Class 21: Hearsay Exception for Statements Against Interest; Forfeiture - Mar. 26 Flashcards
What is a statement against interest? (Q)
A statement against interest is a statement that is so contrary to a declarant’s penal, proprietary, or pecuniary interest, that a reasonable person in the declarant’s position would not have made it were it not true.
What are the requirements to admit a statement against interest as a hearsay exception? (Russo)
(1) The declarant must be unavailable
(2) The statement (when made) is against the declarant’s proprietary or pecuniary interest, or tends to invalidate the declarant’s legal claim, or exposed the declarant to civil or criminal liability
(3) The statement was so against the declarant’s interest when made that a reasonable person would not have made the statement unless it was true (person doesn’t have to fully appreciate it, just has to be highly likely)
(4) In criminal cases, if the statement exposes the declarant to criminal liability, must be supported by corroborating circumstances clearly indicating its trustworthiness.
(FRE 804(b)(3))
What factors are used in determining the trustworthiness of statements against interest in criminal cases? (Russo/Merritt)
(1) Whether the declarant had pled guilty before making the statement or was still exposed to prosecution (that is, how far against the declarant’s interest the statement was at the time);
(2) The declarant’s motive in making the statement and whether there was a reason for the declarant to lie;
(3) Whether the declarant repeated the statement and did so consistently;
(4) The party or parties to whom the statement was made;
(5) The relationship of the declarant with the accused; and
(6) The nature and strength of independent evidence relevant to the conduct in question. (how strong is the evidence corroborating the facts asserted by the declarant?)
What is the difference between a hearsay statement offered as an opposing party’s statement and a hearsay statement offered as a statement against interest? (Q)
An opposing party’s statement need not be against the declarant’s interest; can be on any subject; raises no Sixth Amendment issues; and requires no specific motive, corroboration, or personal knowledge of the statement’s facts.
A landlord, the owner of a warehouse that burned down in a fire, sued the tenant for negligence. The owner alleged that the fire started when the tenant’s friend left a lit cigarette near flammable material. The friend spoke to investigators and admitted to smoking cigarettes in the warehouse. The friend disappeared before trial and the owner could not find him or serve him with a subpoena. At trial, the owner moved to introduce the friend’s statement to the investigators. The tenant objected, arguing that the statement was hearsay.
Assuming the statement meets the general definition of hearsay, which is inadmissible unless an exception or exclusion applies, how should the court rule on the objection? (Q)
The court should overrule the objection. Hearsay is admissible if: (1) the declarant is unavailable—e.g., is absent, and the proponent cannot procure the declarant’s attendance or testimony; (2) the declarant had personal knowledge of the facts in the statement; and (3) a reasonable person in the declarant’s position would have made the statement only if the person believed it to be true at the time it was made, as it was so contrary to the declarant’s proprietary, pecuniary, or penal interests.
Here, the friend is unavailable; he fled and the owner cannot find him. He had personal knowledge that he smoked in the warehouse. The statement was against the friend’s interests, as he could have been liable for leaving a cigarette where it could cause a fire. A reasonable person would have made such a statement only if it were true. Thus, the statement is admissible.
What happens if a statement against interest inculpates a third party? (Q)
If a statement against interest inculpates a third party, the statement must be redacted to exclude the portion that relates to the third party. However, if a statement against interest exculpates a third party, it may be admissible in its entirety if all parts of the statement are at odds with the declarant’s interests.
If a declarant’s statement shifts blame, is that statement necessarily against the defendant’s interest? (Russo)
No. The full statement must be against the defendant’s interest.
Is there a timing delay where people will think a statement against interest is more trustworthy? (Russo)
No. However, if the timing is that where it is close to the trial and someone else confesses, then that will be questionable.
An employee embezzled money by writing checks against the employer’s account and cashing the checks at a currency exchange. When confronted by an investigator, the employee admitted his participation in the fraud. The employer sued the currency exchange for racketeering violations. The employer called the employee to testify. The employee asserted his Fifth Amendment privilege against self-incrimination and the court found that the privilege applied. The investigator then testified. The employer’s attorney asked the investigator what the employee told him about the embezzlement. The currency exchange objected, arguing the statement was hearsay.
Assuming the statement meets the general definition of hearsay, which is inadmissible unless an exception or exclusion applies, should the court admit the statement? (Q)
Yes. A statement against interest is admissible if: (1) the declarant is unavailable; (2) the declarant had personal knowledge of the statement’s facts; and (3) a reasonable person in the declarant’s position would make the statement only if he believed it to be true because it was so contrary to his proprietary, pecuniary, or penal interest. If the statement is offered in a criminal case and would tend to expose the declarant to criminal liability, it must be supported by corroborating circumstances clearly indicating its trustworthiness.
Here, this is not a criminal case. The declarant is unavailable because he asserted a privilege. He knew he was involved in the fraud. The statement was against his penal interest because he risked an embezzlement charge, and a reasonable person in his position would not make the statement unless it was true. Thus, the court should admit the statement.
Is an unavailable declarant’s out-of-court statement offered against a party who wrongfully and intentionally caused the declarant’s unavailability admissible? (Q)
Yes. An unavailable declarant’s out-of-court statement offered against a party who wrongfully and intentionally caused the declarant’s unavailability is admissible. To exclude the statement would give parties incentive to cause witnesses to be unavailable or reward parties for their wrongful interference with a prospective witness’s testimony.
What are the requirements to admit forfeiture as a hearsay exception? (Russo)
(1) Declarant is unavailable
(2) Party against whom the statement is offered acted wrongfully, or acquiesced in wrongful conduct (coercion, undue influence, or pressure to silence testimony and impede the truth-finding function of trials)
(3) The wrongful conduct was intended, at least in part, to make the declarant unavailable
(4) The wrongful conduct in fact caused the unavailability.
FRE 804(b)(6)
What FRE covers the statements against interest hearsay exception?
FRE 804(b)(3)
What FRE covers the forfeiture hearsay exception?
FRE 804(b)(6)
