State v. Graham (Concurrence)

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              STATE v. GRAHAM—CONCURRENCE

   ECKER, J., with whom D’AURIA, J., joins, concurring.
I agree without reservation in all respects with the well
reasoned majority opinion, except for part I A, as to
which I concur in the judgment only. With respect to
part I A, I am constrained to agree with the majority that
the hearsay statement of the defendant’s accomplice
properly was admitted into evidence as a statement
against penal interest under § 8-6 (4) of the Connecticut
Code of Evidence,1 pursuant to State v. Rivera, 268
Conn. 351, 844 A.2d 191 (2004). We held in Rivera that,
as a result of the felony murder rule, an accomplice’s
dual inculpatory hearsay statements2 that minimize the
declarant’s participation in the death of a victim none-
theless are ‘‘fully and equally’’ inculpatory and, thus, are
admissible as statements against penal interest because
the minimization is ‘‘limited to one type of murder ver-
sus another type of murder.’’ (Internal quotation marks
omitted.) Id., 368. The defendant, James Graham, has
not asked us to overrule Rivera, and, therefore, we are
bound to apply its holding to the facts of the present
case. I write separately to explain why, in my view, we
may wish to reconsider this portion of our holding in
Rivera in a future case.
   The majority opinion accurately sets forth the rele-
vant facts pertaining to the out-of-court statement of the
defendant’s accomplice, Robert Moye. Approximately
one week after the murder of the victim, Leandre Ben-
ton, Moye allegedly confessed his involvement in the
underlying criminal activity to his friend, Steven Capers.
Moye explained to Capers that he was walking along
a biking and walking trail in Hamden with the defendant
and Brennan Coleman when the three men decided to
rob the victim. According to Moye, the victim punched
Coleman in the face, and the defendant shot the victim
with a .38 caliber pistol. Moye was unavailable to testify
at trial, and the trial court admitted Capers’ testimony
regarding Moye’s out-of-court statement under the
statement against penal interest exception to the hear-
say rule. See Conn. Code Evid. § 8-6 (4).
   The issue on appeal is whether Moye’s out-of-court
statement properly was admitted under § 8-6 (4) of the
Connecticut Code of Evidence, even though a portion
of Moye’s statement blamed the defendant for the mur-
der of the victim. It is clear that Moye’s statement is
hearsay because it is an out-of-court statement admitted
for the truth of the matter asserted. It is also clear that
a portion of Moye’s statement was against his penal
interest because it implicated him in the commission or
attempted commission of a robbery. The more difficult
question is whether Moye’s statement identifying the
defendant as the individual who shot and killed the
victim also was a statement against Moye’s own penal
interest. The majority concludes that it was because
Moye ‘‘admitted his participation in a robbery that gave
rise to a homicide and exposed himself to the possibility
of a charge of felony murder. See General Statutes § 53a-
54c.’’ Part I A of the majority opinion. To arrive at
this conclusion, the majority relies principally on this
court’s decision in Rivera.
   The majority accurately describes the holding in
Rivera and its significance in relation to the present
case. In Rivera, the out-of-court declarant, Michael
Glanville, allegedly confessed to his nephew that he
was involved in the crimes with which the defendant,
Anthony Rivera, had been charged—felony murder, bur-
glary, arson, and tampering with evidence. See State
v. Rivera, supra, 268 Conn. 352–54, 357. According to
Glanville, he and Rivera broke into the victim’s home
in search of jewelry, and ‘‘Glanville . . . remained in
the kitchen as a lookout as [Rivera] went through the
house.’’ Id., 359. When the victim found Glanville in the
kitchen, Glanville ‘‘covered his face’’ and ‘‘ran out of
the house,’’ while Rivera ‘‘chok[ed] the victim’’ and
‘‘picked up [an oil] lamp . . . .’’ Id. On appeal, Rivera
claimed that Glanville’s out-of-court statement improp-
erly was admitted into evidence as a statement against
penal interest because ‘‘Glanville’s statement . . .
attempts to shift the blame from Glanville to [Rivera]
and to minimize Glanville’s own criminal involvement
in the events.’’ State v. Rivera, Conn. Supreme Court
Briefs & Appendices, November Term, 2003, Defen-
dant’s Brief p. 23. To support his claim, Rivera relied
in part on Williamson v. United States, 512 U.S. 594,
114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994), in which
the United States Supreme Court held that the federal
analogue to § 8-6 (4) of the Connecticut Code of Evi-
dence, namely, rule 804 (b) (3) of the Federal Rules
of Evidence,3 ‘‘does not allow admission of non-self-
inculpatory statements, even if they are made within a
broader narrative that is generally self-inculpatory. . . .
