SC Criminal Defense

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Confession of Co-Defendant| TestArticle2 | Related Page 3

Use of Co-Defendant’s Confession (No Conspiracy)

This issue involves hearsay (statement against penal interest – Rule 804(b)(3) (witness unavailable)) and non-hearsay (Rule 801(d)(1) – Prior Inconsistent Statement by Witness or Admission by a party Rule 801(d)(2)), as well as the confrontation clause. Conspiracy (non-hearsay Rule 801(d)(2)(E)) raises a different issue.

Where the co-defendant testifies, assuming the statement is not admissible under the co-conspirator Rule 801(d)(2)(E) rule, then there are two possibilities:

  1. Co-Defendant testifies –
  2. Admissible against co-defendant as admission Rule 801(d)(2) or against co-defendant as prior inconsistent statement Rule 801(d)(1). No problem with confrontation clause because person who made the prior statement is subject to cross. State vs. Anders & Simmons, Op. # 2639 Ct. App. 1997.

  3. Co-Defendant does not testify – Rules 801(d)(2) and 804(b)(3)

Usually not admissible – there is a presumption of unreliability. However, where the Defendant himself has also given a confession which "thoroughly substantiates" the nontestifying co-defendant’s confession, the nontestifying co-defendant’s confession may be admissible with any violation of the Confrontation Clause being considered harmless. State vs. Howard, 295 S.C. 462, 369 S.E.2d 132 (S.C. 1988).

 

 

Test Document 2

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