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Table of Contents

Article I. General Provisions
Article II. Judicial Notice
Article III. Presumptions
Article IV. Relevancy and Its Limits
Article V. Privileges
Article VI. Witnesses
Article VII. Opinions and Expert Testimony
Article VIII. Hearsay
Rule 801
Rule 803
Rule 804
Rule 805
Article X. Contents of Writings, Recordings,
and Photographs
Revised Rule 803(7). Statement Against Interest Commentary 

The statement against interest exception to the hearsay rule is based on the premise that when a statement is made against the interest of the declarant, it will be made cautiously and truthfully. Early in its development, the exception included any statement made in prejudice to the speaker. Courts in both England and the United States, however, limited the exception by refusing to admit statements made against a declarant's penal interest. The rationale for this limitation was that admitting such statements would lead to testimony about confessions that were never made, and testimony about confessions that were falsely contrived. In England, courts admitted statements against pecuniary or proprietary interest, but refused to admit statements giving rise to civil liability. Courts in the United States rejected this limitation, and developed a rule admitting statements giving rise to tort or contract liability, as well as statements negating an otherwise valid claim.

During the promulgation of Current Rule 804(b)(3), the Advisory Committee adopted the United States common law and considered expanding the exception by allowing statements against penal interest to be admitted. Congress, however, qualified the admission of such statements by establishing a corroboration requirement in the Rule: "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."

Therefore, under Current Rule 804(b)(3), the proponent of a statement against interest must satisfy three requirements for admission. First, the proponent must show that the declarant is unavailable as a witness. Second, the proponent must show that the statement was, in fact, contrary to the declarant's proprietary, pecuniary, or penal interest. Third, the proponent must show that a reasonable person in the declarant's position would not have made the statement unless the person believed the statement to be true. In cases involving statements against penal interest offered to exculpate an accused, the proponent faces the added burden of corroborating the statement.

The first revision proposed for this exception is moving it from Rule 804, where the unavailability of the declarant is material, to Rule 803, specifically Revised Rule 803(7), where the availability of the declarant immaterial to admissibility. This was done for two reasons. First, it was concluded that if guarantees of reliability are provided by satisfaction of the elements of the exception, there is little justification for distinguishing declarations against interest from all other exceptions in Current and Revised Rules 803, and excluding them simply because the declarant is available. Second, the creation of the "subjective test" in Revised Rule 803(7) requires the initial examination and determination of the declarant's subjective beliefs. This can be a difficult determination. The presiding judge's ability to assess it accurately will be enhanced by the presence of the declarant. Therefore, the availability of the declarant should be seen as a positive factor, rather than a reason for exclusion.

The second proposed revision is the elimination of the requirement of corroboration for statements against penal interest offered to exculpate an accused. In addition, two non-substantive revisions are proposed to clarify the Rule's language . First, the "render invalid" was replaced with "invalidate." Second, "the person believed" was substituted for the word "believing."

The most significant change was the creation of a subjective test that operates independent of the objective reasonableness of the declarant's belief. The Advisory Committee imposed an objective test for determining whether the statement made was against the declarant's interest. The objective test was consistent with the requirement that the declarant be unavailable and, thus, making it more difficult to ascertain the declarant's subjective beliefs about the statement. This focus, however, is fundamentally inconsistent with the rationale for the exception--that people do not speak to their own perceived detriment without care. Only the subjective test provides this assurance. Revised Rule 803(7), therefore, adds a subjective precursor to the objective test embodied by Current Rule 804(b)(2). Revised Rule 803(7) requires a court to begin its analysis by inquiring whether the declarant personally believed the statement to be contrary to the declarant's interest. Where the declarant's belief is ascertainable, it must govern the question of admissibility. Only when sufficient evidence of the declarant's subjective belief is not available may the court move to the objective, reasonable person test of Current Rule 804(b)(2).

The subjective test is expansive, providing for admission of a statement contrary to any form of interest of the declarant. Statements contrary to a declarant's proprietary, pecuniary, penal, political, or social interests are admissible. This list, however, is not exhaustive. The category of interests allowed is left to the discretion of the court. This expansive scope of the exception is appropriate because the subjective analysis provides greater assurances of trustworthiness. In contrast, the objective test (the substance of Current Rule 804(b)(3)) is limited to declarations that are against the declarant's penal, pecuniary, or proprietary interests (the scope of Current rule 804(b)(3)). Under either the objective or the subjective test, both Current Rule 804(b)(3) and Revised Rule 803(7) require that the declarant have personal knowledge that the statement was against his interest at the time the statement was made. Also, implicit in Revised Rule 803(7) is the requirement that the declarant have no overriding motive to misstate.

The term "statement" means a single remark or declaration, as opposed to a broader narrative that contains favorable and unfavorable comments. The Project concluded that the rationale of the exception supports only admission of statements directly contrary to a declarant's interest. Therefore, "statement" should be interpreted to exclude collateral statements whether neutral or self-serving.

The final sentence of Current Rule 804(b)(3) requires corroborating circumstances clearly indicating the trustworthiness of a declaration against interest that was offered to exculpate the accused. This requirement created an imbalance between evidence that could be offered by the prosecution and evidence that could be offered by the accused. Current Rule 804(b)(3) does not indicate precisely what must be corroborated and to what degree. The Advisory Committee Note suggests that the corroboration should be enough to "effectuate [the requirement's] purpose of circumventing fabrication." In some circuits, this imbalance has been partially cured by interpreting the corroboration requirement as applying to all statements against penal interest whether offered by the prosecution to inculpate the accused or by the defense to exculpate the accused. This solution, however, does not address the ambiguity of the level of corroboration necessary. The Project concluded that the corroboration requirement should be eliminated rather than expanded to include inculpatory statements.

Click here to return to Revised Rule 803(7).