Under Section 40, Rule 130 of the Rules of Evidence, the declaration made by a person deceased or unable to testify against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to the declarant’s own interest that a reasonable person in his position would not have made the declaration unless he believed it to be true, is exempted from the hearsay rule.
The rationale for exempting declarations against interest from the hearsay rule is that people do not make statements which are damaging to themselves unless satisfied for good reason that they are true. The interest subject of the declaration includes a penal interest.
In an unadorned declaration against penal interest, there would be not much question as to its admissibility. For example, X states that “I robbed and killed O.” Not infrequently, however, declarations against interest are accompanied by “collateral” statements which may implicate other persons aside from the declarant. The question is whether such a collateral statement is admissible together with the salient declaration against interest.
Consider the following hypothetical:
X, Y, and Z robbed a house and killed the occupant, an old widow. A month after, X confided to his girlfriend W that he, together with Y and Z, had committed the robbery with homicide. Subsequently, X was killed in a botched bank robbery. An information for robbery with homicide was filed against Y and Z. May the testimony of W regarding X’s statement be admissible against Y and Z to prove their participation in the crime?
The following factors1 determine whether a collateral statement would be admissible: (1) whether the statement has a close narrative and logical relation to the salient statement, (2) whether the statement is on balance against the interest of the declarant or “disserving,” and (3) whether the statement is testimonial.2
Guided by these lodestars, we can say that X’s statement that Y and Z were his cohorts is admissible to prove Y’s and Z’s complicity in the robbery with homicide. The statement has a close and logical relation to X’s statement that he committed the robbery with homicide, it is on balance disserving rather than self-serving because it would embroil X in a criminal conspiracy,3 and it is non-testimonial as it was not made to investigatory agents or for transmittal to them.
Let us change the facts of the previous hypothetical:
X, Y, and Z robbed a house and killed the occupant, an old widow. X was arrested a month later by the police. During a custodial interview, X told the police investigator that he, together with Y and Z, had committed the robbery with homicide. X was afforded the Miranda rights during custodial investigation. Prior to the trial, X died. May the court admit the police investigator’s testimony on X’s statement for the purpose of proving Y’s and Z’s complicity in the crime?
Here, the court may not admit X’s statement. The statement still has a close narrative and logical relation to X’s salient against-interest statement. However, the statement is on balance self-serving rather than disserving. X most probably is trying to curry favor with the police and the prosecution by snitching on his cohorts; he may have ideas of turning state witness.4 The arrest statements of a declarant have traditionally been viewed with special suspicion.5
Moreover, X’s statement, having been made to a police investigator, is testimonial and, hence, pursuant to Crawford6 cannot be admitted against Y and Z because it would violate their constitutional right of confrontation.
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- MUELLER, KIRKPATRICK, & RICHTER, EVIDENCE 1018-1020 (6th ed., 2018); Advisory Committee Note to FRE 804(b)(3). ↩︎
- In the landmark case of Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court ruled that an out-of-court “testimonial” statement (in this case offered as a declaration against penal interest) may not be admitted against the accused unless (1) the declarant is available at the trial for cross-examination, or (2) the declarant is unavailable to testify and the accused against whom the statement is offered had the prior opportunity to cross-examine the declarant. The court held that admitting such a statement would violate the accused’s confrontation right. From Crawford and other U.S. cases, one may induce a definition of “testimony” as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact” and for use in the prosecution of a crime. ↩︎
- See United States v. Udeozor, 515 F.3d 260, 267 (4th Cir. 2008). ↩︎
- See Williamson v. United States, 512 U.S. 594 (1994). ↩︎
- Lee v. Illinois, 476 U.S. 530, 541 (1986). ↩︎
- Supra at Note 2. ↩︎
