presumption'...."); Am. Nat'l Theatre & Acad. v. Am. Nat'l Theatre, Inc., 472 F. Supp. 2d487, 491 (S.D.N.Y 2006) ; Teva Pharm. Indus., Ltd. v. Food & Drug Admin., 355 F. Supp. 2d 111,118 n.8 (D.D.C. 2004) ("in 'rare cases...' the court should look to other sources .... "); In re

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This renewed, textualists' emphasis on the importance of statutory language hasan obvious impact on the application of the constitutional avoidance maxim. Evenwhen the plain-meaning interpretation of the statutory text creates a serious doubtabout the constitutionality of the legislation, the court may adopt an alternativeinterpretation to moot that doubt only if the latter interpretation is "plausible."', 94 Tobe plausible under textualism, an interpretation must either be squarely based on thestatutory language selected by the legislature or, at the very least, clearly manifestedin the extrinsic legislative history material. It is no longer acceptable for a court tocavalierly strain or torture the text even for the commendable purpose of avoiding aconstitutional issue.

C. The Specific Impact of Textualism on the Judicial Gloss of a CorroborationRequirement for Prosecution Hearsay Offered Under Rule 804(b)(3)

Can the judicial gloss to Rule 804(b)(3) withstand scrutiny in the textualist era?It is submitted that the answer is no.

1. The Statutory Text

The statutory language of 804(b)(3) itself cannot support the interpretation thathas been added by way ofjudicial gloss. The statute reads:

Worldcom., Inc. Sec. Litig., 308 F. Supp. 2d 236, 244 (S.D.N.Y 2004); New York v. NiagaraMohawk Power Corp., 263 F Supp. 2d 650, 659 n.15 (W.D.N.Y 2003) ("only the mostextraordinary showing of contrary intentions..."); Taucher v. Rainer, 150 F Supp. 2d 24,26 (D.D.C.2001) ("the plain meaning .... should be conclusive, except in rare cases...."); In re Party City Sec.Litig., 147 F. Supp. 2d 282, 304 (D.N.J. 2001); Bell Ati-New Jersey, Inc. v. Tate, 962 F Supp. 608,613 (D.N.J. 1997); Bradford Hosp. v. Shalala, 954 E Supp. 1031, 1037 (W.D. Pa. 1996) ("onlywhether there is a 'clearly expressed contrary legislative intention"'); United States v. Gluzman, 953F. Supp. 84,91 n.4 (S.D.N.Y. 1996).

193. Sterling Suffolk Racehorse, Ltd. v. Burrellville Racing Ass'n, 989 F.2d 1266, 1270 (1stCir. 1993); see also Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279, 1288(D.C. Cir. 2007) (recognizing that the statutory text is the best evidence of legislative purpose);Reece v. Wal-Mart Stores, Inc., 98 F.3d 839, 841 (5th Cir. 1996) ("the [statutory language] is the solerepository of congressional intent where the statute is clear and does not demand an absurd result");Guillen v. Schwarzenegger, 55 Cal. Rptr. 3d 87, 99 (Cal. Ct. App. 2007) ("the actual language of astatute bears far more significance than statements by legislative committee members"); WasatchProp. Mgmt. v. Degrate, 112 P.3d 647, 650 (Cal. 2005) (only the statute itself "has 'successfullybraved the legislative gauntlet'); People v. Lopez, 79 P.3d 548, 550 (Cal. 2003) ("the [statutory]words .... are the most reliable indicator of legislative intent"); Stahl v. Wells Fargo Bank, 73 Cal.Rptr. 2d 667, 669 (Cal. Ct. App. 1998); Goodstone v. Southwest Airlines Co., 73 Cal. Rptr. 2d 655,666 (Cal. Ct. App. 1998).

194. Rios-Valenzuela v. Dep't of Homeland Sec., 506 E3d 393, 400 (5th Cir. 2007) (quotingClark v. Martinez, 543 U.S. 371, 381-82 (2005)).

