source: Caselaw Access Project

author: Justice Thomas Justice Stevens,

license: Public Domain

text:
    SHANNON v. UNITED STATES
    No. 92-8346.
    Argued March 22, 1994
    Decided June 24, 1994

      Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 588.

      Thomas R. Trout, by appointment of the Court, 510 U. S. 943, argued the cause and filed briefs for petitioner.

      Amy L. Wax argued the cause for the United States. With her on the brief were Solicitor General Days, Assist

      ant Attorney General Harris, Deputy Solicitor General Bryson, and Deborah Watson

        Peter Margulies filed a brief for the Coalition for the Fundamental Rights of Ex-Patients urging reversal.

   Justice Thomas

delivered the opinion of the Court.

In this case, we consider whether a federal district court is required to instruct the jury regarding the consequences to the defendant of a verdict of “not guilty by reason of insanity,” either under the Insanity Defense Reform Act of 1984 or as a matter of general federal practice. We conclude that such an instruction is not required, and therefore affirm.

I

A

Prior to the enactment of the Insanity Defense Reform Act of 1984 (IDRA or Act), 18 U. S. C. §§17, 4241-4247, federal courts generally did not recognize a verdict of “not guilty by reason of insanity” (NGI). Defendants who mounted a successful insanity defense — that is, those who raised a reasonable doubt as to their sanity at the time of the offense — were simply found “not guilty.” See, e. g., United States v. McCracken, 488 F. 2d 406, 409, 418 (CA5 1974); Evalt v. United States, 359 F. 2d 534, 537 (CA9 1966). In addition, there was no general federal civil commitment procedure available to ensure that an insanity acquittee would receive proper care and treatment. Only in the District of Columbia was a defendant who successfully presented an insanity defense to a federal criminal charge subject to a federal commitment process — a process governed by a 1955 congressional enactment. See 69 Stat. 609, as amended, D. C. Code Ann. §24-301 (1981). Elsewhere, federal authorities were forced to rely on the willingness of state authorities to institute civil commitment proceedings. Reliance on state cooperation was “at best a partial solution to a serious problem,” however, and federal courts “[t]ime and again . . . decried this gaping statutory hole.” McCracken, supra, at 417.

Before the IDRA was enacted, the Federal Courts of Appeals generally disapproved of instructing the jury concerning the post-trial consequences of an insanity acquittal. Thus, jurors typically were given no information with regard to what would happen to a defendant acquitted by reason of insanity. The courts in general gave two reasons for disapproving such instructions. First, they pointed out that, given the absence of a federal commitment procedure, the consequences of an insanity acquittal were far from certain. Second, they concluded that such instructions would run afoul of the well-established principle that a jury is to base its verdict on the evidence before it, without regard to the possible consequences of the verdict. See, e. g., McCracken, supra, at 423; Evalt, supra, at 546; United States v. Borum, 464 F. 2d 896, 900-901 (CA10 1972).

The only Court of Appeals to endorse the practice of instructing the jury regarding the consequences of an insanity acquittal was the District of Columbia Circuit. See Lyles v. United States, 254 F. 2d 725 (1957) (en banc), cert. denied, 356 U. S. 961 (1958). In Lyles, the District of Columbia Circuit addressed the jury instruction question in the context of D. C. Code Ann. §24-301 (1951 ed., Supp. V), which, unlike generally applicable federal law, provided for a special verdict of NGI and, as noted above, a civil commitment procedure. The Lyles court recognized the “well established and sound” doctrine “that the jury has no concern with the consequences” of a verdict, but stated that the doctrine “d[id] not apply” to the situation before it. 254 F. 2d, at 728. According to the court, although jurors generally were “aware of the meanings of verdicts of guilty and not guilty,” they were unfamiliar with the meaning of an NGI verdict. Ibid. The court concluded that jurors had “a right to know” the meaning of an NGI verdict “as accurately as [they] kno[w] by common knowledge the meaning of the other two possible verdicts.” Ibid.

The acquittal of John Hinckley on all charges stemming from his attempt on President Reagan’s life, coupled with the ensuing public focus on the insanity defense, prompted Congress to undertake a comprehensive overhaul of the insanity defense as it operated in the federal courts. The result of this effort was the IDRA. In the IDRA, Congress made insanity an affirmative defense to be proved by the defendant by clear and convincing evidence, and created a special verdict of “not guilty only by reason of insanity.” 18 U. S. C. §§ 17 and 4242(b). In addition, Congress filled the “statutory hole” that had been identified by federal courts, see McCracken, supra, by creating a comprehensive civil commitment procedure. §4243. Under that procedure, a defendant found NGI is held in custody pending a court hearing, which must occur within 40 days of the verdict. § 4243(c). At the conclusion of the hearing, the court determines whether the defendant should be hospitalized or released. §§ 4243(d), (e).

B

At about 4 a.m. on August 25,1990, a police officer stopped petitioner Terry Lee Shannon, a convicted felon, on a street in Tupelo, Mississippi. For reasons not explained in the record before us, the officer asked Shannon to accompany him to the station house to speak with a detective. After telling the officer that he did not want to live anymore, Shannon walked across the street, pulled a pistol from his coat, and shot himself in the chest.

Shannon survived his suicide attempt and was indicted for unlawful possession of a firearm by a felon in violation of 18 U. S. C. § 922(g)(1). At trial, he raised the insanity defense, and asked the District Court to instruct the jury that he would be involuntarily committed if the jury returned an NGI verdict. The District Court refused to give Shannon’s proposed charge. Instead, it instructed the jury “to apply the law as [instructed] regardless of the consequence,” and that “punishment . . . should not enter your consideration or discussion.” App. A-27 to A-28. The jury returned a guilty verdict.

The Court of Appeals for the Fifth Circuit affirmed Shannon’s conviction. 981 F. 2d 759 (1993). The court noted that under its pre-IDRA precedent, juries were not to be instructed concerning the consequences of an insanity acquittal. Id., at 761-762 (discussing United States v. McCracken, 488 F. 2d 406 (CA5 1974)). Turning to the text of the IDRA, the court observed that Congress had “said nothing about informing juries of the consequences” of an NGI verdict. 981 F. 2d, at 764. Because there was no “statutory requirement” to the contrary, the court “adhere[d] to the established axiom that it is inappropriate for a jury to consider or be informed about the consequences of its verdict.” Ibid.

We granted certiorari, 510 U. S. 943 (1993), in order to consider whether federal district courts are. required to instruct juries with regard to the consequences of an NGI verdict.

II

It is well established that when a jury has no sentencing function, it should be admonished to “reach its verdict without regard to what sentence might be imposed.” Rogers v. United States, 422 U. S. 35, 40 (1975). The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury. The jury’s function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury’s task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion. See Pope v. United States, 298 F. 2d 507, 508 (CA5 1962); cf. Rogers, supra, at 40.

Despite these familiar precepts, Shannon contends that an instruction informing the jury of the consequences of an NGI verdict is required under the IDRA whenever requested by the defendant. He also argues that such an instruction is required as a matter of general federal criminal practice. We address each argument in turn.

A

To determine whether Congress intended courts to depart from the principle that jurors are not to be informed of the consequences of their verdicts, we turn first, as always, to the text of the statute. The IDRA refers to the subject of jury instructions only once, and that reference occurs in its description of the possible verdicts a jury may return. Under the Act, “the jury shall be instructed to find . . . the defendant — (1) guilty; (2) not guilty; or (8) not guilty only by reason of insanity.” 18 U. S. C. § 4242(b). The text of the Act gives no indication that jurors are to be instructed regarding the consequences of an NGI verdict. As the court below observed, the Act “leaves the jury solely with its customary determination of guilt or innocence.” 981 F. 2d, at 763. The Act’s text thus gives no support to Shannon’s contention that an instruction informing the jury of the consequences of an NGI verdict is required.

Shannon asserts, however, that an express statutory directive is not necessary because, by modeling the IDRA on D. C. Code Ann. §24-301 (1981), Congress impliedly adopted the District of Columbia Circuit’s decision in Lyles and the practice endorsed by that decision of instructing the jury as to the consequences of an NGI verdict. For this argument he relies on Capital Traction Co. v. Hof 174 U. S. 1, 36 (1899), in which we stated:

“By a familiar canon of interpretation, heretofore applied by this court whenever Congress ... has borrowed from the statutes of a State provisions which had received in that State a known and settled construction before their enactment by Congress, that construction must be deemed to have been adopted by Congress together with the text which it expounded, and the provisions must be construed as they were understood at the time in the State.”

See also Carolene Products Co. v. United States, 323 U. S. 18, 26 (1944) (“[T]he general rule [is] that adoption of the wording of a statute from another legislative jurisdiction carries with it the previous judicial interpretations of the wording”); Cathcart v. Robinson, 5 Pet. 264, 280 (1831). The canon of interpretation upon which Shannon relies, however, is merely a “presumption of legislative intention” to be invoked only “under suitable conditions.” Carotene Products, supra, at 26. We believe that the “conditions” are not “suitable” in this case. Indeed, although Congress may have had the District of Columbia Code in mind when it passed the IDRA, see United States v. Crutchfield, 893 F. 2d 376, 378 (CADC 1990), it did not, in the language of Hof, “borrow” the terms of the IDRA from the District of Columbia Code. Rather, Congress departed from the scheme embodied in D. C. Code Ann. §24-301 in several significant ways.