[Courts] may not just assume for purposes of [r]ule 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.’’ Id., 600–
601.
   We rejected Rivera’s claim, holding that Glanville’s
‘‘statement was squarely against [his] penal interest.
Glanville admitted his participation in a burglary that
had given rise to a homicide . . . and thus exposed
himself to the possibility of a charge of felony murder.
. . . [E]ven if Glanville’s statement had attempted to
minimize his participation in the homicide, the minimi-
zation would have been limited to one type of murder
versus another type of murder. The statement further
implicated Glanville as a principal in the crime of bur-
glary, and an accomplice in the crimes of arson and
tampering with evidence. Therefore, Glanville’s state-
ment exposed him to potential liability for the same
types of crimes with which [Rivera had] been charged
and, accordingly, the statement fully and equally impli-
cated both Glanville and [Rivera].’’ (Footnote omitted;
internal quotation marks omitted.) State v. Rivera,
supra, 268 Conn. 368. We also rejected Rivera’s claim
‘‘that the trial court improperly admitted Glanville’s
entire statement, instead of only the portions [in which]
Glanville implicated himself,’’ because, ‘‘under our evi-
dentiary law, ‘[when] the disserving parts of a statement
are intertwined with self-serving parts, it is more pru-
dential to admit the entire statement and [to] let the
trier of fact assess its evidentiary quality in the complete
context.’ State v. Bryant, 202 Conn. 676, 696–97, 523
A.2d 451 (1987). But see Williamson v. United States,
[supra, 512 U.S. 600–601] . . . .’’ State v. Rivera, supra,
371 n.18.4
   The defendant’s main brief does not acknowledge
our holding in Rivera or its precedential effect. In his
reply brief, the defendant makes a perfunctory effort to
distinguish Rivera on the ground that, unlike Glanville’s
statement in Rivera, Moye’s statement ‘‘did not fully
and equally implicate [Moye] in all of the crimes and,
thus, [was] not permissible.’’ I agree with the majority
that the present case is indistinguishable from Rivera
because ‘‘Moye’s statement was indeed inculpatory, as
it exposed him to potential criminal liability for the
same types of crimes with which the defendant was
charged.’’ Part I A of the majority opinion. Again, the
defendant has not asked us to overrule Rivera or its
conclusion that the felony murder rule renders an
accomplice’s out-of-court admission to a predicate fel-
ony enumerated in § 53a-54c ‘‘wholly inculpatory’’ for
purposes of § 8-6 (4) of the Connecticut Code of Evi-
dence, even if the accomplice’s out-of-court statement
accuses the defendant of being entirely responsible for
the death of the victim.
   Whatever one thinks of the ultimate conclusion in
Rivera, our analysis in that case did not involve a robust
or satisfactory evaluation of the admissibility of dual
inculpatory statements that shift the blame to a defen-
dant for the death of a victim in the context of the
felony murder rule. The felony murder rule ‘‘is one of
the most persistently and widely criticized features of
American criminal law’’; G. Binder, ‘‘The Origins of
American Felony Murder Rules,’’ 57 Stan. L. Rev. 59,
60 (2004); and its purpose is ‘‘to punish those whose
conduct brought about an unintended death in the com-
mission or attempted commission of a felony.’’ (Internal
quotation marks omitted.) State v. Kyles, 221 Conn.
643, 667, 607 A.2d 355 (1992).5 ‘‘The felony murder rule
includes accidental, unintended deaths’’; id.; and it
makes an accomplice to a felony equally as culpable
in the commission of a murder as the person who killed
the victim, so long as the victim was killed ‘‘in the
course of and in furtherance of’’ the underlying felony.
