Rivers: Credibility of declarant, not witness, determines Rule 807 admissibility

In Rivers v. U.S., No. 12-15208 (Feb. 5, 2015), the Court agreed with the habeas petitioner that the district court erroneously admitted testimony under Fed. R. Evid. 807’s residual exception to the hearsay rule, but affirmed the denial of habeas relief because, even after excising the improperly admitted testimony, Rivers failed to prove his claims. At the habeas hearing, the district court admitted hearsay testimony by a co-defendant’s lawyer about a meeting where he had communicated with Rivers about plea agreements, contrary to Rivers’ claim that his lawyer failed to discuss this with him. The district court, over objection, admitted this testimony as having “circumstantial guarantees of trustworthiness.” The Court noted that the inquiry is not the trustworthiness of the witness reciting the hearsay statements in court, but of the declarant who originally made the statements. The Court found that statements made by an attorney to counsel for a codefendant are not inherently trustworthy simply because they are made by a lawyer during the course of representing a criminal defendant. The Court also noted the absence of corroborating evidence. The Court, however, found the error to be harmless, because Rivers’ story was not credible, in light of evidence that Rivers was aware of the evidence against him, and of the terms of a plea offer.