The IDRA, for example, requires a defendant at trial to prove insanity by clear and convincing evidence, 18 U. S. C. § 17(b); the District of Columbia statute, by contrast, employs a preponderance standard, D. C. Code Ann. § 24 — 301(j). A commitment hearing must be held under the IDRA within 40 days of an NGI verdict, 18 U. S. C. § 4243(c); the period is 50 days under the District of Columbia scheme, D. C. Code Ann. § 24-301(d)(2)(A). Under the IDRA, a defendant whose offense involved bodily injury to another or serious damage to another’s property, or the substantial risk thereof, must demonstrate at the hearing by clear and convincing evidence that he is entitled to release, 18 U. S. C. § 4243(d); under the District of Columbia scheme, an acquittee, regardless of the character of his offense, need only meet the preponderance standard, D. C. Code Ann. § 24-301(k)(3). The IDRA provides that an acquittee, once committed, may be released when he no longer presents a substantial risk of harm to others or to their property, 18 U. S. C. § 4243(f); an acquittee under the District of Columbia system may be released from commitment when he “will not in the reasonable future be dangerous to himself or others,” D. C. Code Ann. §24-301(e). Finally, in the IDRA, Congress rejected the broad test for insanity that had been utilized under the District of Columbia provision, and instead adopted a more restrictive formulation under which a person is deemed insane if he is unable “to appreciate the nature and quality or the wrongfulness of his acts.” 18 U. S. C. § 17(a). We believe that these significant differences between the IDRA and D. C. Code Ann. § 24-301 render the canon upon which Shannon relies inapplicable in this case.

Alternatively, Shannon contends that a provision explicitly requiring the instruction is unnecessary for a different reason: namely, that Congress made its intention to adopt the Lyles practice crystal clear in the IDRA’s legislative history. In particular, Shannon points to the following statement in the Senate Report:

“The Committee endorses the procedure used in the District of Columbia whereby the jury, in a case in which the insanity defense has been raised, may be instructed on the effect of a verdict of not guilty by reason of insanity. If the defendant requests that the instruction not be given, it is within the discretion of the court whether to give it or not.” S. Rep. No. 98-225, p. 240 (1983) (footnotes omitted).

Members of this Court have expressed differing views regarding the role that legislative history should play in statutory interpretation. Compare County of Washington v. Gunther, 452 U. S. 161, 182 (1981) (Rehnquist, J., dissenting) (“[I]t [is] well settled that the legislative history of a statute is a useful guide to the intent of Congress”), with Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 617 (1991) (Scalia, J., concurring in judgment) (legislative history is “unreliable ... as a genuine indicator of congressional intent”). We are not aware of any case, however (and Shannon does not bring one to our attention), in which we have given authoritative weight to a single passage of legislative history that is in no way anchored in the text of the statute. On its face, the passage Shannon identifies does not purport to explain or interpret any provision of the IDRA. Rather, it merely conveys the Committee’s “endorsement” of the Lyles “procedure” — a procedure that Congress did not include in the text of the Act. To give effect to this snippet of legislative history, we would have to abandon altogether the text of the statute as a guide in the interpretative process. We agree with the District of Columbia Circuit that “courts have no authority to enforce [a] principle] gleaned solely from legislative history that has no statutory reference point.” International Brotherhood of Elec. Workers, Local Union No. 474, AFL-CIO v. NLRB, 814 F. 2d 697, 712 (1987) (emphasis deleted). We thus conclude that there is no support in the Act for the instruction Shannon seeks.

B

Setting the Act aside, Shannon argues that the instruction he proposes is required as a matter of general federal criminal practice. Presumably, Shannon asks us to invoke our supervisory power over the federal courts. According to Shannon, the instruction is necessary because jurors are generally unfamiliar with the consequences of an NGI verdict, and may erroneously believe that a defendant who is found NGI will be immediately released into society. Jurors who are under this mistaken impression, Shannon continues, may also fear that the defendant, if released, would pose a danger to the community. Shannon concludes that such jurors, in order to ensure that the defendant will not be released, may be tempted to return a guilty verdict in a ease in which an NGI verdict would be appropriate.

Even assuming Shannon is correct that some jurors will harbor the mistaken belief that defendants found NGI will be released into society immediately — an assumption that is open to debate — the jury in his case was instructed “to apply the law as [instructed] regardless of the consequence,” and that “punishment... should not enter your consideration or discussion.” App. A-27 to A-28. That an NGI verdict was an option here gives us no reason to depart from “the almost invariable assumption of the law that jurors follow their instructions.” Richardson v. Marsh, 481 U. S. 200, 206 (1987). Indeed, although it may take effort on a juror’s part to ignore the potential consequences of the verdict, the effort required in a case in which an NGI defense is raised is no different from that required in many other situations. For example, if the Government fails to meet its burden of proof at trial, our judicial system necessarily assumes that a juror will vote to acquit, rather than to convict, even if he is convinced the defendant is highly dangerous and should be incarcerated. We do not believe that the situation involving an NGI verdict should be treated any differently.

We also are not persuaded that the instruction Shannon proposes would allay the fears of the misinformed juror about whom Shannon is concerned. “[I]f the members of a jury are so fearful of a particular defendant’s release that they would violate their oaths by convicting [the defendant] solely in order to ensure that he is not set free, it is questionable whether they would be reassured by anything short of an instruction strongly suggesting that the defendant, if found NGI, would very likely be civilly committed for a lengthy period.” United States v. Fisher, 10 F. 3d 115, 122 (CA3 1993), cert. pending, No. 93-7000. An accurate instruction about the consequences of an NGI verdict, however, would give no such assurance. Under the IDRA, a postverdict hearing must be held within 40 days to determine whether the defendant should be released immediately into society or hospitalized. See 18 U. S. C. §§ 4243(c), (d). Thus, the only mandatory period of confinement for an insanity acqúittee is the period between the verdict and the hearing. Instead of encouraging a juror to return an NGI verdict, as Shannon predicts, such information might have the opposite effect — that is, a juror might vote to convict in order to eliminate the possibility that a dangerous defendant could be released after 40 days or less. Whether the instruction works to the advantage or disadvantage of a defendant is, of course, somewhat beside the point. Our central concern here is that the inevitable result of such an instruction would be to draw the jury’s attention toward the very thing — the possible consequences of its verdict— it should ignore.

Moreover, Shannon offers us no principled way to limit the availability of instructions detailing the consequences of a verdict to cases in which an NGI defense is raised. Jurors may be as unfamiliar with other aspects of the criminal sentencing process as they are with NGI verdicts. But, as a general matter, jurors are not informed of mandatory minimum or maximum sentences, nor are they instructed regarding probation, parole, or the sentencing range accompanying a lesser included offense. See United States v. Thigpen, 4 F. 3d 1573, 1578 (CA11 1993) (en banc), cert. pending, No. 93-6747; United States v. Frank, 956 F. 2d 872, 879 (CA9 1991), cert. denied, 506 U. S. 932 (1992). Because it is conceivable that some jurors might harbor misunderstandings with regard to these sentencing options, a district court, under Shannon’s reasoning, might be obligated to give juries information regarding these possibilities as well. In short, if we pursue the logic of Shannon’s position, the rule against informing jurors of the consequences of their verdicts would soon be swallowed by the exceptions.

Finally, Congress’ recent action in this area counsels hesitation in invoking our supervisory powers. As noted above, the IDRA was the product of a thorough and exhaustive review of the insanity defense as used in the federal courts. Given the comprehensive nature of the task before it, Congress certainly could have included a provision requiring the instruction Shannon seeks. For whatever reason, Congress chose not to do so. Under these circumstances, we are reluctant to depart from well-established principles of criminal practice without more explicit guidance from Congress.

Ill

Although we conclude that the IDRA does not require an instruction concerning the consequences of an NGI verdict, and that such an instruction is not to be given as a matter of general practice, we recognize that an instruction of some form may be necessary under certain limited circumstances. If, for example, a witness or prosecutor states in the presence of the jury that a particular defendant would “go free” if found NGI, it may be necessary for the district court to intervene with an instruction to counter such a misstatement. The appropriate response, of course, will vary as is necessary to remedy the specific misstatement or error. We note this possibility merely so that our decision will not be misunderstood as an absolute prohibition on instructing the jury with regard to the consequences of an NGI verdict. Our observations in this regard are not applicable to Shannon’s situation, however, for there is no indication that any improper statement was made in the presence of the jury during his trial.

* * *

Because the District Court properly refused to give the instruction Shannon requested, we affirm.

So ordered.

Justice Stevens,

with whom Justice Blackmun joins, dissenting.

