Thursday, October 22, 2009
Federal Rule of Evidence 804(b)(3) currently provides an exception to the rule against hearsay for
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.
As far as I know, the Rule is unique among the Federal Rules of Evidence as the only Rule that makes it more difficult for a criminal defendant to introduce evidence than it is for the prosecution to admit evidence (Compare my earlier post about how almost all of the Federal Rules of Evidence make it at least as difficult to admit evidence against a criminal defendant as it is to admit evidence against a civil defendant). Presently, criminal defendants trying to present statements against interest to exculpate themselves must present evidence of corroborating circumstances, but prosecutors trying to present statements against interest to incriminate criminal defendants need not provide such evidence. It appears, though, that this disparity is about to change.
As the Wisconsin Law Journal reported yesterday, last month, the Judicial Conference of the United States adopted the recommendation of the Advisory Committee on Evidence Rules to amend Federal Rule of Evidence 804(b)(3) so that prosecutors, as well as defendants, need to present evidence of corroborating circumstances before admitting statements against interest. This change is based upon opinions by certain courts already adding this requirement, such as the Seventh Circuit in United States v. Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990), and the Fifth Circuit in United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978).
The article notes that the proposed rule change was not controversial because "It operates only against the government, and the government did not oppose it." The government's lack of opposition was likely based upon the fact that the proposed rule is clearly fair. As the Committee Note to the proposed rule change states, “A unitary approach to declarations against penal interest assures both the prosecution and the accused that the Rule will not be abused and that only reliable hearsay statements will be admitted under the exception."
[t]he note also states that, in assessing whether corroborating circumstances exist, courts should not consider the credibility of the witness who relates the statement. "To base admission or exclusion of a hearsay statement on the witness’s credibility would usurp the jury’s role of determining the credibility of testifying witnesses."