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The following are not excluded by the hearsay rule if the declarant is unavailableas a witness: [a] statement which was at the time of its making so far... tendedto subject the declarant to... criminal liability ... that a reasonable person in thedeclarant's position would not have made the statement unless believing it to betrue. A statement tending to expose the declarant to criminal liability and offeredto exculpate the accused is not admissible unless corroborating circumstancesclearly indicate the trustworthiness of the statement.' 95

The first sentence does not contain any reference to a corroboration requirement,much less an ambiguous reference. In contrast, the second sentence includes such areference, but by its terms, that reference is confined to "[a] statement... offered toexculpate the accused. ..... 196 Expressio unius est exclusio alterius197-- congress'express reference to exculpatory statements in 804(b)(3) manifests its intent that thecorroboration requirement does not extend to inculpatory statements.

Federal Rule of Evidence 402 strengthens the case against the judicial gloss. Thejudicial gloss adds a new exclusionary rule to the Federal Rules, barring otherwiseadmissible inculpatory statements that satisfy Rule 804(b)(3)'s express requirements.Under Rule 402, the courts must admit logically relevant evidence unless theexclusion can be based on "the Constitution of the United States,... Act ofCongress,... these rules, or... other rules prescribed by the Supreme Court pursuantto statutory authority ' 98 such as the Federal Rules of Civil and Criminal Procedure.There is no mention of case law in Rule 402 and the legislative history proves thatthis omission was purposeful: 199

[C]onsider when Congress intervened. Congress considered the draft rulesagainst the backdrop of the Watergate controversy. That controversy madeCongress acutely "jealous of its prerogative vis-a-vis both the Executive and theJudiciary." [The same] Congress [that blocked the promulgation of the Federal

195. FED. R. EVD., 804(b)(3).196. Id.197. United States v. Olnos-Esparza, 484 E3d 1111, 1114 (9th Cir. 2007); Frank G v. Board

of Educ., 459 F.3d 356, 370 (2d Cir. 2006), cert. denied, 128 S.Ct. 436 (2007); Reyes-Gaona v. N.C.Growers Ass'n, 250 E3d 861, 865 (4th Cir. 2001); United States v. Juan-Manuel, 222 F.3d 480, 488(8th Cir. 2000); United States v. Rivard, 127 E Supp. 2d 512, 515 n. 7 (D.Vt. 2000); Mukaddam v.Permanent Mission of Saudi Arabia, I11 F. Supp. 2d 457, 471 (S.D.N.Y 2000); see also Fireman'sFund Ins. Co. v. England, 313 F.3d 1344, 1350 (Fed. Cir. 2002); Chestnut v. Montgomery, 307 E3d698, 701 (8th Cir. 2002); United States v. Macia, 157 F Supp. 2d. 1369, 1371 (S.D. Fla. 2001); cfBarnhart v. Sigmon Coal Co., 534 U.S. 438, 449 (2002); Russello v. United States, 464 U.S. 16, 23(1983).

198. FED. R. EviD. 402.199. See Edward J. Imwinkelried, Whether the Federal Rules of Evidence Should Be

Conceived as a Perpetual Index Code: Blindness Is Worse Than Myopia, 40 WM. & MARY L. REv.1595, 1608-09 (1999); Edward J. Imwinkelried, Federal Rule of Evidence 402: The SecondRevolution, 6 REV. LmG 129, 133-34 (1987).

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Rules by the Supreme Court] was battling in federal court over evidentiarydoctrines, namely, President Nixon's privilege claims.200

On two occasions, the Supreme Court has approvingly quoted the assertion by thelate Professor Edward Cleary, the Reporter for the Advisory Committee, that "[i]nprinciple, under the Federal Rules no common law of evidence remains. '20 1 Rule402 embodies a strong bias in favor of the admission of logically relevantevidence.20 2 Since Rules 402 and 804 are part of the same statutory scheme, Rule402 serves as part of the context2° 3 for construing Rule 804. Even if there was anyambiguity in the text of Rule 804, Rule 402 cuts powerfully in favor of resolving thatambiguity against any judicial gloss imposing a further restriction on the introductionof logically relevant evidence.