A rule that has minimized the risk of injustice for almost 40 years should not be abandoned without good reason. In 1957, shortly after Congress enacted the statute providing for civil commitment of persons found not guilty by reason of insanity in trials conducted in the District of Columbia, the Court of Appeals, sitting in banc, considered whether juries should be instructed about the significance of that provision. Recognizing that an uninformed jury might erroneously find an insane defendant guilty to avoid the risk that a dangerous individual would otherwise go free, the court held that such an instruction should be given. Lyles v. United States, 254 F. 2d 725 (CADC 1957), cert. denied, 356 U. S. 961 (1958). In an opinion jointly authored by Judge Prettyman and then-Judge Warren Burger, the court explained that the doctrine that the jury has no concern with the consequences of a verdict “does not apply in the problem before us”:

“The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. . . . But a verdict of not guilty by reason of insanity has no such commonly understood meaning. ... It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.” Lyles, 254 F. 2d, at 728.

Concurring with this part of the foregoing opinion, Judge Bazelon acknowledged that “[t]he false assumption that acquittal by reason of insanity, like outright acquittal, frees the accused to walk out on the streets may lead juries to convict, despite strong evidence of insanity at the time of the crime.” Id., at 734. Trial courts in the District of Columbia have used a pattern instruction — approved by prosecutors, defense counsel, and trial judges — ever since.

Other federal courts did not give a comparable instruction prior to 1984 because no federal statute authorized civil commitment for insanity acquittees except in the District of Columbia. In those courts, an instruction advising the jury about the consequences of a verdict of not guilty by reason of insanity — often that such a defendant would, indeed, go free — would have tended to increase the risk of improper convictions. It was therefore appropriate for federal judges to adhere to the general rule that the jury should be instructed to base its decision on the evidence before it, without regard to the possible consequences of its verdict. That rule, of course, was primarily designed to protect defendants from the risk that jurors might otherwise improperly rely on matters such as sympathy for the victim, arguments of counsel, or inadmissible comments in the courtroom.

When Congress enacted the Insanity Defense Reform Act of 1984 (Act), 18 U.S.C. §§17, 4241-4247, it established a civil commitment process for the entire federal system, thus making the basis for the District of Columbia Circuit’s holding in Lyles applicable to all federal courts. The Act’s legislative history unmistakably demonstrates that the Act’s sponsors assumed that the Lyles precedent would thereafter be followed nationwide. See ante, at 583. That assumption does not have the force of a statutory mandate, but it verifies that thoughtful legislators familiar with the issue believed that precedent to be entirely sound. That this Court should now decide to change an established rule that Congress accepted and that protects defendants meaningfully against an obvious risk of injustice is startling — particularly when that change is for no reason other than a perceived inconsistency with another rule that is generally protective of defendants’ rights. A far wiser disposition would allow the defendant to choose between the two rules, rather than tilt the scales to favor the prosecutor in every case.

The incongruity of the Court’s holding is compounded by its selection of Rogers v. United States, 422 U. S. 35 (1975), as its authority for what it calls the “principle” that juries should not consider the consequences of their verdict. Ante, at 579. It is worth noting that the writer of the Court’s opinion in Rogers — Chief Justice Burger — was also one of the authors of Lyles. In Rogers, the jury had sent the judge a note asking whether he would accept a verdict of “Guilty as charged with extreme mercy of the Court”; when the court answered yes, the jury returned five minutes later with that verdict. Rogers, 422 U. S., at 36-37. What Rogers held is that the guilty verdict had to be set aside because the court had violated Rule 43 of the Federal Rules of Criminal Procedure by responding to an inquiry from the jury without advising defense counsel. Id., at 40-41. The Court also considered the judge’s response to be misleading because it did not advise the jury that their recommendation of mercy would not be binding on the court. Ibid. In that context, the failure to admonish the jury that it should reach its verdict without regard to what sentence might be imposed was prejudicial to the defendant. Instead of supporting the majority’s view, the case is more relevant for its illustration of how concerned juries are about the actual consequences of their verdicts. When there is a realistic danger that jurors’ deliberations may be distorted by an incorrect assumption about those consequences, elementary notions of fairness demand that a clarifying instruction be given.

The Court suggests that the instruction might actually prejudice the defendant. Ante, at 585-586. That argument lacks merit, as there is no need to give the instruction unless the defendant requests it. Alternatively, the Court advances the tired argument that if we followed the practice approved in Lyles, “the rule against informing jurors of the consequences of their verdicts would soon be swallowed by the exceptions,” ante, at 587. Given that the Lyles rule has survived in the District since 1957 without such consequences, this concern is illusory. Some courts have assumed that the instruction would help jurors focus on issues of guilt instead of punishment. “Freed from confusion and fear as to the practical effect of a verdict of not guilty by reason of insanity, jurors should be able to decide the insanity issue solely on the evidence and law governing the defense.” State v. Shickles, 760 P. 2d 291, 298 (Utah 1988). Rather than relying on a totally unsubstantiated qualm belied by history, it would be far wiser for the Court simply to recognize both the seriousness of the harm that may result from the refusal to give the instruction and the absence of any identifiable countervailing harm that may result from giving it.

The Court also contends that jurors today are more familiar with the consequences of a verdict of not guilty by reason of insanity than they were in 1957 when Lyles was decided. Ante, at 584, n. 9. No one has suggested, however, that the level of understanding even approximates that of the conventional choice between “guilty” and “not guilty.” Indeed, one recent study concluded that “the public overestimates the extent to which insanity acquittees are released upon acquittal and underestimates the extent to which they are hospitalized as well as the length of confinement of insanity acquittees who are sent to mental hospitals.” As long as significant numbers of potential jurors believe that an insanity acquittee will be released at once, the instruction serves a critical purpose. Yet even if, as the Court seems prepared to assume, all jurors are already knowledgeable about the issue, surely telling them what they already know can do no harm.

An increasing number of States that have considered the question endorses use of the instruction, as has the American Bar Association. Judge Newman’s succinct assessment of the pros and cons is exactly right: “There is no reason to keep this information from the jurors and every reason to make them aware of it.” United States v. Blume, 967 F. 2d 45, 52 (CA2 1992) (concurring opinion).

I respectfully dissent.

       See also United States v. Brawner, 471 F. 2d 969, 996 (CADC 1972) (en banc); United States v. Cohen, 733 F. 2d 128, 129-131 (CADC 1984) (en banc); United States v. Thigpen, 4 F. 3d 1573, 1576, and n. 1 (CA11 1993) (en banc), cert. pending, No. 93-6747.

       Shannon asked the court to give either of the two following instructions: (1) “Tn the event it is your verdict that [Shannon] is not guilty only by reason of insanity, it is required that the Court commit [him]’ or (2) “ ‘[Y]ou should know that it is required that the Court commit [Shannon] to a suitable hospital facility until such time as [he] does not pose a substantial risk of bodily injury to another or serious damage to the property of another.’ ” App. A-22.

       In addition to the court below, the Ninth and Eleventh Circuits recently have reaffirmed their pre-IDRA holdings that juries generally should not be instructed concerning the consequences of an insanity acquittal. See United States v. Frank, 956 F. 2d 872, 880-882 (CA9 1991), cert. denied, 506 U. S. 932 (1992); Thigpen, 4 F. 3d, at 1578. The Third Circuit has held that the decision to give such an instruction should be left to “the sound discretion of the trial judge.” United States v. Fisher, 10 F. 3d 115, 122 (1993), cert. pending, No. 93-7000. A panel of the Second Circuit recently divided three ways on the issue. See United States v. Blume, 967 F. 2d 45, 50 (1992) (Newman, J., concurring) (“I believe the instruction should always be given unless the defendant prefers its omission. Judge Winter believes the instruction should normally not be given. Judge Lumbard believes that the decision whether to give the instruction should be left to the discretion of the trial judge”).

       Particularly in capital trials, juries may be given sentencing responsibilities. See, e. g., Simmons v. South Carolina, ante, p. 154. It is undisputed that the jury had no such responsibilities in Shannon’s case.

       In Rogers, the jury had been deliberating for almost two horn’s without reaching a verdict. After the trial court informed the jury that it would accept a verdict of “Guilty as charged with extreme mercy of the Court,” the jury returned such a verdict within minutes. 422 U. S., at 36-37 (internal quotation marks omitted). We concluded that, instead of giving the jurors information about sentencing (that is, that they could recommend “extreme mercy”), the trial court should have “admoni[shed] [them] that [they] had no sentencing function and should reach [their] verdict without regard to what sentence might be imposed.” Id., at 40.

       District of Columbia Code Ann. §24-301 continued to govern the operation of the insanity defense in federal criminal prosecutions in the District of Columbia until the passage of the IDRA. Cf. United States v. Crutchfield, 893 F. 2d 376, 377-379 (CADC 1990) (holding that the IDRA applies prospectively to insanity acquittees committed after its enactment).

       Under the District of Columbia system, the courts had defined insanity as either the lack of substantial capacity to conform one’s conduct to the requirements of the law or the lack of substantial capacity to appreciate the wrongfulness of one’s acts. See Brawner, 471 F. 2d, at 973-995.

