Codefendant’s Incriminating Statement Allowed into Evidence through Third Party

An incriminating statement made by a codefendant to a third party can come in through testimony from the third party the Court of Appeals held in a decision filed June 20, 2011. See State v. Usee.

In this case, Appellant Abdulsalam Usee was jointly tried with co-defendant Ahmed Ali in-connection with a shooting of three victims that occurred outside a Minneapolis apartment complex. Usee was convicted of three counts of attempted first-degree murder, one count of first-degree assault, and two counts of second-degree assault. One of the witnesses who testified at Usee and Ali’s trial was in custody at the jail with Ali before trial. The witness testified that Ali told him that he (Ali) and Usee were the shooters. The district court instructed the jury only to consider the witness’s testimony in the case against Ali, not in the case against Usee. On appeal Usee argues that his rights under the Confrontation Clause were violated because Ali’s statement saying Usee was the other shooter came in through the witness, but Usee was not able to confront Ali because Ali did not testify.

Under the 6th Amendment of the U.S. Constitution (also known as the Confrontation Clause) a person has a right to confront any witnesses against him. There is an exception if the witness is unavailable and the defendant has previously had a chance to cross-examine the witness. However, under Crawford, a U.S. Supreme Court decision, this right to confront witnesses is only available for testimonial statements. Testimonial statements have been defined as “statements that were made under circumstances which would lead an objective witness reasonably to believe the statement would be available for use at a later trial[.]” Crawford v. Washington, 541 U.S. 36, 51-52, 124 S. Ct. 1354, 1364 (1987).

The Court of Appeals reasoned that since the statement was a casual remark made by Ali to another inmate, and there was no reason that Ali would believe it would be used at trial. It is, therefore, a nontestimonial statement. The confrontation clause does not apply to nontestimonial statements, so Usee had no constitutional right to confront and cross-examine Ali.

The Court next considered if the statement should have been barred under the Minnesota Rules of Evidence. Hearsay is a statement made by someone other than the declarant while testifying at a trial or hearing, offered into evidence to prove the truth of the matter asserted. The statement of Ali that was introduced by the witness is hearsay. Hearsay is not admissible unless an exception applies. Under the Rules of Evidence there is a hearsay exception to statements against the declarant’s interests. To determine if a hearsay statement falls under this exception a court will consider the following: (1) is the declarant unavailable to testify at trail?; (2) at the time the statement is made, is the declarant subjecting himself to civil or criminal liability so that a reasonable person would not make the statement unless he believed it was true?, and; (3) the statement cannot violate the Confrontation Clause.

Ali was unavailable to testify at trial because he invoked his constitutional right against self-incrimination, and since the Court determined the statement was nontestimonial, there was no violation of the Confrontation Clause. AS for whether the statement made was against the declarant’s interest, the Court reasoned that since Ali incriminated himself along with Usee, it was admissible under previous caselaw. Ali was not trying to shift the blame, and subjects himself to criminal liability equal to Usee’s. Therefore, the statement, though hearsay, was admissible as evidence under a hearsay exception.

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