It might be countered that the Supreme Court's 1989 Green decision20 4 cuts inthe opposite direction. As Part II.A observed, in Green the Court construed Rule609's balancing provision. It is true that, similar to the courts adding the judicialgloss to Rule 804, the Green Court invoked the constitutional avoidance maxim.However, Green is readily distinguishable. In Green, the statutory text explicitlyincluded the word, "defendant." The issue was the interpretation of that word: Did itapply to civil defendants as well as criminal defendants? The Green Court struggledwith the ambiguity of a term which Congress has voted to include in the text of thestatute. In contrast, courts imposing the judicial gloss, have, in effect, added words tothe statutory text. The constitutional principle of separation of powers ordinarily

200. Edward J. Imwinkelried, Moving Beyond "Top Down" Grand Theories of StatutoryConstruction: A "Bottom Up " Approach to the Federal Rules of Evidence, 75 OR. L. REV. 389, 414-15 (1996) (emphasis included) (citations omitted).

201. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993); United States v. Abel,469 U.S. 45, 51 (1984). It is important to understand what this language means as well as what itdoes not denote. First, if a statute uses a term that became a common-law term of art, it is certainlypermissible for the court constuing the statute to look to the prior common law to inform theinterpretation of the statute. Walker v. USAA Cas. Ins. Co., 474 F. Supp. 2d 1168, 1172 (E.D. Cal.2007). Secondly, if a statute such as Rule 403 confers discretion on the trial judge, the judge mayconsider common-law policies in deciding how to exercise the discretion. FED. R. EviD. 403. Whatthe judge may not do, however, is to enforce categorical, unmodified exclusionary rules of evidence.See generally Imwinkelried, supra note 199.

202. See generally Imwinkelried, supra note 199.203. Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809 (1989); Houghton ex rel. Houghton

v. Reinsertion, 382 F.3d 1162, 1169 (10th Cir. 2004); S.C. Dep't of Health v. Commerce & Indus. Ins.Co., 372 F.3d 245, 255 (4th Cir. 2004); Gonzales-Gomez v. Ache, 372 F. Supp. 2d 1062, 1069 (N.D.Ill. 2005) ("It is a fundamental canon of statutory construction that the words of a statute must be readin their context and with a view to their place in the overall statutory scheme.") (quoting Davis, 489U.S. at 809) (internal quotations omitted); United States v. Salem, 287 F. Supp. 2d 250, 337(S.D.N.Y 2003) ("the 'whole act' rule of statutory construction...").

204. Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989).

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precludes the courts from inserting words into the statute.20 5 There are instances inwhich courts read language into the text, but they do so only in extreme cases20 6

where, as a matter of law, the legislative history establishes a scrivener's draftingerror.20 7 Absent such extraordinary circumstances, the insertion of a word or wordsinto the legislative text amounts to a statutory amendment, and the courts lack thepower to amend legislation. ° 8 The courts adding the judicial gloss to Rule 804(b)(3)have attempted to exercise that power.

2. The Extrinsic Legislative History Materials

A strict textualist might take the position that if the statutory text itself cannotsupport an interpretation other than a "plain meaning" reading, the court cannot adoptan alternative reading even for the benign purpose of mooting a doubt about theconstitutionality of the statute. However, as we have seen, most moderate textualistsat least consult legislative history material before making a definitive interpretivedecision.20

9 In the typical case, though, they permit such material to trump the textonly when those materials very clearly demonstrate a contrary legislative intention.2 1

0

Of course, these cases are atypical because they also implicate constitutionalconcerns, that is, the doubt about the constitutionality of a literal interpretation of thetext. In such an atypical case, a textualist might conceivably permit the adoption ofan interpretation mooting the constitutional doubt so long as the interpretation hassome support in the extrinsic materials. Absent even that, the interpretation would bea wholly judicial creation. Textualism dictates that separation of powers precludes acourt from attributing that type of interpretation to the statute.

