Everything's Bigger In Texas?: Opinion Reveals Four Key Differences Between Federal And Texas Statement Against Interest Exceptions

The recent opinion of the Court of Appeals of Texas in Chaney v. State, 2009 WL 1086952 (Tex.App.-Houston [1 Dist.] 2009), reveals that Texas' statement against interest exception to the rule against hearsay is different from its federal counterpart in four material regards. 

In Chaney, Jermaine Chaney appealed from his conviction for murder. The prosecution procured Chaney's conviction in large part through the testimony of Antoinette Miller, who testified at trial that the victim had stolen cocaine from her husband and that he had sent Chaney to kill the victim. After Chaney was convicted, he appealed, claiming, inter alia, that Miller's testimony was improperly admitted.

The Court of Appeals of Texas thus had to address whether Miller's testimony was admissible under Texas Rule of Evidence 803(24), the statement against interest exception to the rule against hearsay, which provides that:

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Conversely, Federal Rule of Evidence 804(b)(3), the federal statement against interest exception to the rule against hearsay, provides that, when a declarant is "unavailable" as defined in Federal Rule of Evidence 804(a):

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. 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.  

There are thus three clear material differences between the two hearsay exceptions. First, the federal exception requires that the declarant be unavailable while the Texas exception does not. Second, the federal exception only covers statements (a) contrary to the declarant's pecuniary or proprietary interest, (b) tending to subject the declarant to civil or criminal liability, or (c) that would render invalid a claim by the declarant against another. The Texas exception covers these statements as well as statements that would "make the declarant an object of hatred, ridicule, or disgrace." Third, the federal exception only requires "corroborating circumstances" when a statement tending to expose the declarant to criminal liability is offered to exculpate a criminal defendant. The Texas exception requires "corroborating circumstances whenever a statement tending to expose the declarant to criminal liability is offered at a criminal trial.

In Chaney, however, two of these differences might have been relevant. First, the opinion makes no mention of the husband being "unavailable," which would have rendered the federal exception, but not the Texas exception, inapplicable. Second, the husband's statement tended to expose him to criminal liability but was not offered to exculpate Chaney. Thus, "corroborating circumstances" would not have been required under the federal exception, but they were required (and found) under the Texas exception.

So, the Court of Appeals of Texas found that Miller's testimony was properly received, and a court using the Federal Rule of Evidence 804(b)(3)..., well it would have reached a different conclusion, which brings me to the fourth key difference between the two rules. You see, in Williamson v. United States, 512 U.S. 594 (1994), the Supreme Court found that Federal Rule of Evidence 804(b)(3) does not allow for the admission of portions of statements against interest by a declarant which also implicate the defendant.

In Bingham v. State, 909 S.W.2d 903 (Tex.Crim.App. 1994) (which was subsequently withdrawn), a concurring judge noted Williamson's holding and noted that Texas precedent did allow for the admission of portions of statements against interest by a declarant which also implicate the defendant. But while that judge called for overruling of the inconsistent Texas precedent, as far as I can tell, this Texas precedent has not been overruled, which is why the court found that Miller's testimony was properly received.

-CM