See also: CONFESSIONS–Confessions of Co-Defendants; HEARSAY
TESTIMONY.

1.  Generally

This rule admits over a hearsay objection statements by an unavailable non-party which were so contrary to the interests of the declarant that no reasonable person would have made the statement if they didn’t believe it to be true.{footnote} [3919]  FRE 804 (b)(3); Chambers v. Mississippi, 410 U.S. 284, 298-99 (1973).  Cal. Evid. Code § 1230 (West 1992); Fla. Stat. ch. 9.804 (1991); New York v. Brensic, 509 N.E.2d 1226 (N.Y. 1987). {/footnote}  It follows that statements will be excluded, however, where the declarant had reason to make the statement even if it was false.{footnote}Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272 (5th Cir. 1991); G.M. McKelvey Co. v. General Casualty Co., 142 N.E.2d 854 (Ohio 1957).{/footnote} 

2.  Unavailability

A statement against interest is only admissible if the declarant is  unavailable to testify.{footnote}Vaccaro v. Alcoa Steamship Co., 405 F.2d 1133 (2d Cir. 1968).
State v. Duntz, 613 A.2d 224 (Conn. 1992); State v. Jurgensen, 681 A.2d 981 (Conn. App. 1996); Goff v. State, 496 P.2d 160 (Nev. 1972).  {/footnote}  Under the federal rules, a witness who could have been served with a foreign deposition subpoena is not "unavailable".  See discussion of "unavailability" under TESTIMONY.

3.  Opinions Excluded

Only factual statements are admissible under this rule.  Statements of opinion or value are excluded.{footnote}Gichner v. Antonio Troiano Tile & Marble Co., 410 F.2d 238 (D.C. Cir. 1969)(G); Carpenter v. Davis, 435 S.W.2d 382 (Mo. 1968)(G).{/footnote} 

4.  The "Against Interest" Requirement

To be admissible under this rule a statement must be known by the declarant to be immediately and substantially contrary to the declarant’s interest.  Courts vary as to the type of statements meeting the requirement.  Most courts hold that it is enough if the statement is against the declarant’s pecuniary or property interests.{footnote}Grissom v. Bunch, 301 S.W.2d 462 (Ark. 1957)(G).  (acknowledgment of another’s interest in declarant’s land); Egbert v. Egbert, 132 N.E.2d 910 (Ind. 1956)(G).
{/footnote}  The federal rules limit this exception to statements that either "tend to subject the declarant to civil or criminal liability" or else render a claim by the declarant against another invalid.{footnote} [3924]  FRE 804(b)(3); Hargett v. National Westminster Bank, USA, 78 F.3d 836 (2d Cir. 1996)(letter suggesting stripper be hired for meeting not admissible under this rule); PECO v. Energy Co. v. Boden, 64 F.3d 852 (3d Cir. 1995)(employee’s statement that he had been told by supervisor to steal from customer admissible against employee); Lippay v. Christos, 996 F.2d 1490 (3d Cir. 1993)(informant’s statemement that he could not identify arrestee as person who sold him narotics not admissible under this exception).

 Check 114 A.L.R. 921 (G).{/footnote} 

Whether a statement is sufficiently against penal interest to qualify under FRE 804(b)(3) depends on "all the surrounding circumstances."{footnote}Williamson v. U.S., 114 S.Ct. 2431 (1994).{/footnote}  Statements that are on their face neutral may actually be against the declarant’s interest and thus satisfy this exception where they give the police significant details about the crime.{footnote}Williamson v. U.S., 114 S.Ct. 2431, 2436-37 (1994).{/footnote}

5.  Statements Against Penal Interest Offered by Accused

Common law traditionally excluded statements which were against the declarant’s penal interest (i.e., statements which tend to subject the declarant to criminal liability) when offered by the defense in criminal prosecutions.  In Chambers v. Mississippi, however, the United States Supreme Court held that under the Due Process Clause, a criminal defendant must be allowed to introduce evidence that another has confessed to the crime charged, where the evidence is crucial to the defense and is accompanied by reasonable indicia of trustworthiness.{footnote}Chambers v. Mississippi, 400 U.S. 284, 499-500 (1973).{/footnote}  The court identified four factors present in that case which required admission of the evidence: (1) the statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and against the declarant’s interest; and (4) there was adequate opportunity for cross-examination of the declarant.{footnote}Chambers, 410 U.S. at 300-01.{/footnote}  These factors are merely guidelines,{footnote}People v. Pecoraro, 677 N.E.2d 875 (Ill. 1997). {/footnote} and the presence of all four factors is not a condition of admissibility.{footnote}People v. Pecoraro, 677 N.E.2d 875 (Ill. 1997); People v. Cruz, 643 N.E.2d 636 (Ill. 1994).{/footnote}  That a statement is self-incriminating is not sufficient, however.{footnote}People v. Keene, 660 N.E.2d 901 (1995) (statement would not have been admissible where only Chambers factor present was that statement was self-incriminating).{/footnote} The Chambers decision is reflected in  FRE 804(b)(3) and its state counterparts:{footnote}See also People v. Pecoraro, 677 N.E.2d 875 (Ill. 1997) (third party’s alleged statement claiming responsibility for murder would have been inadmissible because unclear who statement made to, statement not corroborated, and no showing that declarant available for cross-examination).{/footnote}

. The defendant’s own testimony does not suffice as corroboration.{footnote}Alexander v. State, 449 P.2d 153 (Nev. 1968)(G).  Cf. Cal. § 1230. (statement must be accompanied by indicia of reliability).{/footnote} 

Even under the traditional rule, statements which tend to create both civil and criminal liability may be admissible, however.{footnote}Seward v. Griffin, 116 Ill. App. 3d 749, 452 N.E.2d 558 (3d Dist. 1983)(CHECK–suggests that all statements against penal interest are against pecuniary interest);  Annot. 162 A.L.R. 446. {/footnote}

6.  By Decedent

Disparaging title.

