Public comments due on February 17, 2009 regarding draft amendment to FRE 804(b)(3) (Declarations Against Interest)
As part of the amendment process to the Federal Rules of Evidence, the U.S. Judicial Conference Committee on Rules of Practice and Procedure has approved a proposed amendment to FRE 804(b)(3) which has now been released for public comment. The proposed amendment would clarify that the corroborating circumstances requirement applies to statements against penal interest introduced by the government. This requirement applies to statements admitted by the defendant. Some courts have held that the same requirement applies to statements offered by the government.
A copy of the proposed text of the amendment follows:
PROPOSED AMENDMENT TO THE FEDERAL RULES OF EVIDENCE
Rule 804. Hearsay Exceptions; Declarant Unavailable
(b) Hearsay exceptions. - The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. - 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
The second sentence of Rule 804(b)(3) has been amended to provide that the corroborating circumstances requirement applies to all declarations against penal interest offered in criminal cases. A number of courts have applied the corroborating circumstances requirement to declarations against penal interest offered by the prosecution, even though the text of the Rule did not so provide. See, e.g., United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978) ("by transplanting the language governing exculpatory statements onto the analysis for admitting inculpatory hearsay, a unitary standard is derived which offers the most workable basis for applying Rule 804(b)(3)"); United States v. Shukri, 207 F.3d 412 (7th Cir. 2000) (requiring corroborating circumstances for against-penal-interest statements offered by the government). A unitary approach to declarations against penal interest assures both the prosecution and the accused that the Rule will not be abused and that only reliable hearsay statements will be admitted under the exception.
The Committee found no need to address the relationship between Rule 804(b)(3) and the Confrontation Clause. The Supreme Court in Crawford v Washington, 541 U.S. 36, 53-54 (2004), held that the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Courts after Crawford have held that for a statement to be admissible under Rule 804(b)(3), it must be made in informal circumstances and not knowingly to a law enforcement officer- and those very requirements of admissibility assure that the statement is not testimonial under Crawford [.] See, e g., United States v. Johnson, 495 F.3d 951 (8th Cir. 2007) (accomplice's statements implicating himself and the defendant in a crime were not testimonial as they were made under informal circumstances to another prisoner, with no involvement of law enforcement; for the same reasons, the statements were admissible under Rule 804(b)(3)); United States v. Franklin, 415 F.3d 537 (6th Cir. 2005) (admissions of crime made informally to a friend were not testimonial, and for the same reason they were admissible under Rule 804(b)(3)).
The amendment does not address the use of the corroborating circumstances for declarations against penal interest offered in civil cases.
The draft amendment was approved at the committee in June 2008, and was released on August 8, 2008 for public comment as indicated by the Report of the Advisory Committee on Evidence Rules. Information on how to submit comments are available at the Rules Committee Website. Public comments must be received by February 17, 2009. After the comments are received, the appropriate committees of the U.S. Judicial Conference will consider them and make a final recommendation on any amendment to the U.S. Judicial Conference.
For a copy of the draft amendment language, and an explanation of the purpose for the amendment, see this explanatory post.
For further background on the amendment, see Part VIII (Sept. 18, 2009), Part VII (May 6, 2009), Part VI (Feb. 19, 2009), Part V (Jan. 21, 2008), Part IV (Nov. 18, 2008), Part II (June 19, 2008), and Part I (June 9, 2008).
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