EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, March 26, 2020

New Jersey Allows Statements Against Interest Even if the Declarant is Available

Federal Rule of Evidence 804(b)(3) 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.

Rule 804(b)(3) is subject to Rule 804(a), which first requires that the proponent of a statement against interest establish that the declarant -- the person who made the statement -- is unavailable.

So, assume that declarant Dana says (1) "I killed Victoria;" (2) "Victoria has an easement over my property;" or (3) "I owe Victoria $300." All of these would be statements against interest, but they would only be admissible if Dana were unavailable (e.g., deceased, sick, missing) during the trial at which a party sought to introduce her statement.

Conversely, New Jersey's statement against interest hearsay exception is contained in New Jersey Rule of Evidence 803(25). And, under Rule 803, there is no requirement that the declarant be unavailable to testify. So, each of the above three statements by Dana would be admissible even if Dana were available to testify (and even if she testifies).

-CM

https://lawprofessors.typepad.com/evidenceprof/2020/03/new-jersey-allows-statements-against-interest-even-if-the-declarant-is-available.html

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Comments

The same is true in Texas. Unavailability is irrelevant. IMHO, this makes more sense.

Posted by: Frederick C Moss | Mar 31, 2020 12:59:17 PM

Agreed.

Posted by: Colin Miller | Apr 1, 2020 7:20:31 AM

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