Section 16.24 Declarations Against Interest

• Library: Evidence 2017

C. (§16.24) Declarations Against Interest

An out-of-court statement by a person not a party to the lawsuit may be admitted if:

· the declarant is unavailable;

· the statement was against the declarant’s pecuniary, proprietary, or penal interest when made;

· the statement relates to facts personally cognizable by the declarant; and

· the statement was made under circumstances that render the declarant’s motive to falsify improbable.

United Mo. Bank, N.A. v. City of Grandview, Mo., 179 S.W.3d 362, 371 (Mo. App. W.D. 2005); State v. Grant, 560 S.W.2d 39, 43 (Mo. App. E.D. 1977).

This exception only applies to nonparties. A statement against the interest of a party is, of course, an admission (sometimes redundantly referred to as an admission against interest). Such a statement is admissible apart from the other requirements of this exception. See the discussion in State v. Francis, 455 S.W.3d 56, 64 (Mo. App. E.D. 2014), rejecting the admission of the text messages at issue and discussing the difference between admissions against interest and statements against interest. See also §§16.5–16.9, supra.

The remaining prerequisites to admission of a declaration against interest are intended to make sure that the statement is sufficiently trustworthy and reliable to allow its use against a party without cross-examination of the declarant. These statements are considered trustworthy on the theory that “the declarant would not concede, even to himself, the existence of a matter contrary to his [own] interest unless he believed it to be true.” Osborne v. Purdome, 250 S.W.2d 159, 163 (Mo. banc 1952).

The distinguishing factor in this exception is that the statement be against the declarant’s interest. At common law, the exception was limited to declarations against proprietary or pecuniary interests—for example, a statement that a person had a leasehold interest in property rather than a fee simple interest (unless, of course, the declarant never claimed to have more than a lease), or that a person had signed a note (and thus was liable for its payment). Whatever the statement may be, that it is against the declarant’s interest must be so “‘palpable and positive’” that the injury to the person’s interest would “‘naturally’” be present in the declarant’s mind when the statement was made. Id. at 163 (quoting Tennison v. St. Louis-San Francisco Ry. Co., 228 S.W.2d 718, 720–21 (Mo. 1950)). And, for these reasons, an opinion as to fault is not admissible under this...