EvidenceProf Blog

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

Saturday, August 14, 2021

Illinois Court Finds Statement Against Interest Inadmissible Due to Failure to Prove Unavailability

Similar to its federal counterpart, Illinois 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. A statement tending to expose the declarant to criminal liability and offered in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

But, before such a "statement against interest" can be offered under this hearsay exception, the proponent must first establish that the declarant (the person who made the statement) is "unavailable" under Illinois Rule of Evidence 804(a). This unavailability requirement was the problem for the defendant in People v. Morris, 2021 WL 3578943 (Ill.App.2d 2021).

In Morris, a  jury acquitted Adam Morris of intentional first-degree murder, but convicted him of knowing first-degree murder and first-degree felony murder.

During his portion of the case, defendant sought to introduce the testimony of Shane Perry. Perry would testify that he had a conversation with [Byron] Howard in the McHenry County jail and that Howard told him that [Jared] Fox, Howard, and [Charles] Campo were involved in the offense, but Howard never mentioned defendant. The trial court found that this was inadmissible hearsay.

In upholding this decision on appeal, the court held that

Howard was never called as a witness or refused to testify; he never invoked any privilege and the trial court made no ruling on the existence of one. There is no indication that Howard was “unable to be present” for any reason or that he was unavailable for any other reason articulated in Rule 804(b)(3). Accordingly, Rule 804(b)(3) has no application here.

-CM

https://lawprofessors.typepad.com/evidenceprof/2021/08/similar-to-its-federal-counterpart-illinois-rule-of-evidence-804b3-provides-an-exception-to-the-rule-against-hearsay-for.html

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