Can the proponents of the judicial gloss justify the gloss on the basis that thelegislative history of Rule 804(b)(3) evidences an intention that, in enforcing thestatute, the trial judge must require a prosecutor offering an inculpatory statement topresent corroboration of the statement? On occasion, the courts imposing the glosshave seemed to rely on that argument.2 11 However, that argument rests on asuperficial reading of the legislative history. A close reading of the legislative historymaterial exposes the error.

205. Bates v. United States, 522 U.S. 23,29-30 (1997); Doe v. City of Los Angeles, 169 P.3d559, 567 (Cal. 2007); In re Brandy R., 58 Cal. Rptr. 3d 456, 457-58 (Cal. Ct. App. 2007); People v.Frontier Pac. Ins. Co., 74 Cal. Rptr. 2d 316, 319 (Cal. Ct. App. 1998).

206. People v. Buena Vista Mines, Inc., 56 Cal. Rptr. 2d 21,23 (1996).207. Tax Analysts v. Internal Revenue Serv., 214 E3d 179, 183 (D.C. Cir. 2000); Barnett v.

Brook Road, Inc., 429 F. Supp. 2d 741, 749 (E.D.Va. 2006).208. Imwinkelried, supra note 166, at 963-64.209. Imwinkelried, supra note 190, at 269-71.210. See supra notes 191-192 and accompanying text.211. E.g., United States v. Alvarez, 584 F.2d 694, 700-01 (5th Cir. 1978).

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As Part I.A pointed out after reviewing the chronology culminating in Congress'enactment of Rule 804(b)(3), a theme surfaced during that chronology. In his letter tothe Advisory Committee, Senator McClellan urged the committee to continue tofollow its basic approach not "writ[ing] the Rules in terms of their constitutionalimplications." ' Later in the chronology, when the Senate Judiciary Committeeelaborated on its decision to delete the so-called Bruton sentence, the committeestated that "Codification of a constitutional principle [such as the ConfrontationClause] is unnecessary and, where the principle is under development, oftenunwise.' 213 Near the end of the timeline, the conference committee expressed itsview that it was advisable to "avoid codifying [evolving] constitutional evidentiaryprinciples ... ,,214

On close examination, these passages from 804(b)(3)'s history materials do notdemonstrate a legislative intent to "freeze" the 1975 understanding of ConfrontationClause jurisprudence into the statute. Nor do they establish that the trial judge isauthorized to read into the statute whatever additional requirements he or she thinksthe Constitution then mandates. Instead, the materials manifest a legislative intentthat after applying the express statutory requirements, the judge will then undertake aseparate "wholly constitutional" analysis.215 Both the Senate and ConferenceCommittees recognized that constitutional constraints such as the ConfrontationClause were both pertinent and evolving. Hence, even if the courts should considerthe extrinsic history materials as well as the text of Rule 804(b)(3), those materialsalso undermine the validity of the judicial gloss. The materials are devoid of anyevidence that Congress tasked judges to address the constitutional principlesindirectly by a judicial gloss mooting constitutional concems. Rather, the materialsclarify Congress' intent that after applying the statutory requirements it hadprescribed, the judge would conduct a further, straightforward analysis of therequirements mandated by the Constitution. 216

II. CONCLUSION

It would be a mistake to overstate the importance of the narrow question of thecorroboration requirement for prosecution hearsay under Rule 804(b)(3). As Part I.Dpointed out, the Advisory Committee has formally proposed that the rule be amendedto expressly extend the corroboration requirement to such hearsay.

However, it would be a much greater mistake to understate the importance of thelarger issue raised by this case study. The case study poses the broader question of

212. Tague,supranote 14, at 893.213. Id. at 896 (quoting S.R. REP. No. 93-12777, at 22 (1974), reprinted in 1974

U.S.C.C.A.N. 7051, 7068.214. United States v. Oliver, 626 F.2d 254,261 n.9 (2d Cir. 1980).215. MUELLERETAL., supra note 23, § 8:130, at 196-200.216. See supra notes 212-215 and accompanying text.

