Reversible Error to Allow In-Custody Testimony of Co-Defendant Which Was Not A “Declaration Against Penal Interest”
March 4th, 2023

In People v. Gallardo (2017) 13 Cal.App.5th 51 the judge committed reversible error by admitting extrajudicial  statements of a non-testifying third codefendant regarding the role of the other two defendants in the crime.


After the declarant codefendant was arrested, the prosecution planted two informants in his cell for the purpose of eliciting information from him concerning the charged incident. Their conversations, which were recorded, included incriminating statements that also inculpated the two other codefendants.


Admission of these statements did not violate the Confrontation Clause because they were not testimonial.  However, their admission was still improper because they were hearsay and did not qualify as admissions against penal interest.  The hearsay exception does not apply to statements “‘that are self-serving or otherwise appear to shift responsibility to others…,’” even if they were “‘made within a broader narrative that is generally self-inculpatory.’”  Thus, the declarant’s statements were not admissible although they included some admission of the declarant’s complicity “by demonstrating [he] had knowledge of what had occurred…, [because] the statements nonetheless ‘placed the major responsibility’ on his co-defendants.’”


The appellate court further held that the statements were made under circumstances questioning their reliability because they “were intended, at least in part, to mitigate [the declarant’s] own blameworthiness[;]” the declarant “provided conflicting descriptions of his and his co-defendants’ respective role[s] in the offense…; [and] all of [his] statements identifying [one codefendant] as the shooter and [the other codefendant] as the driver were preceded by leading questions or narrative statements by the informants.”


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