United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
government filed a motion in limine regarding
defendant Marlon Iron Crow's prior statement to law
enforcement. (Docket 81 at p. 3). The government indicates it
does not intend to introduce the audio recording of
defendant's statement. Id. The motion requests a
ruling in limine prohibiting the defendant from
introducing his statement unless he testifies. Id.
The government argues the statement is inadmissible hearsay.
Id. Specifically, the government asserts the
statement is not admissible under Federal Rule of Evidence
801(d)(2) because it is not “offered against an
opposing party . . . .” Fed.R.Evid. 801(d)(2).
Defendant opposes the government's motion. (Docket 82).
Defendant claims excluding his prior statement even if he
does not testify violates his constitutional right to present
his defense. Id. at pp. 2-4.
court finds defendant's prior statement to law
enforcement is admissible based on the Federal Rules of
Evidence and the United States Constitution. Even if
defendant does not testify, he may introduce into evidence
the audio recording of his statement.
Rule 807 Federal Rule of Evidence 807 provides a
basis for admitting a hearsay statement “not
specifically covered by a hearsay exception in Rule 803 or
804 . . . .” Fed.R.Evid. 807. Defendant's statement
to law enforcement is hearsay. Fed.R.Evid. 801(c). The
statement must meet four requirements to be admissible under
Rule 807. The United States Court of Appeals for the Eighth
Rule 807 provides that a hearsay statement is not excluded by
the rule against hearsay, even if not covered by an exception
in Rule 803 or 804, if the statement (1) has
“equivalent circumstantial guarantees of
trustworthiness” to statements admitted under the
enumerated exceptions, (2) is offered as evidence of a
material fact, (3) is more probative on the point offered
than any other reasonably available evidence, and (4) will
best serve the general purposes of the rules of evidence and
the interests of justice. We have said that this exception to
the rule against hearsay “was necessary to permit
courts to admit evidence in exceptional circumstances where
the evidence was necessary, highly probative, and carried a
guarantee of trustworthiness equivalent to or superior to
that which underlies the other recognized exceptions.”
United States v. Renville, 779 F.2d 430, 439 (8th
United States v. End of Horn, 829 F.3d 681, 685-86
(8th Cir. 2016).
defendant's statement has sufficient circumstantial
guarantees of trustworthiness. “According to the theory
of the hearsay rule, the trustworthiness must be gleaned from
circumstances that ‘surround the making of the
statement and that render the declarant particularly worthy
of belief, ' not by ‘bootstrapping on the
trustworthiness of other evidence at trial.' ”
Id. at 686 (quoting Idaho v. Wright, 497
U.S. 805, 819 (1990) abrogated on other grounds by
Crawford v. Washington, 541 U.S. 36 (2004)).
“[T]rustworthiness is analyzed under a broad totality
of the circumstances test.” United States v.
Halk, 634 F.3d 482, 489 (8th Cir. 2011) (internal
quotation marks omitted).
court listened to the audio recording of defendant's
statement to law enforcement. Mr. Iron Crow voluntarily
waived his right to remain silent and his right to counsel at
the beginning of the FBI interrogation. Defendant maintained
a calm demeanor and his account of the facts remained
consistent throughout the interview with two FBI agents. The
agents repeatedly challenged Mr. Iron Crow about his account
of the incident. The interview occurred three days after the
alleged murder. See Halk, 634 F.3d at 489 (finding
statements made “over a year after [defendant's]
arrest” and “in anticipation of litigation”
were not trustworthy). Rather than invoking his right to
remain silent, defendant made statements potentially exposing
himself to criminal liability. See Fed.R.Evid.
804(b)(3) (providing statements exposing a person to criminal
liability are exceptions to the rule against hearsay);
End of Horn, 829 F.3d at 686 (“Statements
admitted under the firmly rooted hearsay exceptions
enumerated in Rule 803 and 804-for example, dying
declarations, excited utterances, or statements made for
medical treatment-are so trustworthy that adversarial testing
would add little to their reliability.”). Based on
these facts surrounding defendant's statement, it is
Iron Crow's statement is offered as evidence of a
material fact. Defendant offers his prior statement in
support of his self defense argument, and in support of his
position that he was responding to a threat of violence,
matters which are central to his defense. (Docket 82 at p.
3). The statement defendant made to law enforcement directly
addresses whether he acted in self defense. Both the
defendant and the government agreed to include a self defense
instruction in the court's primary jury instructions
given before opening statements by counsel. (Docket 98 at p.
10). The defendant's statement to the agents relates to a
defendant's statement is more probative than other
reasonably available evidence. The court's self defense
instruction provides: “If a person reasonably believes
that force is necessary to protect himself from what he
reasonably believes to be unlawful physical harm about to be
inflicted by another and he uses such force, then he acted in
self defense.” Id. Although defendant's
belief must be objectively reasonable to constitute self
defense, he must also have the subjective belief that
“force is necessary . . . .” Id. It is
difficult to imagine more probative evidence of what the
defendant believed than his own statements on that point.
See United States v. Waldman, 172 F.Supp.2d 1222,
1224 (D.S.D. 2001) (finding this requirement of Rule 807 met
when there was no answer to the question, “[w]here
would one go for more probative evidence?”). Under
these circumstances, the prosecution cannot prevail on a
rigid application of Evidence Rules 801, 803 and 804 to force
Mr. Iron Crow to take the stand when he has a constitutional
right not to do so.
of the defendant's statement will best serve the general
purposes of the rules of evidence and the interests of
justice. In a hotly contested murder case, Mr. Iron
Crow's ability to present a defense grounded in facts is
vital to the administration of justice. The Constitution
established this principle. “Whether rooted directly in
the Due Process Clause of the Fourteenth Amendment or in the
Compulsory Process or Confrontation Clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants a
meaningful opportunity to present a complete defense.”
Holmes v. South Carolina, 547 U.S. 319, 324 (2006)
(internal quotation marks omitted).
court finds defendant's statement to law enforcement
admissible under Federal Rule of Evidence 807.
The Sixth Amendment
and federal rulemakers have broad latitude under the
Constitution to establish rules excluding evidence from
criminal trials.” Id. (internal quotation
marks omitted). “This latitude, however, has
limits.” Id. As noted above, the Sixth
Amendment “guarantees criminal defendants a meaningful
opportunity to present a complete defense.”
Id. “[W]here constitutional rights directly
affecting the ascertainment of guilt are implicated, the
hearsay rule may not be applied mechanistically to defeat the
ends of justice.” Chambers v. Mississippi, 410
U.S. 284, 302 (1973). This inquiry involves balancing the
interests behind the rules of evidence against the
constitutional guarantee of “a meaningful opportunity
to present a complete defense.” United States v.
Wilkens, 742 F.3d 354, 364 (8th Cir. 2014) (internal