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the limits of the interpretive maxim of constitutional avoidance. That maxim is inwidespread use, and, if anything, the courts appear to invoke the maxim withincreasing frequency 17

Textualism changes the concept of a "plausible" alternative interpretation. In thepast, some courts have taken great liberties with the statutory text in announcingstrained, tortured interpretations in order to eliminate doubts about theconstitutionality of the statute.2

1 Textualism demands an alternative interpretationthat is either squarely grounded in the statutory text or at least has some solid supportin the extrinsic legislation materials.

Indeed, the impact of textualism is not confined to the constitutional avoidancemaxim. The textualist approach should affect the application of many popularmaxims. One of the most frequently invoked maxims in civil cases originated inChevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.219 Chevronannounced the maxim that if an administrative agency adopts an interpretation of anambiguous statute that the agency has responsibility for administering, the courtsshould prefer that interpretation even when it is not the reading the court wouldotherwise adopt. 22 However, in the textualist era:

The agency's interpretation must be defensible linguistically. Even if a statutoryprovision is ambiguous, the provision can bear only a certain range of possiblemeanings. What potential meanings do the statutory words permit? If theagency's interpretation exceeds the bounds of that range, the court will not grantthe interpretation Chevron deference, much less ultimately adopt thatinterpretation.

2 21

In criminal cases, one of the commonly invoked maxims is lenity, counselingthat ambiguities in penal statutes ought to be resolved in the accused's favor.222

217. Chemerinskysupra note 35, at 68.218. SINGER ETAL., supra note 1, § 45:11 at 81-84, 89-90.219. 467 U.S. 837(1984).220. See generally Antonin Scalia, Judicial Deference to Administrative Interpretations of

Law, 1989 DuKE L.J. 511 (1989); Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89GEO. L.J. 833 (2001); Edward J. Imwinkelried, Defeating Deference: A Practitioners Guide toOvercoming the Chevron Doctrine, 31 AM. J. TRIALADv. 69 (2007).

221. Imwinkehied, supra note 220, at 83; see also Agro Dutch Indus. Ltd. v. United States,508 E3d 1024, 1030 (Fed. Cir. 2007) ("As the Supreme Court has made clear,. . .'an agency'sinterpretation of a statute is not entitled to deference when it goes beyond the meaning that the statutecan bear."').

222. Muscarello v. United States, 524 U.S. 125, 138-39 (1998); Reno v. Koray, 515 U.S. 50,65 (1995); Bell v. United States, 349 U.S. 81, 83-84 (1985); Busic v. United States, 446 U.S. 398,406 (1980); Simpson v. United States, 435 U.S. 6, 14 (1978); Sash v. Zenk, 428 E3d 132, 134 (2dCir. 2005); United States v. Wu, 419 F3d 142, 150 (2d Cir. 2005) (Pooler, J., concurring in part, anddissenting in part); United States v. Venturella, 391 E3d 120, 132 (2d Cir. 2004); Ass'n of CivilTechnicians v. Fed. Labor Relations Auth., 360 E3d 195, 199 (D.C. Cir. 2004); United States v.

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223However, that maxim does not justify distorting the statutory text. A court maytreat the maxim as a tie breaker224 and rely on it as a basis for adopting aninterpretation favorable to the accused only if the latter interpretation is a reasonablereading of the legislative text.225 The lenity maxim does not authorize a court tostrain the statutory language. 226 Maxims such as these are intended as aids in bona

227fide efforts to interpret statutes, not pretexts for usurping legislative authority andamending the statutes.