       In addition, we note that the canon upon which Shannon relies is a canon of statutory construction. It stems from the notion that a court, in interpreting “borrowed” statutory language, should apply the same construction to that language that was placed upon it by the courts in the jurisdiction from which it was borrowed. In this case, however, the court in the jurisdiction from which the statutory text was supposedly borrowed — that is, the Lyles court — did not purport to construe the language of the District of Columbia Code provision; rather, in holding that jurors should be informed of the consequences of an NGI verdict, the court appears to have relied on its supervisory power over the Federal District Courts in the District of Columbia. Cf. infra, at 584. Thus, we conclude that the canon is also inapplicable in this case because there was no “known and settled construction,” Capital Traction Co. v. Hof, 174 U. S. 1, 36 (1899), of the statute that Congress could have adopted by virtue of borrowing language from the District of Columbia statutory scheme.

       In the court below, Shannon made the additional argument that because Congress filled the “gap” that had been identified by the Federal Courts of Appeals prior to the IDRA with a general federal civil commitment procedure, “the practice announced in Lyles must now be applied nationwide.” 981 F. 2d 759, 763 (CA5 1993). We find this argument (which Shannon makes only implicitly before this Court) unpersuasive. As noted above, although the lack of a federal commitment procedure before the passage of the IDRA was one reason for rejecting a Lyles-type instruction, courts generally, and properly, relied additionally on the principle that juries are not to be concerned with the consequences of their verdicts. This principle is not altered by the fact that Congress established a civil commitment procedure. See Thigpen, 4 F. 3d, at 1577.

       We are not convinced that jurors are as unfamiliar with the consequences of an NGI verdict as Shannon suggests. It may have been the case in 1957 that, in contrast to verdicts of guilty and not guilty, “a verdict of not guilty by reason of insanity ha[d] no . . . commonly understood meaning.” Lyles v. United States, 254 F. 2d 725, 728 (CADC 1957) (en banc), cert. denied, 356 U. S. 961 (1958). Today, however, there is no reason to assume that jurors believe that defendants found NGI are immediately set free. See Fisher, 10 F. 3d, at 122 (“[H]ighly publicized cases, such as that involving John Hinckley, have dramatized the possibility of civil commitment following an NGI verdict”). See also Blume, 967 F. 2d, at 54 (Winter, J., concurring in result).

       As the court below observed, “a jury could assume that due to overcrowded mental hospitals, strapped social services budgets, sympathetic judges, etc., a defendant will be released after only a short period of commitment. To combat the prospect of early release, the jury could simply opt to find him guilty.” 981 F. 2d, at 763, n. 6. Indeed, depending upon the content of the instruction, information regarding the consequences of an NGI verdict could influence a juror’s decision in countless — and unpredictable — ways. See, e. g., Fisher, supra, at 121-122, and n. 7 (describing various scenarios in which sentencing information could induce compromise verdicts in the NGI context).

       Instruction 5.11 in the 1978 edition of the District of Columbia Criminal Jury Instructions reads:
      “If the defendant is found not guilty by reason of insanity it becomes the duty of the court to commit him to St. Elizabeths Hospital. There will be a hearing within 50 days to determine whether the defendant is entitled to release. In that hearing the defendant has the burden of proof. The defendant will remain in custody, and will be entitled to release from custody only if the court finds by a preponderance of the evidence that he is not likely to injure himself or other persons due to mental illness.”

       Silver, Cirincione, and Steadman, Demythologizing Inaccurate Perceptions of the Insanity Defense, 18 Law and Human Behavior 63, 68 (Feb. 1994).

       See, e. g., Erdman v. State, 315 Md. 46, 553 A. 2d 244 (1989); State v. Shickles, 760 P. 2d 291 (Utah 1988); People v. Young, 189 Cal. App. 3d 891, 234 Cal. Rptr. 819 (1987); People v. Thomson, 197 Colo. 232, 591 P. 2d 1031 (1979); Commonwealth v. Mulgrew, 475 Pa. 271, 380 A. 2d 349 (1977); Roberts v. State, 335 So. 2d 285 (Fla. 1976); Commonwealth v. Mutina, 366 Mass. 810, 323 N. E. 2d 294 (1975); State v. Babin, 319 So. 2d 367 (La. 1975). See also Fleming, Instructions in State Criminal Case in Which Defendant Pleads Insanity as to Hospital Confinement in Event of Acquittal, 81 A. L. R. 4th 659, 667 (1990) (noting “an apparent trend toward requiring or authorizing a jury instruction on the legal consequences of an insanity acquittal”).

       ABA Criminal Justice Mental Health Standards § 7-6.8 (1989).


author: Justice O’Connor Justice Scalia, Justice Ginsburg,

text:
    WILLIAMSON v. UNITED STATES
    No. 93-5256.
    Argued April 25, 1994
    Decided June 27, 1994

      O’Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and II-B, in which Blackmun, Stevens, Scalia, Souter, and Ginsburg, JJ., joined, and an opinion with respect to Part II-C, in which Scalia, J., joined. Scalia, J., filed a concurring opinion, post, p. 605. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment, in which Blackmun, Stevens, and Souter, JJ., joined, post, p. 607. Kennedy, J., filed an opinion concurring in the judgment, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 611.

      Benjamin S. Waxman argued the cause and filed briefs for petitioner.

      John F. Manning argued the cause for the United States. With him on the brief were Solicitor General Days and Assistant Attorney General Harris.

      Briefs of amici curiae urging affirmance were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, and M. Howard Wayne, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Larry EchoHawk of Idaho, Pamela Carter of Indiana, Robert T. Stephan of Kansas, Chris Gorman of Kentucky, Richard P Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Michael F. Easley of North Carolina, Lee Fisher of Ohio, Jeffrey B. Pine of Rhode Island, T. Travis Medlock of South Carolina, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, and James S. Gilmore III of Virginia; and for Wayne County, Michigan, by John D. O’Hair and Timothy A Baughman.

   Justice O’Connor

delivered the opinion of the Court, except as to Part II-C.

In this case we clarify the scope of the hearsay exception for statements against penal interest. Fed. Rule Evid. 804(b)(3).

I

A deputy sheriff stopped the rental car driven by Reginald Harris for weaving on the highway. Harris consented to a search of the car, which revealed 19 kilograms of cocaine in two suitcases in the trunk. Harris was promptly arrested.

Shortly after Harris’ arrest, Special Agent Donald Walton of the Drug Enforcement Administration (DEA) interviewed him by telephone. During that conversation, Harris said that he got the cocaine from an unidentified Cuban in Fort Lauderdale; that the cocaine belonged to petitioner Williamson; and that it "(vas to be delivered that night to a particular dumpster. Williamson was also connected to Harris by physical evidence: The luggage bore the initials of Williamson’s sister, Williamson was listed as an additional driver on the car rental agreement, and an envelope addressed to Williamson and a receipt with Williamson’s girlfriend’s address were found in the glove compartment.

Several hours later, Agent Walton spoke to Harris in person. During that interview, Harris said he had rented the car a few days earlier and had driven it to Fort Lauderdale to meet Williamson. According to Harris, he had gotten the cocaine from a Cuban who was Williamson’s acquaintance, and the Cuban had put the cocaine in the car with a note telling Harris how to deliver the drugs. Harris repeated that he had been instructed to leave the drugs in a certain dumpster, to return to his car, and to leave without waiting for anyone to pick up the drugs.

Agent Walton then took steps to arrange a controlled delivery of the cocaine. But as Walton was preparing to leave the interview room, Harris “got out of [his] chair ... and ... took a half step toward [Walton]... and ... said,... T can’t let you do that,’ threw his hands up and said ‘that’s not true, I can’t let you go up there for no reason.’ ” App. 40. Harris told Walton he had lied about the Cuban, the note, and the dumpster. The real story, Harris said, was that he was transporting the cocaine to Atlanta for Williamson, and that Williamson was traveling in front of him in another rental car. Harris added that after his car was stopped, Williamson turned around and drove past the location of the stop, where he could see Harris’ car with its trunk open. Ibid. Because Williamson had apparently seen the police searching the car, Harris explained that it would be impossible to make a controlled delivery. Id., at 41.

Harris told Walton that he had lied about the source of the drugs because he was afraid of Williamson. Id., at 61, 68; see also id., at 30-31. Though Harris freely implicated himself, he did not want his story to be recorded, and he refused to sign a written version of the statement. Id., at 24-25. Walton testified that he had promised to report any cooperation by Harris to the Assistant United States Attorney. Walton said Harris was not promised any reward or other benefit for cooperating. Id., at 25-26.

