Rethinking the Limits of the Interpretive Maxim of Constitutional Avoidance: The Case Study of the Corroboration Requirement for Inculpatory Declarations Against Penal Interest (Federal Rule of Evidence 804(B)(3))

35 Pages Posted: 2 Apr 2008

See all articles by Edward J. Imwinkelried

Edward J. Imwinkelried

University of California, Davis - School of Law


Federal Rule of Evidence 804(b)(3) codifies the hearsay exception for declarations against penal interest. The statute expressly provides that when the defense offers a third party's declaration exculpating the accused, the defense must present corroboration for the declaration. The statutory language does not purport to impose a similar requirement when the prosecution offers a third party's declaration inculpating the accused.

The differential treatment of prosecution and defense hearsay under Rule 804(b)(3) seems at odds with the adversary system's commitment to evenhandedness. Shortly after the enactment of the statute in 1975, defense counsel began urging the courts to extend the corroboration requirement to prosecution hearsay. With few exceptions, the courts have heeded that urging and applied the requirement to prosecution hearsay as well as defense hearsay proffered under the statute. Defense counsel and commentators had argued that the disparity violated the Equal Protection Clause and that the lack of corroboration for prosecution hearsay ran afoul of the Confrontation Clause. Invoking the interpretive maxim of constitutional avoidance, most courts read a corroboration requirement for prosecution hearsay into the statute in order to moot the doubt about the constitutionality of the legislation under the latter Clause.

However, two developments necessitate a rethinking of this line of authority. To begin with, the Supreme Court's recent Sixth Amendment decisions, Crawford v. Washington, 541 U.S. 36 (2004) and Davis v. Washington, 547 U.S. 813 (2006), have undermined the argument that the lack of a corroboration requirement renders the statute unconstitutional under the Confrontation Clause. Under Crawford, if the prosecution hearsay is testimonial, the prosecution must demonstrate that the accused had a prior opportunity to question the declarant and that the declarant is unavailable at the time of trial. Under Davis, when the prosecution hearsay is nontestimonial, it is seemingly exempt from Confrontation Clause scrutiny. In either event, the existence of corroboration is irrelevant.

The second development is the emergence of textualism as the dominant modern approach to statutory interpretation. One of the conditions for invoking the constitutional avoidance maxim is that the alternative interpretation, mooting the constitutional doubt, be a plausible reading of the statutory language. Under the earlier legal process school of statutory construction, many courts felt free to distort and strain statutory text. However, out of respect for separation of powers, textualism places renewed emphasis on the importance of the statutory language formally approved by the legislature. From a textualist perspective, the judicial gloss to Rule 804(b)(3) is indefensible. The statutory language simply will not support the interpretation that there is a corroboration requirement for prosecution hearsay that otherwise qualifies under 804(b)(3). In some cases, moderate textualists will rest an interpretation on extrinsic legislative history material. However, in the case of the statutory corroboration requirement, those materials do not justify the extension of the requirement to prosecution hearsay.

The purpose of this article is two-fold. One is to critique the line of authority that has added the judicial gloss to the statute. That topic is relatively narrow and may soon be moot-in May, the Advisory Committee will take up a proposal to amend Rule 804(b)(3) to expressly incorporate a corroboration requirement for prosecution hearsay. The second purpose, though, is to explore the broader question of the impact of textualism on the constitutional avoidance maxim. The Supreme Court frequently invokes that maxim, and this article contends that textualism raises the bar for the plausible, alternative interpretation mooting the constitutional doubt.

Suggested Citation

Imwinkelried, Edward J., Rethinking the Limits of the Interpretive Maxim of Constitutional Avoidance: The Case Study of the Corroboration Requirement for Inculpatory Declarations Against Penal Interest (Federal Rule of Evidence 804(B)(3)). Gonzaga Law Review, Forthcoming, UC Davis Legal Studies Research Paper No. 136, Available at SSRN:

Edward J. Imwinkelried (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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