In the final analysis, this article is a call for judicial honesty and courage. First,the article calls for judicial honesty in the interpretation of statutory text. There arelimits to the legitimate interpretation of statutory language. 22 The only thing that has

Warren, 149 F.3d 825, 828 (8th Cir. 1998); United States v. Jackson, 64 F.3d 1213, 1219 (8th Cir.1995); United States v. Fisher, 58 F.3d 96, 99 (4th Cir. 1995); United States v. Turcks, 41 E3d 893,901 (3d Cir. 1994); United States v. Cooke, 850 F. Supp. 302, 303 (E.D. Pa. 1994); United States v.Moreno-Duque, 718 F Supp. 254, 259 (D. Vt. 1989); People v. Spurlock, 8 Cal. Rptr. 3d 371, 379(Cal. Ct. App. 2003); People v. Gohdes, 68 Cal. Rptr. 2d 719, 722-23 (Cal. Ct. App. 1997); In reRottanak K., 43 Cal. Rptr. 2d 543, 548 (Cal. Ct. App. 1995).

223. People v. McCleod, 64 Cal. Rtpr. 2d 545, 551 (Cal. Ct. App. 1997).224. United States v. Degasso, 369 E3d 1139, 1149 (10th Cir. 2004); People v. Prothero, 66

Cal. Rptr. 2d 779, 782 (Cal. Ct. App. 1997).225. United States v. Freisinger, 937 F.2d 383, 391 n.9 (8th Cir. 1991); People v. Hammer, 69

P.3d 436, 445 n. 13 (Cal. 2003); People v. Douglas, 94 Cal. Rptr. 2d 500, 504 (Cal. Ct. App. 2000).The California authorities generally state that a court may opt for a lenient interpretation under themaxim only when both interpretations are reasonable and their plausibility is in "relative equipoise."People v. Cole, 135 P.3d 669, 682 (Cal. 2006) (quoting People v. Avery, 38 P.3d 1, 6 (Cal. 2002)).People v. Palmer, 35 Cal. Rptr. 3d 373, 383 (Cal. Ct. App. 2005); Bums v. Superior Court, 103 P.3d276, 282 (Cal. 2005); People v. Annin, 15 Cal. Rptr. 3d 278, 288 n. 10 (Cal. Ct. App. 2004); People v.Oates, 88 P.3d 56, 69 (Cal. 2004); People v. Athar, 5 Cal. Rptr. 3d 9, 22 (Cal. Ct. App. 2003);Guillory v. Superior Court, 72 P.3d 815, 819 (Cal. 2003); People v. Anderson, 50 P.3d 368, 376 (Cal.2002); People v. Farell, 48 P3d 1155, 1164 (Cal. 2002); People v. Townsend, 73 Cal. Rptr. 2d 438,442 (1998); People v. Williams, 57 Cal. Rptr. 2d 448, 452 (Cat. Ct. App. 1996); People v. Martinez,16 Cal. Rptr. 2d 556, 559 (Cal. Ct. App. 1993); People v. Cantrell, 9 Cal. Rptr. 2d 188, 205 (Cal. Ct.App. 1992); People v. Crockett, 271 Cal. Rptr. 500, 504 (Cal. Ct. App. 1990); People v. Camillo, 244Cal. Rptr. 286, 291 (Cal. Ct. App. 1988).

226. People v. Avery, 38 P.3d 1, 6 (Cal. 2002); People v. Horn, 80 Cal. Rptr. 2d 310,317 (CalCt. App. 1998).

227. See ESKRIDGE ET AL., supra note 152, at 639; see also CBS Inc. v. Primetime 24 JointVenture, 245 E3d 1217, 1225 (1lth Cir. 2001); In re Griffith, 206 F.3d 1389, 1393 (11th Cir. 2000);Majeske v. Bd. of Educ., 177 F. Supp. 2d 666, 673 (E.D. Mich. 2001); SKF USA, Inc. v. UnitedStates, 94 F. Supp. 2d 1351, 1357 (Ct.. Int'l Trade 2000); People v. Superior Court, 7 Cal. Rptr. 3d862, 866-67 (Cal. Ct. App. 2003); Medical Bd. v. Superior Court, 106 Cal. Rptr. 2d 381, 389 (Cal. Ct.App. 2001).

228. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REv. 527,533 (1947) ("no one will gainsay that the function in construing a statute is to ascertain the meaningof the words used by the legislature. To go beyond is to usurp a power which our democracy haslodged in its elected legislature. The great judges have constantly admonished their brethren of theneed for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge

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the force of law is the statutory text enacted by the legislature. The judge's task is to"ascertain the meaning of [the] words used by the legislature. To go beyond is tousurp a power which our democracy has lodged in its elected legislature. ' 229 In thecase of Federal Rule of Evidence 804(b)(3), the statute does not contain any languagethat, by any stretch of the imagination, supports the existence of a corroborationrequirement for inculpatory hearsay. In some circumstances a moderate textualistcould conceivably be willing to rest an interpretation on extrinsic legislative historymaterial evidencing an intent to extend the corroboration requirement. However, aclose reading of the legislative history of 804(b)(3) discloses no such intention.

Of course, greater judicial honesty in statutory interpretation will necessitategreater judicial courage. If the court cannot stretch the constitutional avoidancemaxim to evade a constitutional question, the court will have to face that question. IfRule 804(b)(3) is not amended, the courts might well eventually rule that the statute isunconstitutional. As we have seen, the Supreme Court's recent Crawford230 andDavis231 decisions largely eliminate the argument that the statute violates theConfrontation Clause. However, the Equal Protection issue remains. In some cases,the Supreme Court has strongly suggested that an evidentiary classification canviolate the Equal Protection Guarantee. 232 Seizing on those suggestions,commentators have urged that certain evidentiary rules run afoul of Equal

233Protection. In particular, Professor Tague argued that the differential treatment ofinculpatory and exculpatory hearsay in the text of Rule 804(b)(3) is unconstitutional

234on that ground. Nevertheless, to date the lower courts have, rather summarily,rejected Equal Protection challenges to evidentiary rules. 235 Thus, there is a distinctpossibility that the courts will rule that the disparity passes constitutional muster-the

nor to contract it"); Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV.417, 419-20 (1898-99) ("We do not inquire what the legislature meant; we ask only what the statutemeans... a meaning which... the words did not bear"); see also GuIDo CALABRESI, A COMMONLAW FOR THE AGE OF STATUTES 38 (1982). However, Judge Calabresi believes that when laterhistorical developments overtake a statute and it is clear to the judiciary that the legislature lacks thepolitical consensus to amend or adapt the statute, that responsibility falls to the judiciary. His Honoracknowledges that the adoption of his view would require a reconceptualization of separation ofpowers. Id. at 79-80.

229. Felix Frankfurter, supra note 228, at 533.230. Crawford v. Washington, 541 U.S. 36 (2004).231. Davisv. Washington, 547 U.S. 813 (2006).232. See generally Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989); Washington v.

Texas, 388 U.S. 14 (1967). The concurring opinion in Washington strongly intimated that thediffering treatment of alleged conspirators' testimony--pemitting them to testify for the prosecutionbut rendering them incompetent as defense wimesses-violated Equal Protection. Id. at 23, 23-25(Harlan, J., concurring in result).

233. See supra note 14.234. Tague, supra note 14, at 989-1000.235. Edward J. Imwinkelried, supra note 14, at 272 n.18.

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merits of that question, of course, are worthy to be the subject of a separate article. Inany event, if the courts honestly construe Rule 804(3), they will have to directly andcourageously address that constitutional issue. The irony is that, in a well-intentionedeffort to avoid that constitutional question, the courts imposing the corroborationrequirement on inculpatory hearsay have acted unconstitutionally, wielding alegislative power to amend the statutory text in violation of separation of powers.

Rethinking the Limits of the ... - Gonzaga Universityblogs.gonzaga.edu/gulawreview/files/2011/01/gonlr44.11.pdf · Constitutional Avoidance: The Case Study of the Corroboration Requirement

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