General Statutes § 53a-54c; see State v. Montgomery,
254 Conn. 694, 733, 759 A.2d 995 (2000) (‘‘[f]elony mur-
der occurs when, in the course of and in furtherance
of another crime, one of the participants in that crime
causes the death of a person who is not a participant
in the crime’’ (internal quotation marks omitted)). Thus,
the felony murder rule invokes the counterintuitive
principle that the participants to the underlying felony
are legally guilty—and equally so—for a murder that
any one of the participants may commit, even though
the actual killer has substantially greater moral culpabil-
ity. See People v. Patterson, 49 Cal. 3d 615, 621, 778
P.2d 549, 262 Cal. Rptr. 195 (1989) (felony murder rule
‘‘incorporates an artificial concept of strict criminal
liability that erodes the relationship between criminal
liability and moral culpability’’ (internal quotation
marks omitted)).
   In my view, the commonsense belief that the person
who killed the victim is more culpable than the person
who did not necessitates reconsideration of the legal
issue decided without any in-depth analysis in Rivera,
i.e., whether an accomplice’s out-of-court statement
identifying a codefendant as the perpetrator of a murder
committed during the course of a felony should be
treated as an inculpatory statement under § 8-6 (4) of
the Connecticut Code of Evidence.
   In order to explain my concern, it is necessary to
briefly review the statement against penal interest
exception to the hearsay rule in § 8-6 (4) of the Connect-
icut Code of Evidence and its underlying justification.
The hearsay rule generally bars the use of out-of-court
statements to prove the truth of the matter asserted—
in this case, Moye’s statement that the defendant shot
and killed the victim. See, e.g., State v. Saucier, 283
Conn. 207, 223, 926 A.2d 633 (2007); Conn. Code Evid.
§ 8-1 (3). In concise terms, hearsay is inadmissible
because the declarant cannot be cross-examined, thus
depriving the adverse party of any ability to test the
truth of the matter asserted using the greatest engine
for the discovery of truth ever invented.6 Without Moye
on the witness stand, the defendant cannot directly
challenge the veracity of his accusation.
  The hearsay exception for statements against penal
interest rests on the premise that such statements gen-
erally are trustworthy because people typically do not
make statements confessing to criminal conduct unless
those statements are true. See, e.g., State v. Bryant,
202 Conn. 676, 701, 523 A.2d 451 (1987) (‘‘the ultimate
question [under the statement against penal interest
exception is] whether a reasonable man in [the declar-
ant’s] position would not have made the statement[s]
unless he believed [them] to be true’’ (internal quotation
mark omitted)). As the United States Supreme Court
has explained, the exception ‘‘is founded on the com-
monsense notion that reasonable people, even reason-
able people who are not especially honest, tend not to
make self-inculpatory statements unless they believe
them to be true.’’ Williamson v. United States, supra,
512 U.S. 599; see Lilly v. Virginia, 527 U.S. 116, 126–27,
119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999) (‘‘[t]he exception
. . . is founded on the broad assumption that a person
is unlikely to fabricate a statement against his own
interest at the time it is made’’ (internal quotation marks
omitted)).
  It necessarily follows from this premise that the pre-
sumption of trustworthiness is warranted only if the
declarant makes the statement knowing that it is
against his penal interest. Although an accidental or
unknowing admission of wrongful conduct may or may
not be true, it will not contain the assurance of trustwor-
thiness that justifies the hearsay exception against
penal interest because the speaker is, by definition,
unaware of its self-injurious potential. This point is not
debatable as a matter of logic, but it creates a serious
difficulty in application because its enforcement would
require a showing of the declarant’s subjective state
of mind—actual knowledge that the admitted conduct
exposes the declarant to penal consequences—before
the statement could be deemed against the declarant’s
penal interest. See United States v. Lozado, 776 F.3d
1119, 1125 (10th Cir. 2015) (recognizing that, ‘‘[w]ithout
awareness that the statement could have adverse conse-
quences, the statement lacks circumstantial guarantees
of trustworthiness’’).
   As legal scholars have observed, an inquiry into the
declarant’s subjective state of mind is problematic in
this context due to the ‘‘[d]ifficulties of proof, probabili-
ties, and the unavailability of the declarant . . . .’’ 2 R.
