Exception to the rule against hearsay: Text
Exception to the rule against hearsay: Interpretations of the text
Requirement that the declarant believe the statement is against his or her interest
Requirement that the statement be incriminating on its face: In general
Requirement that the statement be incriminating on its face: Examples from case law
In general
• Evidence Rule 804(b)(3) creates a hearsay exception for statements against interest if the declarant is unavailable as a witness.
State v. Chavez, 956 N.E.2d 709, 712 (Ind. Ct. App. 2011)
See Minor v. State, 36 N.E.3d 1065, 1070-71 (Ind. Ct. App. 2015), trans. denied(“Indiana Evidence Rule 804(b)(3) provides an exception to the hearsay rule when the declarant is unavailable as a witness . . . .”)
See also Swanigan v. State, 720 N.E.2d 1257, 1259 (Ind. Ct. App. 1999), reh’g denied(“[H]earsay testimony is nevertheless admissible under the statement against interest exception if the declarant is unavailable as a witness . . . .”)
Exception to the rule against hearsay: Text
• The following are not excluded by the hearsay rule if the declarant is unavailable as a witness[:] . . .
(3) Statement Against Interest. A statement that that 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.
A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both the declarant and the accused, is not within this exception.
• For information about the relationship between acts or words of a co-defendant and the rule against hearsay, please review Acts or Words of a Co-Defendant.
Exception to the rule against hearsay: Interpretations of the text
• Statements against interest are admissible if, at the time they were made, they tended to subject the declarant to criminal liability such that a reasonable person in the declarant's position would not have made them if he did not believe in their truth.
Tolliver v. State, 922 N.E.2d 1272, 1280 (Ind. Ct. App. 2010), trans. denied
Smith v. State, 718 N.E.2d 794, 804 (Ind. Ct. App. 1999), trans. denied, abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1207 n. 10 (Ind. 2007)(citing Evid. R. 804(b)(3))
See Leicht v. State, 798 N.E.2d 204, 208 (Ind. Ct. App. 2003), trans. denied(citing Jervis v. State, 679 N.E.2d 875, 878 (Ind. 1997))(“A statement against the declarant's penal interest is one that so far tends to subject the declarant to civil or criminal liability that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.”)
See also Lanham v. State, 937 N.E.2d 419, 424 (Ind. Ct. App. 2010)(citing Jervis v. State, 679 N.E.2d 875, 878 (Ind. 1997))(“A statement against the declarant's penal interest is one that tends to subject the declarant to civil or criminal liability such that a reasonable declarant would not have made the statement unless believing it to be true.”)
Rationale
• [T]he rationale for allowing statements against interest into evidence is that the declarant would only make such a statement if it were true because the content of the statement goes against the declarant's interests, and that this rationale fails if the declarant did not believe the statement was against his or her interest.
Beasley v. State, 30 N.E.3d 56, 66-67 (Ind. Ct. App. 2015), reh’g denied
• The rules of evidence assume that such statements are reliable precisely because they are against the interest of the declarant.
Beasley v. State, 30 N.E.3d 56, 67 (Ind. Ct. App. 2015), reh’g denied
Requirement that the declarant believe the statement is against his or her interest
• “If the declarant does not believe the statement to be against his interest, the rationale for the exception fails.”
Jervis v. State, 679 N.E.2d 875, 879 n. 6 (Ind. 1997))(quoting 4 Weinstein's Evidence ¶ 804(b)(3)[02], at 804–147 (1996) (collecting cases))
See Smith v. State, 718 N.E.2d 794, 804 (Ind. Ct. App. 1999), trans. denied, abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1207 n. 10 (Ind. 2007)(“Our supreme court has found that the hearsay exception for declarations against interest was not applicable when the speaker may not have realized that his statements constituted admission that he had perpetrated a crime.”)
Requirement that the statement be incriminating on its face: In general
• To qualify under this hearsay exception, the statement against interest must be incriminating on its face.
Minor v. State, 36 N.E.3d 1065, 1071 (Ind. Ct. App. 2015), trans. denied(citing Jervis v. State, 679 N.E.2d 875, 878 (Ind. 1997))
See Tolliver v. State, 922 N.E.2d 1272, 1280 (Ind. Ct. App. 2010), trans. denied(“The State concedes that, as a general matter, to qualify under this hearsay exception, the statement against interest must be incriminating on its face.”)