Williamson was eventually convicted of possessing cocaine with intent to distribute, conspiring to possess cocaine with intent to distribute, and traveling interstate to promote the distribution of cocaine, 21 U. S. C. §§ 841(a)(1), 846; 18 U. S. C. § 1952. When called to testify at Williamson’s trial, Harris refused, even though the prosecution gave him use immunity and the court ordered him to testify and eventually held him in contempt. The District Court then ruled that, under Rule 804(b)(3), Agent Walton could relate what Harris had said to him:

“The ruling of the Court is that the statements . . . are admissible under [Rule 804(b)(3)], which deals with statements against interest.
“First, defendant Harris’ statements clearly implicated himself, and therefore, are against his penal interest.
“Second, defendant Harris, the declarant, is unavailable.
“And third, as I found yesterday, there are sufficient corroborating circumstances in this case to ensure the trustworthiness of his testimony. Therefore, under [United States v. Harrell, 788 F. 2d 1524 (CA11 1986)], these statements by defendant Harris implicating [Williamson] are admissible.” App. 51-52.

Williamson appealed his conviction, claiming that the admission of Harris’ statements violated Rule 804(b)(3) and the Confrontation Clause of the Sixth Amendment. The Court of Appeals for the Eleventh Circuit affirmed without opinion, judgt. order reported at 981 F. 2d 1262 (1992), and we granted certiorari. 510 U. S. 1039 (1994).

II

A

The hearsay rule, Fed. Rule Evid. 802, is premised on the theory that out-of-court statements are subject to particular hazards. The declarant might be lying; he might have misperceived the events which he relates; he might have faulty memory; his words might be misunderstood or taken out of context by the listener. And the ways in which these dangers are minimized for in-court statements — the oath, the witness’ awareness of the gravity of the proceedings, the jury’s ability to observe the witness’ demeanor, and, most importantly, the right of the opponent to cross-examine — are generally absent for things said out of court.

Nonetheless, the Federal Rules of Evidence also recognize that some kinds of out-of-court statements are less subject to these hearsay dangers, and therefore except them from the general rule that hearsay is inadmissible. One such category covers statements that are against the declarant’s interest:

“statement^] which ... at the time of [their] making ... so far tended to subject the declarant to . . . criminal liability . . . that a reasonable person in the declarant’s position would not have made the statement^] unless believing [them] to be true.” Fed. Rule Evid. 804(b)(3).

To decide whether Harris’ confession is made admissible by Rule 804(b)(3), we must first determine what the Rule means by “statement,” which Federal Rule of Evidence 801(a)(1) defines as “an oral or written assertion.” One possible meaning, “a report or narrative,” Webster’s Third New International Dictionary 2229, defh. 2(a) (1961), connotes an extended declaration. Under this reading, Harris’ entire confession — even if it contains both self-inculpatory and non-self-incúlpatory parts — would be admissible so long as in the aggregate the confession sufficiently inculpates him. Another meaning of “statement,” “a single declaration or remark,” ibid., defh. 2(b), would make Rule 804(b)(3) cover only those declarations or remarks within the confession that are individually self-inculpatory. See also id., at 131 (defining “assertion” as a “declaration”); id., at 586 (defining “declaration” as a “statement”).

Although the text of the Rule does not directly resolve the matter, the principle behind the Rule, so far as it is discernible from the text, points clearly to the narrower reading. Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true. This notion simply does not extend to the broader definition of “statement.” The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-self-inculpatory parts. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.

In this respect, it is telling that the non-self-inculpatory things Harris said in his first statement actually proved to be false, as Harris himself admitted during the second interrogation. And when part of the confession is actually self-exculpatory, the generalization on which Rule 804(b)(3) is founded becomes even less applicable. Self-exculpatory statements are exactly the ones which people are most likely to make even when they are false; and mere proximity to other, self-inculpatory, statements does not increase the plausibility of the self-exculpatory statements.

We therefore cannot agree with Justice Kennedy’s suggestion that the Rule can be read as expressing a policy that collateral statements — even ones that are not in any way against the declarant’s interest — are admissible, post, at 614. Nothing in the text of Rule 804(b)(3) or the general theory of the hearsay Rules suggests that admissibility should turn on whether a statement is collateral to a self-inculpatory statement. The fact that a statement is self-inculpatory does make it more reliable; but the fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement’s reliability. We see no reason why collateral statements, even ones that are neutral as to interest, post, at 617-619 (Kennedy, J., concurring in judgment), should be treated any differently from other hearsay statements that are generally excluded.

Congress certainly could, subject to the constraints of the Confrontation Clause, make statements admissible based on their proximity to self-inculpatory statements. But we will not lightly assume that the ambiguous language means anything so inconsistent with the Rule’s underlying theory. See Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 394-395, 408-409 (1990). In our view, the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-selfinculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. The district court may not just assume for purposes of Rule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession, and this is especially true when the statement implicates someone else. “[T]he arrest statements of a codefendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.” Lee v. Illinois, 476 U. S. 530, 541 (1986) (internal quotation marks omitted); see also Bruton v. United States, 391 U. S. 123, 136 (1968); Dutton v. Evans, 400 U. S. 74, 98 (1970) (Harlan, J., concurring in result).

Justice Kennedy suggests that the Advisory Committee’s Notes to Rule 804(b)(3) should be read as endorsing the position we reject — that an entire narrative, including non-self-inculpatory parts (but excluding the clearly self-serving parts, post, at 620), may be admissible if it is in the aggregate self-inculpatory. See post, at 614-615. The Notes read, in relevant part:

“[T]he third-party confession . . . may include statements implicating [the accused], and under the general theory of declarations against interest they would be admissible as related statements----[Douglas v. Alabama, 380 U. S. 415 (1965), and Bruton v. United States, 391 U. S. 123 (1968),]... by no means require that all statements implicating another person be excluded from the category of declarations against interest. Whether a statement is in fact against interest must be determined from the circumstances of each case. Thus a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest. ... On the other hand, the same words spoken under different circumstances, e. g., to an acquaintance, would have no difficulty in qualifying....
“The balancing of self-serving against dissenting [sic] aspects of a declaration is discussed in McCormick § 256.” 28 U. S. C. App., p. 790.

This language, however, is not particularly clear, and some of it — especially the Advisory Committee’s endorsement of the position taken by Dean McCormick’s treatise — points the other way:

“A certain latitude as to contextual statements, neutral as to interest, giving meaning to the declaration against interest seems defensible, but bringing in self-serving statements contextually seems questionable.
“.. . [A]dmit[ting] the disserving parts of the declaration, and excluding] the self-serving parts . . . seems the most realistic method of adjusting admissibility to trustworthiness, where the serving and disserving parts can be severed.” See C. McCormick, Law of Evidence § 256, pp. 552-553 (1954) (footnotes omitted).

Without deciding exactly how much weight to give the Notes in this particular situation, compare Schiavone v. Fortune, 477 U. S. 21, 31 (1986) (Notes are to be given some weight), with Green v. Bock Laundry Machine Co., 490 U. S. 504, 528 (1989) (Scalia, J., concurring in judgment) (Notes ought to be given no weight), we conclude that the policy expressed in the Rule’s text points clearly enough in one direction that it outweighs whatever force the Notes may have. And though Justice Kennedy believes that the text can fairly be read as expressing a policy of admitting collateral statements, post, at 614, for the reasons given above we disagree.

B

We also do not share Justice Kennedy’s fears that our reading of the Rule “eviscerate[s] the against penal interest exception,” post, at 616 (internal quotation marks omitted), or makes it lack “meaningful effect,” ibid. There are many circumstances in which Rule 804(b)(3) does allow the admission of statements that inculpate a criminal defendant. Even the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor.

For instance, a declarant’s squarely self-inculpatory confession — “yes, I killed X” — will likely be admissible under Rule 804(b)(3) against accomplices of his who are being tried under a co-conspirator liability theory. See Pinkerton v. United States, 328 U. S. 640, 647 (1946). Likewise, by showing that the declarant knew something, a self-inculpatory statement can in some situations help the jury infer that his confederates knew it as well. And when seen with other evidence, an accomplice’s self-inculpatory statement can inculpate the defendant directly: “I was robbing the bank on Friday morning,” coupled with someone’s testimony that the declarant and the defendant drove off together Friday morning, is evidence that the defendant also participated in the robbery.

Moreover, whether a statement is self-inculpatory or not can only be determined by viewing it in context. Even statements that are on their face neutral may actually be against the declarant’s interest. “I hid the gun in Joe’s apartment” may not be a confession of a crime; but if it is likely to help the police find the murder weapon, then it is certainly self-inculpatory. “Sam and I went to Joe’s house” might be against the declarant’s interest if a reasonable person in the declarant’s shoes would realize that being linked to Joe and Sam would implicate the declarant in Joe and Sam’s conspiracy. And other statements that give the police significant details about the crime may also, depending on the situation, be against the declarant’s interest. The question under Rule 804(b)(3) is always whether the statement was sufficiently against the declarant’s penal interest “that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true,” and this question can only be answered in light of all the surrounding circumstances.

