§ 34.05 STATEMENTS AGAINST INTEREST: FRE 804(B)(3)

• Jurisdiction: United States

§ 34.05. STATEMENTS AGAINST INTEREST: FRE 804(b)(3)

Rationale. Statements against interest are based on (1) necessity (i.e., the unavailability of the declarant) and (2) a circumstantial guarantee of trustworthiness that greatly reduces the risk of insincerity. The Supreme Court put it this way: "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."⁶⁸

Firsthand knowledge. Although not explicitly mentioned in the rule, firsthand knowledge on the declarant's part is required.⁶⁹

Party admissions. Statements of the parties are admissible as admissions of party-opponents under Rule 801(d)(2). The differences between party admissions and statements against interest are discussed with Rule 801.⁷⁰ The two rules rarely overlap, and the term "admission against interest" confuses the two rules and should be avoided.

[A] "Against Interest" Requirement

The "against interest" requirement focuses on the declarant's situation and motives at the time the statement was made.⁷¹ This is the critical condition, which follows from the underlying theory of the rule. Determining whether the statement is, in fact, against interest demands an examination of the context in which the statement was made.⁷² For example, a statement acknowledging a debt of $500 would, under most circumstances, be a declaration against the declarant's pecuniary interest. If, however, the declarant made the statement while disputing a $1000 debt (and the statement is offered to prove the debt was only $500), it is not against interest.

By its terms, the rule requires the "against interest" standard to be judged from the perspective of a "reasonable" person. Yet, the statement need not be a "full confession" or an "explicit admission."⁷³

[B] Types of Interests

At common law, the declaration had to be against the declarant's pecuniary or proprietary interest to be admissible. Courts gradually interpreted "pecuniary interest" expansively to include statements that would subject declarants to civil liability.⁷⁴ As proposed by the Supreme Court, the federal rule also covered declarations against social interest, that is, a statement making the declarant "an object of hatred, ridicule, or disgrace."⁷⁵ Congress rejected this provision, but some states adopted it.

The common law did not admit declarations against penal interest. This position rested upon a concern about collusive arrangements between defendants and declarants to fabricate confessions exonerating the defendant. The declarant would "confess" to the crime that the defendant was charged with and then disappear. If the statement were admitted as a declaration against interest, the defendant may be acquitted, in which case the Double Jeopardy Clause would preclude a retrial — even if the declarant returned and repudiated the "confession." (If the declarant were on trial, the statement would be admissible as an admission of a party-opponent and resort to the "declaration against interest" exception would not be needed.)

Nevertheless, the federal drafters, following the position of Wigmore⁷⁶ and Justice Holmes,⁷⁷ rejected the common law position but then added a corroboration requirement as a safeguard against fabricated confessions.⁷⁸ The rejection of the common law rule is also supported by Chambers v. Mississippi,⁷⁹ in which the Supreme Court held that the exclusion of declarations against penal interest offered for the purpose of exculpation violated due process under the facts of that case. The Chambers case went beyond the rule because the declarant in Chambers was not unavailable.⁸⁰

[C] Corroboration Requirement

Rule 804(b)(3)(B) imposes a corroboration condition when declarations against penal interest are offered in criminal cases. Before 2010, the corroboration requirement applied only when the statement was offered to exculpate the accused.⁸¹ The federal cases, however, had applied the requirement to inculpatory statements as well — i.e., when offered by the prosecution.⁸² The 2010 amendment clarifies that corroboration is needed in either case.⁸³

The rule does not require that the information in the statement be corroborated but rather that there be corroborating circumstances indicating the trustworthiness of the statement itself.⁸⁴ The federal cases specify a number of relevant factors in determining whether the corroboration requirement has been satisfied:

(1) whether the declarant had at the time of making the statement pled guilty or was still exposed to prosecution for making the statement, (2) the declarant's motive in making the statement and whether there was a reason for the declarant to lie, (3) whether the declarant repeated the statement and did so consistently, (4) the party or parties to whom the statement was made, (5) the relationship of the declarant with the accused, and (6) the nature and strength of independent evidence relevant to the conduct in question.⁸⁵

[D] Collateral Statements

The admissibility of collateral statements — those that are not directly against the declarant's interest — has proved controversial. Wigmore argued that the entire passage should be scrutinized, and if it, as a whole, was against the declarant's interest, the statement should be admitted.⁸⁶ For example, the statement "Botz and I shot Schmedlap" is admissible under this view, even though the collateral statement about Botz is not directly against the declarant's interest. Other commentators disagreed, urging that only the part explicitly against the declarant's interest be admitted.⁸⁷ Under this view, the phrase about Botz would not be admissible. A third view, a compromise position, distinguished between "collateral neutral" statements and "collateral self-serving" statements.⁸⁸ For example, in the statement "Botz and I shot Schmedlap," the phrase "Botz and" is neutral and thus is admissible under this approach. In contrast, the statement "Botz, not I, did the actual shooting" is a collateral self-serving statement and not admissible. The distinction is...