State of mind.

Conveyances.

7.  Statements Against Penal Interest Offered by Prosecution

Some courts require corroboration whether the statement is offered by the defendant or the prosecution.{footnote}United States v. Riley, 657 F.2d 1377, 1383 (8th Cir. 1981)(G).{/footnote}  If the statement is that of a co-defendant who cannot be cross-examined because he will not testify at trial, it may not be used against other defendants without violating the defendant’s right to confrontation.{footnote}Bruton v. United States, 391 U.S. 123 (1968).{/footnote}  See BRUTON RULE, THE.

8.  Statements Injurious to Declarant’s Reputation

Some states admit under this exception statements which tend to subject the declarant to ridicule or disgrace.{footnote} [3937]  Cal. § 1230; Ka. Civ. P. Code § 60-460(j); Nev. Rev. Stat. § 51.345; N.J. Evid. R. 63(10); N.M. Stat. Ann. § 20-4-804(b)(4); Utah R. of Evid. 63(10); Wis. Stat. Ann. § 908.045(4); First Nat’l Bank v. Osborne, 503 P.2d 440 (Utah 1972).{/footnote}

9.  Offered Purpose

A statement which is capable of being construed as both consistent with and contrary to the declarant’s interests must, to be admissible under this exception, be offered for the purpose of establishing a fact which is contrary to the declarant’s interests.{footnote} [3938]  Wigmore § 1464(G).{/footnote} [BUT WHY ADMISSIBLE AT ALL–DEC. HAD MOTIVE TO SAY IT B/C PARTLY FAVORABLE]

10.  Trustworthiness

Must there be corroborating evidence of trustworthiness when evidence is offered, not to exculpate, but to inculpate a criminal defendant?{footnote}See United States v. Layton, 720 F.2d 548, 558-59 (9th Cir. 1983).  Check United States v. Palumbo, 639 F.2d 123, 129-30 (3d Cir. 1981) (concurrence)); F.R.E. 804(b)(4), advisory comm. note.
{/footnote}

11.  Statement Offered to Inculpate Defendant{footnote} [3940]  Check United States v. Palumbo, 639 F.2d 123, 129-30 (3d Cir. 1981); Advisory note to 804(b)(4), rptd. at 51 F.R.D. 315, 438-39, 443-44 (1971).  See generally Comment, Federal Rule of Evidence 804(b)(3) and Inculpatory Statements Against Penal Interest, 66 Calif. L. Rev. 1189, 1191-98 (1978).  Check United States v. Riley, 657 F.2d 1377, 1381-84 (8th Cir. 1981); United States v. Garris, 616 F.2d 626, 631-33 (2d Cir. 1980); United States v. Love, 592 F.2d 1022, 1025-26 (8th Cir. 1979),; United States v. Alvarez, 584 F.2d 694, 700-02 (5th Cir. 1978); United States v. Bailey, 581 F.2d 341, 345 n.4 (3d Cir. 1978); United States v. Turner, 475 F.Supp. 194, 196-98 (E.D. Mich. 1978)(memo?).
{/footnote}[3940]

The fact that the declarant has invoked the privilege against self-incrimination is evidence that a hearsay statement is against the declarant’s penal interest.{footnote}United States v. Layton, 720 F.2d 548, 563 (9th Cir. 1983).{/footnote} 

12.   Statements Held Admissible

Statements held admissible under this rule include statements which implicate the declarant in a conspiracy.{footnote}United States v. Layton, 720 F.2d 548, ___ (9th Cir. 1983).{/footnote}

13.  Statements Held Inadmissible

Statements held inadmissible under this rule include statements by one who was a mere observer of criminal conduct, but not a  participant.{footnote}Compare United States v. Poland, 659 F.2d 884 (9th Cir. 1981) and United States v. Layton, 720 F.2d 548, 560 n.10 (9th Cir. 1983).{/footnote}

14.  The Confrontation Clause

See CONFRONTATION CLAUSE.

The very fact that a statement is against penal interests strongly suggests that it passes the "reliability" prong of the Confrontation Clause test.{footnote}United States v. Layton, 720, F.2d 548, 561 (9th Cir. 1983)(reserving without deciding the issue).

See also Lee v. Illinois, 476 U.S. 530, 551-52 (1986)(Blackmun, J., dissenting)(finding FRE 804(b)(3) to be a "firmly rooted" hearsay exception); United States v. Monaco, 735 F.2d 1173, 1176 (9th Cir. 1984)(reserving without deciding the issue).
CHECK Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213, ___ (1970{/footnote}    But see CONFESSIONS.

15.  Appeal

As is generally the case with rulings on admissibility, a ruling admitting or excluding hearsay offered as a statement against interest is reviewed for an abuse of discretion.{footnote}United States v. Layton, 720 F.2d 548, 558 (9th Cir. 1983).  {/footnote} See APPELLATE REVIEW–General Standard of Review.

Bibliography

Comment, Federal Rules of Evidence 804(b)(3) and Inculpating Statements Against Penal Interest, 61 Cal. L. Rev. 1189, 1197 n. 7 (1978).