C

In this case, however, we cannot conclude that all that Harris said was properly admitted. Some of Harris’ confession would clearly have been admissible under Rule 804(b)(3); for instance, when he said he knew there was cocaine in the suitcase, he essentially forfeited his only possible defense to a charge of cocaine possession, lack of knowledge. But other parts of his confession, especially the parts that implicated Williamson, did little to subject Harris himself to criminal liability. A reasonable person in Harris’ position might even think that implicating someone else would decrease his practical exposure to criminal liability, at least so far as sentencing goes. Small fish in a big conspiracy often get shorter sentences than people who are running the whole show, see, e. g., United States Sentencing Commission, Guidelines Manual §3B1.2 (Nov. 1993), especially if the small fish are willing to help the authorities catch the big ones, see, e. g., id., § 5K1.1.

Nothing in the record shows that the District Court or the Court of Appeals inquired whether each of the statements in Harris’ confession was truly self-inculpatory. As we explained above, this can be a fact-intensive inquiry, which would require careful examination of all the circumstances surrounding the criminal activity involved; we therefore remand to the Court of Appeals to conduct this inquiry in the first instance.

In light of this disposition, we need not address Williamson’s claim that the statements were also made inadmissible by the Confrontation Clause, see generally White v. Illinois, 502 U. S. 346 (1992), and in particular we need not decide whether the hearsay exception for declarations against interest is “firmly rooted” for Confrontation Clause purposes. Compare, e. g., United States v. Seeley, 892 F. 2d 1, 2 (CA1 1989) (holding that the exception is firmly rooted), with United States v. Flores, 985 F. 2d 770 (CA5 1993) (holding the contrary). We note, however, that the very fact that a statement is genuinely self-inculpatory — which our reading of Rule 804(b)(3) requires — is itself one of the “particularized guarantees of trustworthiness” that makes a statement admissible under the Confrontation Clause. See Lee v. Illinois, 476 U. S. 530, 543-545 (1986). We also need not decide whether, as some Courts of Appeals have held, the second sentence of Rule 804(b)(3) — “A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement” (emphasis added) — also requires that statements inculpating the accused be supported by corroborating circumstances. See, e. g., United States v. Alvarez, 584 F. 2d 694, 701 (CA5 1978); United States v. Taggart, 944 F. 2d 837, 840 (CA11 1991). The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings.

So ordered.

Justice Scalia,

concurring.

I join the Court’s opinion, which I do not understand to require the simplistic view of statements against penal interest that Justice Kennedy attributes to it.

When analyzing whether evidence can be admitted under the statement-against-penal-interest exception to the hearsay rules, the relevant inquiry must always be, as the text directs, whether the statement “at the time of its making... so far tended to subject the declarant to ... criminal liability ... that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” Fed. Rule Evid. 804(b)(3). I quite agree with the Court that a reading of the term “statement” to connote an extended declaration (and which would thereby allow both self-inculpatory and non-self-inculpatory parts of a declaration to be admitted so long as the declaration in the aggregate was sufficiently inculpatory) is unsupportable. See ante, at 599-600.

Employing the narrower definition of “statement,” so that Rule 804(b)(3) allows admission of only those remarks that are individually self-inculpatory, does not, as Justice Kennedy states, “eviscerate the against penal interest exception.” Post, at 616 (internal quotation marks and citation omitted). A statement obviously can be self-inculpatory (in the sense of having so much of a tendency to subject one to criminal liability that a reasonable person would not make it without believing it to be true) without consisting of the confession “I committed X element of crime Y.” Consider, for example, a declarant who stated: “On Friday morning, I went into a gunshop and (lawfully) bought a particular type of handgun and particular type of ammunition. I then drove in my 1958 blue Edsel and parked in front of the First City Bank with the keys in the ignition and the driver’s door ajar. I then went inside, robbed the bank, and shot the security guard.” Although the declarant has not confessed to any element of a crime in the first two sentences, those statements in context are obviously against his penal interest, and I have no doubt that a trial judge could properly admit them.

Moreover, a declarant’s statement is not magically transformed from a statement against penal interest into one that is inadmissible merely because the declarant names another person or implicates a possible codefendant. For example, if a lieutenant in an organized crime operation described the inner workings of an extortion and protection racket, naming some of the other actors and thereby inculpating himself on racketeering and/or conspiracy charges, I have no doubt that some of those remarks could be admitted as statements against penal interest. Of course, naming another person, if done, for example, in a context where the declarant is minimizing culpability or criminal exposure, can bear on whether the statement meets the Rule 804(b)(3) standard. The relevant inquiry, however — and one that is not furthered by clouding the waters with manufactured categories such as “collateral neutral” and “collateral self-serving,” see, e. g., post, at 612, 618 (Kennedy, J., concurring in judgment)— must always be whether the particular remark at issue (and not the extended narrative) meets the standard set forth in the Rule.

Justice Ginsburg,

with whom Justice Blackmun, Justice Stevens, and Justice Souter join, concurring in part and concurring in the judgment.

I join Parts I, II-A, and II-B of the Court’s opinion. I agree with the Court that Federal Rule of Evidence 804(b)(3) excepts from the general rulé that hearsay statements are inadmissible only “those declarations or remarks within [a narrative] that are individually self-inculpatory.” Ante, at 599. As the Court explains, the exception for statements against penal interest “does not allow admission of non-selfinculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory,” ante, at 600-601; the exception applies only to statements that are “sufficiently against the declarant’s penal interest That a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.’” Ante, at 603-604, quoting Fed. Rule Evid. 804(b)(3).

Further, the Court recognizes the untrustworthiness of statements implicating another person. Ante, at 601. A person arrested in incriminating circumstances has a strong incentive to shift blame or downplay his own role in comparison with that of others, in hopes of receiving a shorter sentence and leniency in exchange for cooperation. For this reason, hearsay accounts of a suspect’s statements implicating another person have been held inadmissible under the Confrontation Clause. See Lee v. Illinois, 476 U. S. 530, 541 (1986) (“when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination”); ibid. (“ ‘[T]he arrest statements of a codefendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.’”) (quoting Bruton v. United States, 391 U. S. 123, 141 (1968) (White, J., dissenting)).

Unlike Justice O’Connor, however, I conclude that Reginald Harris’ statements, as recounted by Drug Enforcement Administration (DEA) Special Agent Donald E. Walton, do not fit, even in part, within the exception described in Rule 804(b)(3), for Harris’ arguably inculpatory statements are too closely intertwined with his self-serving declarations to be ranked as trustworthy. Harris was caught redhanded with 19 kilos of cocaine — enough to subject even a first-time offender to a minimum of 12V2 years’ imprisonment. See United States Sentencing Commission, Guidelines Manual §2Dl.l(c) (1993); id., ch. 5, pt. A (sentencing table). He could have denied knowing the drugs were in the car’s trunk, but that strategy would have brought little prospect of thwarting a criminal prosecution. He therefore admitted involvement, but did so in a way that minimized his own role and shifted blame to petitioner Fredel Williamson (and a Cuban man named Shawn).

Most of Harris’ statements to DEA Agent Walton focused on Williamson’s, rather than Harris’, conduct. Agent Walton testified to the following: During a brief telephone conversation shortly after he was apprehended, Harris said he had obtained 19 kilos of cocaine for Williamson from a Cuban man in Fort Lauderdale, Florida; he stated that the cocaine belonged to Williamson, and was to be delivered to a dumpster in the Atlanta area that evening. App. 37. Harris repeated this story to Agent Walton when the two spoke in person later in the day. Harris also said that he had rented the car a few days earlier and had included Williamson’s name on the rental contract because Williamson was going to be in the Fort Lauderdale area with him. Id., at 38-39. After Agent Walton sought to arrange a controlled delivery, Harris retracted the story about the dumpster, saying it was false.

Harris’ second account differed as to collateral details, but he continued to paint Williamson as the “big fish.” Harris reported that he was transporting the cocaine to Atlanta for Williamson. When the police stopped Harris’ car, Williamson was driving in front of him in another rented car. After Harris was stopped, Williamson turned around and pulled over to the side of the road; from that vantage point, he observed the police officer inspecting the contents of Harris’ trunk. Id., at 40-41. And, Harris repeated, “the arrangements for the acquisition and the transportation had been made by Mr. Williamson.” Id., at 41.

To the extent some of these statements tended to incriminate Harris, they provided only marginal or cumulative evidence of his guilt. They project an image of a person acting not against his penal interest, but striving mightily to shift principal responsibility to someone else. See United States v. Sarmiento-Perez, 633 F. 2d 1092, 1102 (CA5 1981) (“[The declarant] might well have been motivated to misrepresent the role of others in the criminal enterprise, and might well have viewed the statements] as a whole — including the ostensibly disserving portions — to be in his interest rather than against it.”).

