Penal Interest Case Analysis

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Inasmuch as the case is only a federal court review of an Illinois state court conviction, carrying as it does an exceedingly deferential standard of review, the decision has no precedential value save in federal habeas actions.

However, the majority’s analysis is so shockingly wrong that it is important that it be recognized as such, lest it creep into Wisconsin case law, which has substantively identical hearsay exceptions, to be cited as persuasive authority.

As Judge Posner amply demonstrated, Pugh’s statement cannot, by any stretch of the imagination, be considered a statement against penal interest. More likely than not, in denying the suppression motion, the trial court probably called Pugh’s testimony “self-serving,” and thus, incredible.

Consider Pugh’s circumstances: he was arrested with 103 grams of heroin down the front of his pants. He could not reasonably argue that he did not knowingly possess it, and would be hard-pressed even to argue that it was for personal consumption only; to testify at a suppression hearing that it had been in his pants the whole time was his best hope of avoiding the penitentiary.

Fortunately for those in Rice’s situation, this case is not the only persuasive authority on the subject, and the rest of the authority is unanimously on Posner’s side: U.S. v. Poland, 659 F.2d 884, 896 (9th Cir. 1981)(admitting testimony from suppression hearing because the motive for cross-examination at the hearing was strong); U.S. v. Curry, 471 F.2d 419, 421 (5th Cir.1973), cert den. 411 U.S. 967, (same); U.S. v. Geiger, 263 F.3d 1034, 1038-1039 (9th Cir.2001)(same); Trigones v. Bisson-nette, 296 F.3d 1, 5-12 (1st. Cir.2002)(same).

Even in those cases where the testimony from a suppression hearing was held inadmissible, the cases are distinguishable because each involved a motion to suppress confessions, and thus, the courts found that the State had no motive to cross-examine the witness’ statements concerning the defendant, but only with regards to the circumstances of the confession to police. U.S. v. Bartelho, 129 F.3d 663, 672 (1st Cir.1997); U.S. v. Wingate, 520 F.2d 309, 315-316 (2nd Cir. 1975), cert. den., 423 U.S. 1074.

	Links Seventh Circuit Court of Appeals Related Article No clear error in excluding statements

The most useful case in similar circumstances, however, is that of U.S. v. Zurosky, 614 F.2d 779, 791-793 (1st Cir.1979), cert. den., 446 U.S. 967. In Zurosky, a multiple-defendant case, one of the co-defendants testified at a suppression hearing, and confessed guilt while implicating the other co-defendants (apparently under bad advice from counsel that this was necessary to establish standing to challenge a search warrant, obtain suppression).

The witness would not testify at trial, and the court held the statements from the suppression hearing admissible, not because they were statements against penal interest, but because they constituted former testimony, and the other defendants had the opportunity to cross-examine him at the suppression hearing.

The same should have been done in this case. In both cases, the co-defendant either was telling the truth, or told self-serving lies as a pre-trial strategy. In both cases, the party who later objected to the testimony at trial had both opportunity and motive to cross-examine, and thus, in both cases, the evidence should have been given to the jury for them to decide whether the testimony was true or not.

– David Ziemer

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David Ziemer can be reached by email.