FSM v Jappan [2018] FMSC 41; 22 FSM R. 81 (Chk. 2018) (11 October 2018)

FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2018-1505

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

JAYSON JAPPAN and ANRETA FRET,
Defendants.
__________________________________________

ORDER REQUIRING REDACTION

Larry Wentworth
Associate Justice

Decided: October 11, 2018

APPEARANCES:

For the Plaintiff: Abigail Avoryie, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant (Jappan): Robert P. Nakasone, Esq.
Office of the Public Defender
P.O. Box 814
Weno, Chuuk FM 96942

For the Defendant (Fret): Bethwell O’Sonis, Esq.
Office of the Public Defender
P.O. Box 814
Weno, Chuuk FM 96942

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HEADNOTES

Criminal Law and Procedure - Interrogation and Confession
The court has consistently rejected the redaction-is-premature argument, and has repeatedly required the redaction before trial of any co-defendant’s statement that the prosecution intends to use at trial. FSM v. Jappan, 22 FSM R. 81, 83 (Chk. 2018).

Criminal Law and Procedure - Right to Confront Witnesses
The use of a non-testifying defendant’s statement as evidence against a co-defendant violates the co-defendant’s right to be confronted with the witnesses against him since the declarant is not a trial witness subject to the co-defendant’s cross-examination. This difficulty can be eliminated if the parties redact any co-defendant statements before trial. FSM v. Jappan, 22 FSM R. 81, 83 (Chk. 2018).

Criminal Law and Procedure - Interrogation and Confession; Search and Seizure - Probable Cause
Redaction is not required for a co-defendant’s statement when it is used to help establish probable cause since hearsay may be used to establish probable cause. FSM v. Jappan, 22 FSM R. 81, 83 n.1 (Chk. 2018).

Criminal Law and Procedure - Interrogation and Confession
If the defendants are tried together, a defendant’s out-of-court statement ought to be redacted to eliminate references to other co-defendants. Failure to do so may result in reversal of convictions in the interests of justice. After redaction, no prejudice will occur if the statements then give no reference to any co-defendant. Redaction can normally be accomplished by the parties. Thus, the court will not view the statement until after redaction. FSM v. Jappan, 22 FSM R. 81, 84 (Chk. 2018).

Criminal Law and Procedure - Interrogation and Confession
When co-defendants are tried together, one defendant’s admissible out-of-court statement must be redacted to eliminate references to any co-defendant. FSM v. Jappan, 22 FSM R. 81, 84 (Chk. 2018).

Criminal Law and Procedure - Interrogation and Confession
Since it will not be known until trial whether either co-defendant will testify, the prosecution should be prepared for the eventuality that neither will. The prosecution presents its case first. Whether any co-defendant will testify is rarely certain until the defense has called its last witness. It is therefore proper that the parties agree on the redaction before trial. FSM v. Jappan, 22 FSM R. 81, 84 (Chk. 2018).

Criminal Law and Procedure - Interrogation and Confession
If the prosecution is ready with a redacted version of any co-defendant statement that it intends to introduce as evidence at trial, the trial will not be delayed to wait for the redactions or by disputes over what should be redacted. The prosecution may then use redacted version in its case-in-chief, and if a co-defendant does later testify, the prosecution, may then use that co-defendant’s unredacted statement in its cross-examination even if it has already introduced the redacted version. FSM v. Jappan, 22 FSM R. 81, 84 (Chk. 2018).

Criminal Law and Procedure - Conspiracy; Evidence - Hearsay
A statement made by an alleged co-conspirator during the course of and in furtherance of the conspiracy is not hearsay and is admissible. FSM v. Jappan, 22 FSM R. 81, 84 n.2 (Chk. 2018).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

On September 21, 2018, defendants Jayson Jappan and Anreta Fret each filed virtually identical motions, in which each co-defendant seeks to have their own name redacted from any statement made by their co-defendant - Anreta Fret moves to have her name redacted from any of Jayson Jappan’s statements and Jayson Jappan moves to have his name redacted from any of Anreta Fret’s statements.

