Evidence rule may cut both ways; corroboration may be required for hearsay.

• Author: Ziemer, David

Byline: David Ziemer

The Seventh Circuit has long required corroboration for a hearsay statement to be admitted as a statement against the declarant's interest, regardless of whether the statement is offered by the government or the defendant.

Now, the text of the rule may be changing to conform to the Seventh Circuit's interpretation.

Under the current Rule 804(b)(3) of the Federal Rules of Evidence, a hearsay statement is admissible when the declarant is unavailable as a witness, and the statement was contrary to the defendant's interest.

However, the rule adds, A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Thus, under the letter of the current Rule, the government need not offer any corroboration to support admission of hearsay under the rule, but a defendant is required to.

Despite the plain text, the Seventh Circuit in 1990 adopted a test that requires corroboration no matter who seeks admission of hearsay under the exception. U.S. v. Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990). The Fifth Circuit has done the same. U.S. v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978).

And last month, the Judicial Conference of the United States adopted the recommendation of the Advisory Committee on Evidence Rules to amend the rule to conform to practice in the Seventh and Fifth Circuits.

Hon. Robert L. Hinke (N.D.Fla.), who chaired the Committee, said the rule change was not controversial. It operates only against the government, and the government did not oppose it.

The Committee Note to the proposal states, A unitary approach to declarations against penal interest assures both the prosecution and the accused that the...