For these reasons, I would hold that none of Harris’ hearsay statements were admissible under Rule 804(b)(3). The trial judge characterized Agent Walton’s testimony as “very damning.” App. 50. The prosecutor considered it so prejudicial that she offered to join defense counsel’s motion for a mistrial should the trial court determine that the hearsay statements had been erroneously admitted. Id., at 51 (“If the [trial] Court determines that it has been improper for [Agent Walton] to say those statements, then the Court must of necessity declare a mistrial, because there is no way they can remove what . . . they have heard that Reginald Harris said about Fredel Williamson, and the Government will join in the [defense counsel’s] motion [for a mistrial], because I think that would be a burden no one could overcome in the 11th Circuit.”). I concur in the Court’s decision to vacate the Court of Appeals’ judgment, however, because I have not examined the entire trial court record; I therefore cannot say the Government should be denied an opportunity to argue that the erroneous admission of the hearsay statements, in light of the other evidence introduced at trial, constituted harmless error. See Fed. Rule Crim. Proc. 52(a); Kotteakos v. United States, 328 U. S. 750, 776 (1946) (error requires reversal of criminal conviction if it is “highly probable that the error had substantial and injurious effect or influence in determining the jury’s verdict”).

Justice Kennedy, with whom The Chief Justice and Justice Thomas join, concurring in the judgment.

I

Federal Rule of Evidence 802 states the general rule that hearsay evidence is inadmissible in federal court proceedings, but there are numerous exceptions. At issue here is the exception contained in Rule 804(b)(3), which allows admission of

“[a] statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

The rationale of the hearsay exception for statements against interest is that people seldom “make statements which are damaging to themselves unless satisfied for good reason that they are true.” Advisory Committee’s Notes on Fed. Rule Evid. 804, 28 U. S. C. App., p. 789. Of course, the declarant may make his statement against interest (such as “I shot the bank teller”) together with collateral but related declarations (such as “John Doe drove the getaway car”). The admissibility of those collateral statements under Rule 804(b)(3) is the issue we must decide here.

There has been a long-running debate among commentators over the admissibility of collateral statements. Dean Wigmore took the strongest position in favor of admissibility, arguing that “the statement may be accepted, not merely as to the specific fact against interest, but also as to every fact contained in the same statement.” 5 J. Wigmore, Evidence § 1465, p. 271 (3d ed. 1940) (emphasis deleted); see also 5 J. Wigmore, Evidence § 1465, p. 339 (J. Chadbourne rev. 1974); Higham v. Ridgway, 10 East. 109, 103 Eng. Rep. 717 (K. B. 1808). According to Wigmore, because “the statement is made under circumstances fairly indicating the declarant’s sincerity and accuracy,” the entire statement should be admitted. 5 J. Wigmore § 1465, p. 271 (3d ed. 1940). Dean McCormick’s approach regarding collateral statements was more guarded. He argued for the admissibility of collateral statements of a neutral character, and for the exclusion of collateral statements of a self-serving character. For example, in the statement “John and I robbed the bank,” the words “John and” are neutral (save for the possibility of conspiracy charges). On the other hand, the statement “John, not I, shot the bank teller” is to some extent self-serving and therefore might be inadmissible. See C. McCormick, Law of Evidence § 256, pp. 552-553 (1954) (hereinafter McCormick). Professor Jefferson took the narrowest approach, arguing that the reliability of a statement against interest stems only from the disserving fact stated and so should be confined “to the proof of the fact which is against interest.” Jefferson, Declarations Against Interest: An Exception to the Hearsay Rule, 58 Harv. L. Rev. 1, 62-63 (1944). Under the Jefferson approach, neither collateral neutral nor collateral self-serving statements would be admissible.

Enacted by Congress in 1975, Rule 804(b)(3) establishes a hearsay exception for statements against penal, proprietary, pecuniary, and legal interest (and does not distinguish among those interests). The text of the Rule does not tell us whether collateral statements are admissible, however. See ante, at 599; see also Comment, Federal Rule of Evidence 804(b)(3) and Inculpatory Statements Against Penal Interest, 66 Calif. L. Rev. 1189, 1202 (1978) (“The text of Rule 804(b)(3) by itself provides little guidance and would accommodate comfortably either a doctrine excluding or one admitting collateral statements”). The Court resolves the issue, as I understand its opinion, by adopting the extreme position that no collateral statements are admissible under Rule 804(b)(3). See ante, at 599 (adopting “narrower reading” that “Rule 804(b)(3) cover[s] only those declarations or remarks within the confession that are individually self-inculpatory”); ante, at 607 (Ginsburg, J., concurring in part and concurring in judgment); but cf. ante, p. 605 (Scalia, J., concurring). The Court reaches that conclusion by relying on the “principle behind the Rule” that reasonable people do not make statements against their interest unless they are telling the truth, ante, at 599, and reasons that this policy “expressed in the Rule’s text,” ante, at 602, “simply does not extend” to collateral statements, ante, at 599. Though conceding that Congress can “make statements admissible based on their proximity to self-inculpatory statements,” the Court says that it cannot “lightly assume that the ambiguous language means anything so inconsistent with the Rule’s underlying theory.” Ante, at 600.

With respect, I must disagree with this analysis. All agree that the justification for admission of hearsay statements against interest was, as it still is, that reasonable people do not make those statements unless believing them to be true, but that has not resolved the long-running debate over the admissibility of collateral statements, as to which there is no clear consensus in the authorities. Indeed, to the extent the authorities come close to any consensus, they support admission of some collateral statements. See supra, at 611-612. Given that the underlying principle for the hearsay exception has not resolved the debate over collateral statements one way or the other, I submit that we should not assume that the text of Rule 804(b)(3), which is silent about collateral statements, in fact incorporates one of the competing positions. The Rule’s silence no more incorporates Jefferson’s position respecting collateral statements than it does McCormick’s or Wigmore’s.

II

Because the text of Rule 804(b)(3) expresses no position regarding the admissibility of collateral statements, we must determine whether there are other authoritative guides on the question. In my view, three sources demonstrate that Rule 804(b)(3) allows the admission of some collateral statements: the Advisory Committee’s Note, the common law of the hearsay exception for statements against interest, and the general presumption that Congress does not enact statutes that have almost no effect.

First, the Advisory Committee’s Note establishes that some collateral statements are admissible. In fact, it refers in specific terms to the issue we here confront: “Ordinarily the third-party confession is thought of in terms of exculpating the accused, but this is by no means always or necessarily the case: it may include statements implicating him, and under the general theory of declarations against interest they would be admissible as related statements.” 28 U. S. C. App., p. 790. This language seems a forthright statement that collateral statements are admissible under Rule 804(b)(3), but the Court reasons that “the policy expressed in the Rule’s text points clearly enough in one direction that it outweighs whatever force the Notes may have.” Ante, at 602. Again, however, that reasoning begs the question: What is the policy expressed in the text on the admissibility of collateral statements? As stated above, the text of the Rule does not answer the question whether collateral statements are admissible. When as here the text of a Rule of Evidence does not answer a question that must be answered in order to apply the Rule, and when the Advisory Committee’s Note does answer the question, our practice indicates that we should pay attention to the Advisory Committee’s Note. We have referred often to those Notes in interpreting the Rules of Evidence, and I see no reason to jettison that well-established practice here. See Huddleston v. United States, 485 U. S. 681, 688 (1988); United States v. Owens, 484 U. S. 554, 562 (1988); Bourjaily v. United States, 483 U. S. 171, 179, n. 2 (1987); United States v. Abel, 469 U. S. 45, 51 (1984).

Second, even if the Advisory Committee’s Note were silent about collateral statements, I would not adopt a rule excluding all statements collateral or related to the specific words against penal interest. Absent contrary indications, we can presume that Congress intended the principles and terms used in the Federal Rules of Evidence to be applied as they were at common law. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 588 (1993); Green v. Bock Laundry Machine Co., 490 U. S. 504, 521-522 (1989); United States v. Abel, supra, at 51-52; see also Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494, 501 (1986) (“[I]f Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific”). Application of that interpretive principle indicates that collateral statements should be admissible. “From the very beginning of this exception, it has been held that a declaration against interest is admissible, not only to prove the disserving fact stated, but also to prove other facts contained in collateral statements connected with the disserving statement.” Jefferson, 58 Harv. L. Rev., at 57; see also McCormick §256; 5 J. Wigmore, Evidence § 1465 (3d ed. 1940). Indeed, the Advisory Committee’s Note itself, in stating that collateral statements would be admissible, referred to the “general theory” that related statements are admissible, an indication of the state of the law at the time the Rule was enacted. Rule 804(b)(3) does not address the issue, but Congress legislated against the common-law background allowing admission of some collateral statements, and I would not assume that Congress gave the common-law rule a silent burial in Rule 804(b)(3).

There is yet a third reason weighing against the Court’s interpretation, one specific to statements against penal interest that inculpate the accused. There is no dispute that the text of Rule 804(b)(3) contemplates the admission of those particular statements. Absent a textual direction to the contrary, therefore, we should assume that Congress intended the penal interest exception for inculpatory statements to have some meaningful effect. See American Paper Institute, Inc. v. American Elec. Power Service Corp., 461 U. S. 402, 421 (1983) (court should not “imput[e] to Congress a purpose to paralyze with one hand what it sought to promote with the other”) (internal quotation marks omitted). That counsels against adopting a rule excluding collateral statements. As commentators have recognized, “the exclusion of collateral statements would cause the exclusion of almost all inculpatory statements.” Comment, 66 Calif. L. Rev., at 1207; see also Note, Inculpatory Statements Against Penal Interest and the Confrontation Clause, 83 Colum. L. Rev. 159, 163 (1983) (“[M]ost statements inculpating a defendant are only collateral to the portion of the declarant’s statement that is against his own penal interest. The portion of the statement that specifically implicates the defendant is rarely directly counter to the declarant’s penal interest”) (footnote omitted); Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv. L. Rev. 1378, 1396 (1972) (“[T]he naming of another as a compatriot will almost. never be against the declarant’s own interest”). Indeed, as one commentator indicated, the conclusion that no collateral statements are admissible — the conclusion reached by the Court today — would “eviscerate the against penal interest exception.” Comment, 66 Calif. L. Rev., at 1213.

