United States v. Yellowhorse.
No. 23-2011. 11/21/2023. D.N.M. Judge Bacharach. Admissibility of Out-of-Court Self-Incriminating Statements—Fed. R. Evid. 802 and 804(b)(3)—Hearsay Exception.
December 5, 2023
Chischilly gathered five of his relatives together and confessed to them that he and his girlfriend Yellowhorse had killed a woman. The relatives told law enforcement about the confession. Despite confessing to the murder, Chischilly pleaded not guilty, so the district court set Chischilly’s trial after Yellowhorse’s. At Yellowhorse’s upcoming trial, the government wants Chischilly to testify about his out-of-court admissions and to use them for the truth of the matters asserted—that Chischilly and Yellowhorse killed the woman and burned the body. But because his statements were self-incriminating, the government expects Chischilly to invoke the Fifth Amendment if he is called as a witness. Therefore, the government asked the district court to allow Chischilly’s relatives to testify at Yellowhorse’s trial about Chischilly’s statements that (1) he and Yellowhorse killed the woman, (2) Yellowhorse used a sledgehammer or mallet to bludgeon the woman, and (3) Chischilly and Yellowhorse burned the body after the killing. The district court concluded that the statements about Yellowhorse’s participation would not have harmed Chischilly’s penal interest. Based on this conclusion, the court paraphrased the relatives’ expected testimony and excluded everything that Chischilly had said about Yellowhorse’s involvement.
On appeal, the government argued that the district court applied the wrong test by assuming that Chischilly’s statements about Yellowhorse’s involvement were not self-inculpatory. Hearsay is generally inadmissible, but Fed. R. Evid. 802 and 804(b)(3) provide an exception for statements that are self-inculpatory. The party seeking to introduce a self-inculpatory, out-of-court statement must establish that (1) the declarant is unavailable, (2) the statement is against the declarant’s penal interest, and (3) corroborating circumstances sufficiently and clearly indicate the statement’s trustworthiness. Under United States v. Smalls, 605 F.3d 765, 767 (10th Cir. 2010), out-of-court statements can be self-inculpatory even though they implicated a third-party. Under Smalls, the court must analyze the content and context of each statement to determine whether it was self-inculpatory. Here, contrary to Smalls, the district court treated anything about Yellowhorse’s involvement as outside the hearsay exception. Therefore, the court applied the wrong test and erred by excluding statements just because they had incriminated Yellowhorse.
Yellowhorse contended that even if the district court otherwise erred, it shouldn’t have found corroboration. Here, the district court found corroborating circumstances based on the forensic report, the family connection between Chischilly and the witnesses, and the internal consistencies between the relatives’ accounts of what Chischilly had said, but the court excluded parts of Chischilly’s statements on other grounds. The court’s finding reflects a reasonable view of the evidence, so it didn’t clearly err by finding corroboration.
The government requested that the Tenth Circuit instruct the district court that all of the disputed statements fall within the hearsay exception. However, the district court must decide admissibility in the first instance.
The matter was remanded for the district court to reconsider the admissibility of Chischilly’s statements to his relatives.