EvidenceProf Blog

Opinion Of Interest: First Circuit Notes That Statement Against Interest Exception Covers Statements Against The Declarant's Interest

Federal Rule of Evidence 804(b)(3) 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.

And, as the text of this Rule and the recent opinion of the First Circuit in United States v. Figueroa-Cartagena, 2010 WL 2794368 (1st Cir. 201), make clear, the key to this Rule is that the statement be againt the declarant's interest, not that it be against the defendant's interest.

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Explain Yourself: Seventh Circuit Reverses Conviction Based On District Court's Failure To Explain Rule 403 Ruling

Federal Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Of course, evidence offered under Rule 404(b) is still subject to the balancing test set forth in Federal Rule of Evidence 403, which provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

And, as the recent opinion of the Seventh Circuit in United States v. Ciesiolka, 2010 WL 2891087 (7th Cir. 2010), makes clear, a trial court's perfunctory consideration of this balancing test is inadequate and may in itself be grounds for reversal.

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Looking For Consistency: Second Circuit Notes That Prior Consistent Statements Are Admissible For All Purposes

Federal Rule of Evidence 801(d)(1)(B) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive....

And, as the text of the Rule and the recent opinion of the Second Circuit in United States v. Caracappa, 2010 WL 2884970 (2nd Cir. 2010), make clear, because a prior consistent statement under this Rule is "not hearsay," it is admissible generally and not solely to counter the suggestion that the declarant's testimony was motivated by an improper purpose.

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No Residual Value: Eighth Circuit Rejects Defendant's Argument That His Exculpatory Statement Was Admissible Under Residual Exception

Federal Rule of Evidence 801(d)(2)(A) indicates that

A statement is not hearsay if...[t]he statement is offered against a party and is...the party's own statement, in either an individual or a

Of course, as the text of the Rule makes clear, the Rule only covers statements offered against a party, such as a defendant's incriminatory statements admitted against him by the prosecution. Conversely, the Rule does not cover statements offered by a party, such as a defendant's exculpatory statements offered by him at his criminal trial.  And, as the recent opinion of the Eighth Circuit in United States v. McCraney, 2010 WL 2852970 (8th Cir. 2010), makes clear, such statements are also unlikely to be admissible under the residual exception to the rule against hearsay.

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