To be sure, under the approach adopted by the Court, there are some situations where the Rule would still apply. For example, if the declarant said that he stole certain goods, the statement could be admitted in a prosecution of the accused for receipt of stolen goods in order to show that the goods were stolen. See 4 J. Weinstein & M. Berger, Weinstein’s Evidence § 804(b)(3)[04], p. 804-164 (1993); see also ante, at 603. But as the commentators have recognized, it is likely to be the rare case where the precise self-inculpatory words of the declarant, without more, also inculpate the defendant. I would not presume that Congress intended the penal interest exception to the Rule to have so little effect with respect to statements that inculpate the accused.

I note finally that the Court’s decision applies to statements against penal interest that exculpate the accused as well as to those that inculpate the accused. Thus, if the declarant said, “I robbed the store alone,” only the portion of the statement in which the declarant said “I robbed the store” could be introduced by a criminal defendant on trial for the robbery. See Note, Declarations Against Penal Interest: Standards of Admissibility Under an Emerging Majority Rule, 56 B. U. L. Rev. 148, 165, n. 95 (1976). That seems extraordinary. The Court gives no justification for such a rule and no explanation that Congress intended the exception for exculpatory statements to have this limited effect. See id., at 166 (“A strict application of a rule excluding all collateral statements can lead to the arbitrary rejection of valuable evidence”).

Ill

Though I would conclude that Rule 804(b)(3) allows admission of statements collateral to the precise words against interest, that conclusion of course does not answer the remaining question whether all collateral statements related to the statement against interest are admissible; and if not, what limiting principles should apply. The Advisory Committee’s Note suggests that not all collateral statements are admissible. The Note refers, for example, to McCormick’s treatise, not to Wigmore’s, for guidance as to the “balancing of self-serving against dis[serving] aspects of a declaration.” 28 U. S. C. App., p. 790. As noted supra, at 611-612, Wigmore’s approach would allow the admission of “every fact contained in the same statement,” but McCormick’s approach is not so expansive. McCormick stated that “[a] certain latitude as to contextual [i e., collateral] statements, neutral as to interest, giving meaning to the declaration against interest seems defensible, but bringing in self-serving statements contextually seems questionable.” McCormick § 256, p. 552. McCormick further stated that, within a declaration containing self-serving and disserving facts, he would “admit the dis-serving parts of the declaration, and exclude the self-serving parts” at least “where the serving and disserving parts can be severed.” Id., §256, at 553. It thus appears that the Advisory Committee’s Note, by its reference to (and apparent incorporation of) McCormick, contemplates exclusion of a collateral self-serving statement, but admission of a collateral neutral statement.

In the criminal context, a self-serving statement is one that tends to reduce the charges or mitigate the punishment for which the declarant might be liable. See M. Graham, Federal Practice and Procedure §6795, p. 810, n. 10 (1992). For example, if two masked gunmen robbed a bank and one of them shot and killed the bank teller, a statement by one robber that the other robber was the triggerman may be the kind of self-serving statement that should be inadmissible. See ibid, (collateral self-serving statement is “John used the gun”). (The Government concedes that such a statement may be inadmissible. See Brief for United States 12.) By contrast, when two or more people are capable of committing a crime and the declarant simply names the involved parties, that statement often is considered neutral, not self-serving. See Graham, supra, at 810, n. 10 (“[T]he statement ‘John and I robbed the bank’ is collateral neutral”); Note, 56 B. U. L. Rev., at 166, n. 96 (“An examination of the decisions reveals that, with very few exceptions, collateral facts offered as part of a declaration against penal interest are neutral rather than self-serving”); see generally United States v. York, 933 F. 2d 1343, 1362-1364 (CA7 1991); United States v. Casamento, 887 F. 2d 1141, 1171 (CA2 1989).

Apart from that limit on the admission of collateral, self-serving statements, there is a separate limit applicable to cases in which the declarant made his statement to authorities; this limit applies not only to collateral statements but also to the precise words against penal interest. A declarant may believe that a statement of guilt to authorities is in his interest to some extent, for example as a way to obtain more lenient treatment, or simply to clear his conscience. The Note takes account of that potentiality and states that courts should examine the circumstances of the statement to determine whether the statement was “motivated by a desire to curry favor with the authorities.” 28 U. S. C. App., p. 790. That appears consistent with McCormick’s recognition that “even though a declaration may be against interest in one respect, if it appears that the declarant had some other motive whether of self-interest or otherwise, which was likely to lead him to misrepresent the facts, the declaration will be excluded.” McCormick § 256, p. 553.

Of course, because the declarant is by definition unavailable, see Fed. Rule Evid. 804(a), and therefore cannot be questioned to determine the exact motivation for his statement, courts have been forced to devise categories to determine when this concern is sufficient to justify exclusion of a statement as unreliable. It has been held, for example, that a statement to authorities admitting guilt, made after an explicit promise of dropped charges or of a reduction in prison time in exchange for the admission of guilt, may be so unreliable as to be inadmissible. See, e. g., United States v. Magana-Olvera, 917 F. 2d 401, 407-409 (CA9 1990); United States v. Scopo, 861 F. 2d 339, 348 (CA2 1988) (“If ... a pleading defendant had an agreement with the government or with the court that he would not be punished for the crimes to which he allocuted, then that allocution would not subject him to criminal liability and would not constitute a statement against his penal interest”). At the other extreme, when there was no promise of leniency by the government and the declarant was told that he had a right to remain silent and that any statements he made could be used against him, the courts have not required exclusion of the declarant’s statement against interest. See id., at 348-349; United States v. Garcia, 897 F. 2d 1413, 1421 (CA7 1990) (declarant not motivated by desire to curry favor; “voluntarily made his statement after being advised of his Miranda rights and did not enter into any plea agreements with the government”). This kind of line-drawing is appropriate and necessary, lest the limiting principle regarding the declarant’s possible desire to obtain leniency lead to the exclusion of all statements against penal interest made to police, a result the Rule and Note do not contemplate.

In sum, I would adhere to the following approach with respect to statements against penal interest that inculpate the accused. A court first should determine whether the declarant made a statement that contained a fact against penal interest. See ante, at 604 (opinion of O’Connor, J.) (“Some of Harris’ confession would clearly have been admissible under Rule 804(b)(3)”). If so, the court should admit all statements related to the precise statement against penal interest, subject to two limits. Consistent with the Advisory Committee’s Note, the court should exclude a collateral statement that is so self-serving as to render it unreliable (if, for example, it shifts blame to someone else for a crime the defendant could have committed). In addition, in cases where the statement was made under circumstances where it is likely that the declarant had a significant motivation to obtain favorable treatment, as when the government made an explicit offer of leniency in exchange for the declarant’s admission of guilt, the entire statement should be inadmissible.

A ruling on the admissibility of evidence under Rule 804(b)(3) is a preliminary question to be determined by the district judge under Rule 104(a). That determination of necessity calls for an inquiry that depends to a large extent on the circumstances of a particular case. For this reason, application of the general principles here outlined to a particular narrative statement often will require a difficult, fact-bound determination. District judges, who are close to the facts and far better able to evaluate the various circumstances than an appellate court, therefore must be given wide discretion to examine a particular statement to determine whether all or part of it should be admitted. Like the Court, then, I would remand this case, but for application of the analysis set forth in this opinion.

      Of course, an accomplice’s statements may also be admissible under other provisions of Rules 801-804. For instance, statements made in furtherance of the conspiracy may be admissible under Rule 801(d)(2)(E), and other statements that bear circumstantial guarantees of trustworthiness may be admissible under Rule 804(b)(5), the catchall hearsay exception.

      Nor could any of Harris’ hearsay statements be admitted under Rule 801(d)(2)(E), which provides that statements made “by a coconspirator of a party during the course and in furtherance of the conspiracy” are not hearsay. The trial judge initially appeared to base his ruling admitting the statements on the co-conspirator rule. See App. 34-36; id., at 47 (“I let it in as a co-conspirator statement.”). The prosecutor, however, “agree[d] with [defense counsel] totally” that “[they are] not . . . statement[s] in furtherance of the conspiracy”; Agent Walton’s testimony, she explained, was “not offered under [the co-conspirator] exception,” but under Rule 804(b)(3). App. 47. I do not read the Court’s opinion, ante, at 604, n., to suggest that the hearsay statements in this case could have been admitted under Rule 801(d)(2)(E).