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F U R T H E R  P R O C E E D I N G S  10:00 a.m.

THIS CAUSE came on for further trial before The Honorable Franklin T.  Dupree, Jr., United States Chief District Judge, and a jury, on Monday, August 20, 1979, at Raleigh, North Carolina.

(The following proceedings were held in the presence of the jury and alternates.)

THE COURT:  Good morning, ladies and gentlemen.  Let me see Counsel at the Bench briefly.


B E N C H  C 0 N F E R E N C E

THE COURT:  Since court adjourned on Friday afternoon, I have spent a substantial portion of my waking hours researching and deciding the rather interesting evidentiary question which was posed, the question being whether statements tending to be against the penal interests of the witness Stoeckley should be admissible through other witnesses -- statements made outside of court in far distant times.
     In that connection, I have studied the transcript of the witnesses' testimony -- Stoeckley's and the six witnesses whose out-of-court statements are posed to be offered -- the briefs of both sides, and all of the case law -- relevant case law -- that I could find, which includes the Advance Sheet of the Federal Second, which came Sunday and which, oddly enough, contained a case involving 804(b)(3), but unhappily not directly in point.
     I will rule that these proposed statements do not comply with the trustworthy requisites of 804(b)(3) or (b)(5); that far from being clearly corroborated and trustworthy, that they are about as unclearly trustworthy -- or clearly untrustworthy, let me say -- as any statements that I have ever seen or heard.
     Chambers v. Mississippi, of course, is a far cry from this.  There we had an absolute confession by a person who was in his right mind, and various other distinguishing features.  On the question of impeachment, of course the prerequisite for a prior inconsistent statement is one that is, in fact, inconsistent.
     Weinstein has said that any statement is inconsistent if, under any rational theory it might lead to any relevant conclusion different from any other relevant conclusion resulting from anything the witness has said.  This witness, in her examination here in court -- and cross-examination -- has been, to use the Government Counsel's terminology, "all over the lot."
     The statements which she has made out of court were "all over the lot," so it can't really be said that the hearing of those statements would lead to any different conclusion than what the jurors got while she was here in open court.
     The case most nearly like this one that I was able to find and not cited by either side is United States v. Satterfield: in the 500 F.  2d 687, cert.  denied 99 Supreme Court 128.  That is a Ninth Circuit case from 1978.  That case, as many others do, including cases that were cited -- such as Thomas and Barrett and others -- states that this matter of determining trustworthiness is committed in the first instance to discretion of the Court.  In that case there was a finding of untrustworthiness by the District Court, although there were some factors in evidence which tended to substantiate the statements or lend credibility to them, and statements which were pointed in the opposite direction.
     As I stated, this testimony, I think, has no trustworthiness at all.  Here you have a girl who, when she made the statements, was in most instances heavily drugged, if not hallucinating.  And she has told us all that herself.  She has stated that in person.
     But I would get over the unavailability question.  I would get past that and, in some aspects of it, I think they could have been held to be against her penal interests.  But on the question of trustworthiness, I just can't see it.
     Now, on the question of impeachment, as I stated, I don't think it is admissible on that theory for the reason that I don't think it is impeaching.  There are other reasons which I won't elaborate on right now.
     Finally, I think that this evidence ought to be excluded as a matter of discretion by the Court under Rule 403, because its probative value is substantially outweighed by the danger of unfair prejudice.  It would tend to confuse the issues, mislead the jury.  It would cause undue delay and a waste of time.
     I am thinking now that I took a day of this jury's time and gave it to Counsel, most of which was taken by Counsel for the Defendant to interview Ms. Stoeckley, and to have her apparently interviewed in company with several of these six witnesses.  And anything that would come in by this way now would still be cumulative.
     She has told everything -- she told this jury everything that you proposed to show by these witnesses that she told them.  So I t