§ 10.15 DECLARATIONS AGAINST INTEREST

• Jurisdiction: United States

§ 10.15 DECLARATIONS AGAINST INTEREST

[1] THE DOCTRINE

Statements or admissions of a party-opponent are disserving to the declarant's interest at the time of trial; the admission is inconsistent with some position the party-opponent is defending at the time of trial. So long as the statement is disserving at that time, it is admissible even if it was highly self-serving when made. Declarations against interest contrast with admissions in several respects. Declarations against interest are admissible only if at the time of the statement, the declarant believed the statement was contrary to his or her interest. The declarant's belief is the guarantee of the reliability of declarations against interest. Moreover, declarations against interest are admissible only if the declarant is unavailable at the time of trial. The declarant's unavailability supplies the necessity for resorting to the hearsay. In the case of admissions, the party-opponent is usually available and present at trial. Finally, the declarant of an admission must be the party-opponent while any person can make a declaration against interest.

Federal Rule of Evidence 804(b)(3) states the doctrine: "The following [is] not excluded by the rule against hearsay if the declarant is unavailable as a witness: 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."

[2] ELEMENTS OF THE FOUNDATION

The foundation for this hearsay exception includes the following elements:

1. The declarant subjectively believed that the statement was contrary to his or her interest. Even at common law, the belief of the hypothetical, reasonable person could be used as circumstantial evidence of the subjective belief of the declarant. On its face, Federal Rule of Evidence 804(b)(3) refers only to the objective reasonableness test; and some federal courts have read the statute literally.⁷

In applying this element, the courts focus on the specific statement proffered rather than the overall narrative including the statement. In

...