Mosteller, McCormick on Evidence (8th Ed. 2020) § 319,
p. 577; see J. Cronan, ‘‘Do Statements Against Interest
Exist? A Critique of the Reliability of Federal Rule of
Evidence 804 (b) (3) and a Proposed Reformulation,’’
33 Seton Hall L. Rev. 1, 13 (2002) (recognizing that,
‘‘[b]ecause of the declarant’s unavailability, conclusive
proof of actual awareness is often impossible’’). Section
8-6 (4) of the Connecticut Code of Evidence, like its
federal counterpart, avoids this problem, at least in
part, by establishing an objective standard to determine
whether a statement is against a declarant’s penal inter-
est. Thus, under our rule (and the cognate federal rule),
the question is whether ‘‘a reasonable person in the
declarant’s position’’ would understand the statement
‘‘to subject the declarant to criminal liability . . . .’’
(Emphasis added.) Conn. Code Evid. § 8-6 (4); accord
Fed. R. Evid. 804 (b) (3) (A).
  And so we arrive at the difficult question that this
court answered, without examination or explanation,
in Rivera: would a reasonable person who confesses
to his participation in a robbery, but who states that
an accomplice shot and killed the target of the robbery,
have understood that he was exposing himself to crimi-
nal liability for the crime of felony murder? As applied
to the present case, the precise question is whether
Moye’s statement about the defendant’s shooting the
victim during the course of a robbery or attempted
robbery objectively would have been perceived by Moye
at the time the statement was made as a statement
against Moye’s own penal interest. If the answer is yes,
then the statement is inculpatory and admissible under
§ 8-6 (4) of the Connecticut Code of Evidence, provided
it otherwise was sufficiently trustworthy. See, e.g., State
v. Patel, 342 Conn. 445, 477, 270 A.3d 627 (2022) (‘‘[a]d-
mission of a hearsay statement pursuant to § 8-6 (4) of
the Connecticut Code of Evidence is subject to a binary
inquiry: (1) whether [the] statement . . . was against
[the declarant’s] penal interest and, if so, (2) whether
the statement was sufficiently trustworthy’’ (internal
quotation marks omitted)), petition for cert. filed (U.S.
August 18, 2022) (No. 22-155). If the answer is no, how-
ever, the statement is exculpatory and ‘‘presumptively
unreliable’’ because it was ‘‘offered to prove the guilt
of an accomplice of the declarant.’’ Id., 481; see id.
(recognizing that statements in which accomplice
attempts to ‘‘[shift] blame from himself to the defen-
dant’’ or ‘‘curry favor with the government’’ historically
have been viewed as ‘‘presumptively unreliable’’ and
inadmissible under statement against penal interest
exception to hearsay rule).
   In Rivera, we assumed that the answer to the afore-
mentioned question was ‘‘yes’’ and that the statement
was wholly inculpatory because, by operation of the
felony murder rule, a dual inculpatory statement regard-
ing the commission of a predicate felony during the
course of which an individual is killed necessarily impli-
cates both the accomplice/declarant and the perpetra-
tor/defendant ‘‘fully and equally’’ in the crime of felony
murder. State v. Rivera, supra, 268 Conn. 368. Our con-
clusion in Rivera may be correct, but I have serious
doubts, and, in my view, the holding warrants careful
reconsideration because Rivera itself contains no anal-
ysis. It is hardly obvious that a reasonable nonlawyer
who points the finger for a murder at an accomplice
to a robbery is aware of the ‘‘illogical’’7 workings of the
felony murder rule such that the statement qualifies as
one against the declarant’s own penal interest. As one
court has observed, whether a declarant in such circum-
stances would have ‘‘understood that his statement was
a confession to murder is not clear.’’ Smith v. State,
746 So. 2d 1162, 1168 (Fla. App. 1999), review denied,
767 So. 2d 461 (Fla. 2000). When a declarant admits
that he was guilty of a predicate felony but appears to
try ‘‘to absolve himself of criminal responsibility for [a]
murder,’’ the confession to the predicate felony oper-
ates as ‘‘a confession to the murder’’ as a matter of law,
but it is not apparent that the declarant ‘‘would . . .
have known that unless he understood the operation
of the felony murder rule at the time [the confession
was made].’’ Id. The declarant ‘‘may have been unaware
of the felony murder rule. If so, he would not be the
first defendant who unwittingly confessed to murder
thinking that he was admitting [to] only a less serious
offense.’’ Id. If ‘‘[t]he record does not disclose any fact or
circumstance to suggest that [the declarant] understood
the potential harm he caused to himself by making the
statement,’’ a court ‘‘cannot say with any confidence
that a reasonable person in his position would have
thought that the statement was true.’’ Id. Under such
circumstances, the out-of-court statement is inadmissi-
ble as a declaration against penal interest because it
does not ‘‘[tend] to subject the declarant to criminal
liability [such] that a reasonable person in the same
position would not have made the statement unless he
or she believed it to be true . . . .’’8 Id., 1167; see Conn.