The prosecution’s October 5, 2018 consolidated response to the defendants’ motions, opposes redaction as premature since it is not presently known whether either co-defendant will testify at trial. It therefore asks the court to deny both motions at this time.

In the past, the court has consistently rejected this redaction-is-premature argument. The prosecution has not shown any reason why the court should not reject it yet again. The court has repeatedly required the redaction before trial of any co-defendant’s statement that the prosecution intends to use at trial. E.g., FSM v. Suzuki, 17 FSM R. 70, 75 (Chk. 2010).

The use of a non-testifying defendant’s statement as evidence against a co-defendant violates the co-defendant’s "right . . . to be confronted with the witnesses against him," FSM Const. art. IV, § 6, since the declarant is not a trial witness subject to the co-defendant’s cross-examination. , 6 FSM R. 293, 301 (App. 1993); Hartman vman v. FSM. FSM, 5 FSM R. 224, 229 (App. 1991).^[1] This difficulty can be eliminated if the parties redact any co-defendant statements before trial. Hartman, 6 FSM R. at 301-02 & n.12; Hartman, 5 FSM R. at 230 ("many problems can be eliminated by a redaction of parts of the inculpatory statements referring to co-defendants who are jointly tried"); FSM v. Aliven, 16 FSM R. 520, 530 (Chk. 2009) (if co-defendants are tried together, a defendant’s admissible out-of-court statement should be redacted to eliminate references to other co-defendants); FSM v. Sam, 14 FSM R. 328, 335 (Chk. 2006) (once the parties accomplish redaction, no prejudice will occur if the statements then give no reference to any co-defendant and the court does not view the statement until after redaction).

[I]f the defendants are tried together . . . a defendant7;s out-of-couf-court statement ought to be redacted to eliminate references to other co-defendants. Failure to do so may result in reversal of convictions in nteref justice. After redaction, no prejudice will ocll occur icur if the statements then give no reference to any co-defendant. Redaction can normally be accomplished by the parties. Thus the court will not view the statement until after redaction. Hartman v. FSM, 6 FSM R. 293, 301-02 & n.12 (App. 1993).

Sam, 14 FSM R. at 335. Thus, when co-defendants are tried together, one defendant’s admissible out-of-court statement must be redacted to eliminate references to any co-defendant. Hartman, 6 FSM R. at 301-02 (once redacted, no prejudice will occur if statement then gives no reference to co-defendant; failure to redact may result in reversal).

Since it will not be known until trial whether either co-defendant will testify, the prosecution should be prepared for the eventuality that neither will. The prosecution presents its case first. Whether any co-defendant will testify is rarely certain until the defense has called its last witness. It is therefore proper that the parties agree on the redaction before trial. If the prosecution is ready with a redacted version of any co-defendant statement that it intends to introduce as evidence at trial, the trial will not be delayed to wait for the redactions or by disputes over what should be redacted. The prosecution may then use redacted version in its case-in-chief, and if a co-defendant does later testify, the prosecution, may, of course, then use that co-defendant’s unredacted statement in its cross-examination.

Accordingly, the defendants’ motions to redact are granted. Any defendant’s out-of-court statement that the prosecution may wish to introduce at trial must be designated as such at least ten days before trial along with the proposed redactions. The parties must then consult so as to produce before trial an agreed redacted version which will be the out-of-court statement that the prosecution may try to introduce at trial. If a co-defendant does testify, the prosecution may then introduce that co-defendant’s unredacted statement even if it has already introduced the redacted version.^[2]

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^[1] Redaction is, of course, not required for a defendant’s statement when it is used to help establish probable cause since hearsay may be used to establish probable cause. See FSM v. Wainit, 10 FSM R. 618, 621 (Chk. 2002).

^[2] This does not apply to a statement made by an alleged co-conspirator during the course of and in furtherance of the conspiracy, because a statement by a party’s co-conspirator made during the course and in furtherance of a conspiracy is not hearsay and is admissible. FSM v. Kansou, 14 FSM R. 139, 141 (Chk. 2006) (citing FSM Evid. R. 801(d)(2)(E)). Neither motion appears to be addressed to any such statement and it is not apparent that the prosecution has any such statements that it intends to introduce at trial.