Murder case may alter hearsay rules

By Bradley D. McAuliff and Margaret Bull Kovera, PhD
Florida International University

In a case that could have far reaching implications for the use of hearsay evidence in criminal proceedings, the U.S. Supreme Court has agreed to review a capital murder case in which a witness's tape-recorded statements were used to convict his brother.

In April 1996, a Virginia grand jury indicted Benjamin Lee Lilly on criminal charges of abduction, robbery, car-jacking and murder. At trial, the Commonwealth alleged that Lilly, aided by his brother Mark and a friend named Barker, illegally entered a house and stole guns, money, and alcohol. Lilly and his accomplices drove to several different locations and repeatedly attempted to trade their newly acquired guns for drugs. When their car broke down, they abducted Alex DeFilippis from a nearby convenience store and hijacked his car. Lilly drove to an isolated riverbank and ordered DeFilippis to surrender his clothes and wallet. Leaving DeFilippis behind, the three men returned to the car, where Lilly reportedly grabbed a pistol from his brother, ran back to DeFilippis, and fatally shot him four times. When asked upon returning to the car why he had shot the victim, Lilly replied that DeFilippis had seen his face.

At trial, the defense sought to exclude statements made by Mark to police that implicated Lilly as the sole triggerman in the murder and minimized his own role in the crime spree. Mark, who was called as a witness for the Commonwealth, invoked his Fifth Amendment right against self-incrimination and elected not to testify. Because Lilly's brother was then considered unavailable as a witness, the Commonwealth moved to introduce a tape-recording of his pretrial statements implicating Lilly in the murder. The defense objected, arguing that these statements constituted hearsay evidence and did not fall under the hearsay exception because they were self-serving and shifted responsibility of the crime from the declarant (Mark) to the defendant (Lilly). The court overruled this objection and admitted Mark's statements on the basis that they were made against his penal interest (i.e., the declarant implicated himself in related crimes). The court also noted that the hearsay testimony appeared to be reliable in light of other evidence, including Mark's state of mind when he provided the statements and additional corroborating testimony from Barker. The court ruled that the defense's argument that the statements were made in the declarant's self-interest did not pertain to admissibility, but instead pertained to the weight that jurors should apply when considering the evidence.

Based on this and other evidence, a jury convicted Lilly of capital murder and sentenced him to death. Lilly appealed his conviction to the state supreme court, contending that the hearsay testimony proffered at trial was inadmissible and violated his Sixth Amendment right to confrontation. Although Lilly's claim was rejected by the state supreme court (Lilly v. Virginia, 499 S.E.2d 522), the U.S. Supreme Court agreed to review the lower court's decision.

The Lilly case raises several intriguing questions of relevance to the legal and social scientific communities. First, a defendant's Sixth Amendment right to confront and cross-examine witnesses against him is not absolute; therefore, hearsay evidence is admissible in some situations. When determining whether out-of-court statements are admissible, judges place primary emphasis on the reliability of that evidence. Several factors in Lilly call into question the rationale used when determining whether Mark's pretrial statements were reliable. The court, for example, cited evidence indicating that Mark realized the importance of his statements, as well as testimony from Barker that corroborated Mark's account of the crime. Although we cannot determine whether these features were accurate indicators of the statement's reliability, the fact that both witnesses stood to benefit greatly from implicating Lilly as the sole perpetrator of the murder cannot be ignored.

Social scientists have just begun to examine the issues surrounding the use of hearsay evidence. Although past research has highlighted factors that contribute to the unreliability of eyewitness testimony, little attention has been paid to the factors associated with the unreliability of hearsay testimony. We also know little about how jurors evaluate hearsay evidence. Previous research has demonstrated that jurors are more influenced by eyewitness testimony than by hearsay testimony; however, we do not know whether jurors can differentiate between reliable and unreliable hearsay evidence. How do jurors' reliability assessments and decisions differ when hearsay testimony is provided in court by a live witness compared to tape-recorded statements such as those used in the Lilly case? How do statements made against the penal interest of the declarant influence juror decision-making compared to more traditional forms of hearsay testimony? Research that determines answers to questions such as these will provide the courts with relevant psychological evidence that could inform their admissibility decisions regarding hearsay evidence.

"Judicial notebook" is an effort by the Courtwatch Committee of APA's Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making.



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