Code Evid. § 8-6 (4).
   If some of a declarant’s out-of-court statements are
inculpatory and admissible as declarations against
penal interest, but other out-of-court statements are
exculpatory and inadmissible, this court would need to
address the issue that the majority leaves unresolved,
namely, whether to adopt the approach to dual inculpatory
statements of accomplices articulated by the United
States Supreme Court in Williamson v. United States,
supra, 512 U.S. 599–601. In that case, the court con-
strued the federal counterpart to § 8-6 (4) of the Con-
necticut Code of Evidence to prohibit the admission of
‘‘collateral statements’’ that are not ‘‘self-inculpatory
. . . .’’ Id., 600. The court explained that the animating
principle of the exception to the hearsay rule—that
people do not confess to crimes that they did not com-
mit—does not extend to collateral, exculpatory state-
ments: ‘‘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 be-
cause of its self-inculpatory nature.’’ Id., 599–600. The
court observed that ‘‘[s]elf-exculpatory statements are
exactly the ones [that] people are most likely to make
even when they are false; and mere proximity to other,
self-inculpatory statements does not increase the plau-
sibility of the self-exculpatory statements.’’ Id., 600.
Accordingly, the federal rule ‘‘does not allow admission
of non-self-inculpatory statements, even if they are made
within a broader narrative that is generally self-inculpa-
tory.’’ Id., 600–601. My research reveals that many states
interpret their own analogous statement against penal
interest hearsay exceptions in a similar manner. See,
Smith v. State, 647 A.2d 1083, 1088 (Del. 1994) (‘‘As
the [United States Supreme] Court in Williamson held,
there is no theoretical basis for the admission of neutral,
collateral statements. . . . Non-self-incriminatory
components of a declaration purportedly falling within
[rule] 804 (b) (3) [of the Delaware Rules of Evidence]
are presumptively inadmissible hearsay because they
cannot claim any special guarantees of reliability and
trustworthiness.’’ (Citations omitted; footnote omitted.));
Commonwealth v. Brown, 617 Pa. 107, 176–77, 52 A.3d
1139 (2012) (adopting Williamson approach and hold-
ing that ‘‘only the introduction of the portion or portions
of an out-of-court statement [that] are self-inculpatory
to the declarant’’ are admissible as statements against
penal interest); State v. Holmes, 342 S.C. 113, 118, 536
S.E. 2d 671 (2000) (‘‘non-self-inculpatory statements
made collateral to a self-inculpatory statement are inad-
missible’’ as statements against penal interest), cert.
denied, 532 U.S. 906, 121 S. Ct. 1230, 149 L. Ed. 2d 139
(2001); State v. Roberts, 142 Wn. 2d 471, 494–95, 14 P.3d
713 (2000) (adopting Williamson approach to admissi-
bility of declarations against penal interest and holding
that ‘‘[t]he ‘whole statement’ approach is . . . both
overbroad and underbroad’’).
  The defendant in the present case has not raised or
briefed these issues. Nor has he asked us to revisit our
conclusion in Rivera that the dual inculpatory state-
ment of an accomplice that shifts blame to a codefen-
dant is wholly inculpatory under the felony murder rule.
In the absence of full briefing and explication of these
complex legal questions, I leave their resolution for
another day. Accordingly, I concur in the judgment with
respect to part I A of the majority opinion.
   1
     Section 8-6 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule if the declarant
is unavailable as a witness . . . (4) A trustworthy statement against penal
interest that, 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 the person believed it to be true.
In determining the trustworthiness of a statement against penal interest,
the court shall consider (A) the time the statement was made and the
person to whom the statement was made, (B) the existence of corroborating
evidence in the case, and (C) the extent to which the statement was against
the declarant’s penal interest. . . .’’