E.g., Jervis v. State, 679 N.E.2d 875, 878 (Ind. 1997)(“We agree with the State that the trial court was within its discretion in rejecting this evidence. The statements attributed to [the declarant] did not constitute an admission of a crime. In and of themselves they did not even ‘tend to subject’ [the declarant] to criminal liability. At most, they cast suspicion on [the declarant] when paired with other information that may or may not have been known to [the declarant].”)
Requirement that the statement be incriminating on its face: Examples from case law
• [W]e are not aware what [the declarant’s] actual statement was, and consequently, we can hardly say that it was incriminating on its face. Again, even assuming that [the declarant’s] statement to [his cousin] was something along the lines of “I am carrying a gun on me,” we would still be without sufficient information to determine anything about the legality of him carrying that gun that would lend reliability to the statement. Moreover, we cannot say that [the declarant’s] statement to his cousin claiming that he was carrying a gun is the type of statement that a reasonable person in his position would have made only if he believed it to be true; it is highly unlikely that [the declarant] would have been concerned with potential criminal liability when he made that statement to his cousin. We agree with the trial court that [the declarant’s] statement was not admissible as a statement against interest pursuant to Indiana Evidence Rule 804(b)(3).
Minor v. State, 36 N.E.3d 1065, 1071 (Ind. Ct. App. 2015), trans. denied
• As the State concedes, [the declarant’s] statements that he would “get” [the defendant] and “handle it [him]self” are not incriminating on their face and do not implicate him in a crime. These statements are merely statements of intent. To the extent they are claimed to evince criminal intent, mens rea, in and of itself, does not subject a person to criminal liability.
Tolliver v. State, 922 N.E.2d 1272, 1281 (Ind. Ct. App. 2010), trans. denied
• [The declarant’s] loose allegations of possible employment repercussions or civil suits directed towards Detective Morgan from his purported statements . . . fail to convince this Court that such statements were contrary to his pecuniary or proprietary interest or of the sort that would have subjected him to civil or criminal liability.
Badelle v. State, 754 N.E.2d 510, 523 (Ind. Ct. App. 2001), trans. denied
Requirement of reliability
• The requirement of reliability is embodied within this hearsay exception, as reliability is the ultimate justification of statements against interest.
Minor v. State, 36 N.E.3d 1065, 1071 (Ind. Ct. App. 2015), trans. denied(citing Bryant v. State, 794 N.E.2d 1135, 1142 (Ind. Ct. App. 2003), trans. denied)
• [F]or the same reasons courts in this state have historically viewed such declarations with suspicion, trial courts should be alert to evaluate the overall reliability of the proffered statement. Reliability is, after all, the ultimate justification for admission of statements against interest.
Jervis v. State, 679 N.E.2d 875, 879 (Ind. 1997)(emphasis added)(footnote omitted)
Bryant v. State, 794 N.E.2d 1135, 1142 (Ind. Ct. App. 2003), trans. denied(quoting Jervis v. State, 679 N.E.2d 875, 879 (Ind. 1997))(alteration in the original)(“Nevertheless, our supreme court has observed . . . .”)
Swanigan v. State, 720 N.E.2d 1257, 1260 (Ind. Ct. App. 1999), reh’g denied(quoting Jervis v. State, 679 N.E.2d 875, 879 (Ind. 1997))(“Immediately thereafter, the court stated . . . .”)
When a statement or confession is offered against the accused in a criminal case and implicates both the declarant and the accused: Examples from case law
• [W]e find that [the declarant’s] videotaped statement clearly implicated both himself and [the defendant], and thus in accordance with Evid. R. 804(b)(3) falls squarely within the types of statements our hearsay rules intended to exclude.
Payne v. State, 854 N.E.2d 7, 22 (Ind. Ct. App. 2006)
• Evidence Rule 804(b)(3) explicitly states that the statement against interest exception does not apply in this scenario . . . .
Chavez v. State, 956 N.E.2d 709, 713 (Ind. Ct. App. 2011)
• For information about the relationship between acts or words of a co-defendant and the rule against hearsay, please review Acts or Words of a Co-Defendant.