Chapter 11 - § 11.1 • DECLARATION AGAINST INTEREST

• Jurisdiction: Colorado

§ 11.1 • DECLARATION AGAINST INTEREST

§ 11.1.1—Introduction

Under Colorado Rule of Evidence 804(b)(3), an out-of-court statement of a nonparty who is unavailable at the time of trial may be admissible and accepted substantively as an exception to the hearsay rule if the statement is against the declarant's proprietary or pecuniary interest, or exposes the declarant to civil or criminal liability. Bernal v. People, 44 P.3d 184, 199 (Colo. 2002). When offered in a criminal case as a statement that tends to expose the declarant to criminal liability, the out-of-court statement must also be "supported by corroborating circumstances that clearly indicate its trustworthiness." CRE 804(b)(3)(B); Nicholls v. People, 396 P.3d 675 (Colo. 2017) (overruling in part on other grounds People v. Newton, 966 P.2d 563 (Colo. 1998)). In determining the trustworthiness of a statement in the criminal context, the court must "limit its analysis to the circumstances surrounding the making of the statement and should not rely on other independent evidence that also implicates the defendant." Newton, 966 P.2d at 576; see also Bernal, 44 P.3d at 199 (statement held untrustworthy under 804(b)(3) but error harmless). Such circumstances may include where and when the statement was made, to whom, what prompted the statement, and the contents. Id. Additionally, the court should consider "the nature and character of the statement, the relationship between the parties to the statement, the declarant's probable motivations for making the statement, and the circumstances under which the statement was made." Bernal, 44 P.3d at 197.

Furthermore, in addition to the precise statements against penal interest, "related, collaterally neutral statements are admissible under CRE 804(b)(3)." Nicholls, 396 P.3d at 684 (emphasis omitted) (quoting Newton, 966 P.2d at 578); People v. Thompson, 413 P.3d 306, 329 (Colo. App. 2017) (affirming admission of related collateral statement as necessary to understand conversation). The Colorado rule is therefore broader than the federal rule in this respect. Nicholls, 396 P.3d at 684. However, "if the trial court determines that the declarant had a significant motivation to curry favorable treatment, then the entire narrative is inadmissible." Id.

This hearsay exception is predicated on "the principle of experience that a statement asserting a fact distinctly against one's interest is unlikely to be deliberately false or heedlessly incorrect." Bernal, 44 P.3d at 199 (citing 5 John Wigmore, Wigmore on Evidence § 1457 (Chadbourn Rev. 1974)). Thus, the statement's self-inculpatory nature is the basis of its...