   2
     ‘‘A dual inculpatory statement is a statement that inculpates both the
declarant and a third party, in this case the defendant.’’ (Internal quotation
marks omitted.) State v. Rivera, supra, 268 Conn. 361 n.12.
   3
     Rule 804 (b) of the Federal Rules of Evidence provides in relevant part:
‘‘The following are not excluded by the rule against hearsay if the declarant
is unavailable as a witness:
                                        ***
   (3) A statement that:
   (A) a reasonable person in the declarant’s position would have made only
if the person believed it to be true because, when made, it was so contrary
to the declarant’s proprietary or pecuniary interest or had so great a tendency
to invalidate the declarant’s claim against someone else or to expose the
declarant to civil or criminal liability; and
   (B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to expose
the declarant to criminal liability.’’
   As we observed in State v. Schiappa, 248 Conn. 132, 147, 728 A.2d 466,
cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999), ‘‘we
[have] expressly adopted the definition of statement against penal interest
contained in [rule] 804 (b) (3).’’
   4
     Rivera contains no explicit reference to Williamson other than this ‘‘But
see’’ citation and provides no analysis whatsoever of the United States
Supreme Court’s reasoning in Williamson. See State v. Rivera, supra, 268
Conn. 371 n.18.
   5
     Critics of the rule include the drafters of the Model Penal Code. See 2
A.L.I., Model Penal Code and Commentaries (1980) § 210.2, commentary,
p. 37 (noting that it is difficult to find ‘‘[p]rincipled argument in favor of the
[felony murder] doctrine’’). The criticism is often expressed in extreme and
colorful terms. ‘‘[I]t is said that the rule is, among other things, ‘[abhorrent],’
‘anachronistic,’ ‘barbaric,’ ‘injudicious and unprincipled,’ ‘parasitic,’ and a
‘modern monstrosity’ that ‘erodes the relationship between criminal liability
and moral culpability.’’ (Footnotes omitted.) J. Tomkovicz, ‘‘The Endurance
of the Felony-Murder Rule: A Study of the Forces That Shape Our Criminal
Law,’’ 51 Wash. & Lee L. Rev. 1429, 1441 (1994); see N. Roth & S. Sundby,
‘‘The Felony-Murder Rule: A Doctrine at Constitutional Crossroads,’’ 70
Cornell L. Rev. 446, 446 (1985) (‘‘[c]riticism of the rule constitutes a lexicon
of everything that scholars and jurists can find wrong with a legal doctrine:
it has been described as ‘astonishing’ and ‘monstrous,’ an unsupportable
‘legal fiction,’ ‘an unsightly wart on the skin of the criminal law,’ and as an
‘anachronistic remnant’ that has ‘no logical or practical basis for existence
in modern law’ ’’ (footnotes omitted)).
   To be clear, my point here has nothing to do with whether the felony
murder rule is worthy of criticism, and I express no view on the subject.
The issue is whether a rule that many commentators consider illogical
and unprincipled would nonetheless be known to a reasonable nonlawyer
declarant in Moye’s circumstances, whose statement identifies an accom-
plice as the murderer and, therefore, would qualify as a statement against
penal interest under § 8-6 (4) of the Connecticut Code of Evidence.
   6
     ‘‘In Bishop v. Copp, 96 Conn. 571, 575, 114 A. 682 (1921), Chief Justice
[George W.] Wheeler said: ‘The test of cross-examination is the highest and
most indispensable test known to the law for the discovery of truth.’ Wigm-
ore, speaking even more strongly, said that cross-examination ‘is beyond
any doubt the greatest legal engine ever invented for the discovery of truth.’
5 [J.] Wigmore, Evidence (Chadbourn Rev. 1974) § 1367, p. 32.’’ State v.
Dabkowski, 199 Conn. 193, 202, 506 A.2d 118 (1986).
   7
     See footnote 5 of this opinion.
   8
     It should be obvious that the familiar maxim that ignorance of the law
is no excuse has no application in the present context. The issue is not
whether ignorance of the law excuses the declarant’s criminal conduct but,
rather, whether the declarant’s statement should be considered trustworthy
because people usually do not knowingly confess to crimes unless they are
being truthful. If knowledge of illegality is presumed, then the entire premise
of the hearsay exception loses all force.