Wednesday, December 1, 2010
Today, the recent amendment to Federal Rule of Evidence 804(b)(3) finally took effect. Previously, Rule 804(b)(3) provided 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.
After the amendment, Federal Rule of Evidence 804(b)(3) now provides an exception to the rule against hearsay for
A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
In other words, previously only criminal defendants had to prove sufficient corroborating circumstances to introduce statements exposing declarants to criminal liability (usually confessions by alternate suspects). Now, the same burden also falls on prosecutors if, for instance, they are trying to introduce statements exposing declarants to criminal liability (e.g., statements by people who allegedly helped defendants commit the crime charged).