In Accomplice Accusations in the Criminal Process – The Application of Sixth Amendment Tests for the Reliability of Hearsay Evidence to Probable Cause Determinations – 16 Rutgers L.J. (1984-1985), Mr. Steering explains the disparate treatment of the custodial confessions by one accomplice, implicating his confederate and himself. The Federal Courts have treated these “accomplice accusations”, “inherently unreliable” for 6th Amendment Confrontation Clause Purposes, and for not qualifying under Hearsay Exception under F.R.E. 804(b)(3), Declaration Against Penal Interest.

However, when the same “accomplice accusation” is used to apply for a search warrant, the Federal Courts treat such statements as “reliable”, for 4th Amendment purposes.

As statement is either reliable or not. There is no amount of judicial twisting of logic and reason, that can justify an evaluation of the circumstances under which a custodial confession, implicating a confederate, deems the statement reliable or not. It either is or isn’t reliable.

In this Law Review Article, Mr. Steering discusses how the courts performed legal gymnastics, to skirt logic and the transitory principle.

Jerry L. Steering, Esq.