Phillips v. Herndon

Under some circumstances it is reasonable for a court to exclude a third-party confession where the declarant has made prior conflicting statements.

Steven Phillips and his accomplice Robert Cress were found guilty of murder. At trial, the evidence showed that Phillips had admitted to the murder and had the murder weapon in his possession at the time of the crime. In addition, Cress admitted twice that Phillips was the one who shot the weapon. However, the morning after Cress’s confession, Cress changed his story to say that instead he was the shooter, not Phillips. In affirming the trial court’s decision, the California Court of Appeal held that Cress’s statements “lacked sufficient indicia of trustworthiness to be admissible” under California’s evidence law because physical evidence contradicted them and because “Cress made three inconsistent statements about his involvement in the murder.” Phillips’s habeas corpus petition was denied, but the Ninth Circuit granted a certificate of appealability. The panel held that the trial court properly excluded Cress’s statements under California Evidence Code § 1230. In its decision, the panel looked to United States v. Moore, which held that § 1230 “contemplates that some out-of-court admissions of guilt will be excluded, despite their relevance, because they possess insufficient indications of trustworthiness.” Moore upheld “the exclusion of a third-party confession where the declarant ‘contradicted his statement multiple times.’” In deciding that the California Court of Appeals property excluded Cress’s statements, the panel also relied on cases from other circuits that concluded “such contradictions can alone render an otherwise admissible statement untrustworthy.” AFFIRMED.