Hearsay and circumstances of its admissibility - Statements ...

Learning Outcomes

This article explains statements against interest under the hearsay rule, including:

• identifying and describing the elements of FRE 804(b)(3) and how they fit within the overall hearsay framework on the MBE
• determining when a declarant is legally “unavailable” under FRE 804(a), and spotting fact patterns where unavailability is not satisfied
• distinguishing statements against pecuniary, proprietary, civil, and penal interest, with emphasis on how each category is tested
• applying the corroboration requirement for statements against penal interest offered to exculpate a criminal defendant, and evaluating indicia of reliability
• analyzing whether multi-part statements are genuinely self-inculpatory under Williamson and separating admissible from inadmissible portions
• differentiating statements against interest from admissions of a party opponent under FRE 801(d)(2), and choosing the correct doctrine on exam questions
• recognizing common MBE traps involving third-party confessions, Confrontation Clause concerns, and misuse of the statement-against-interest exception
• using hypo-based reasoning to decide whether a proffered statement will be admitted or excluded and articulating the governing rule in IRAC form

MBE Syllabus

For the MBE, you are required to understand the hearsay rule and its exceptions, including when statements against interest are admissible, with a focus on the following syllabus points:

• Recognizing the hearsay exception for statements against interest (FRE 804(b)(3))
• Determining when a declarant is “unavailable” under FRE 804(a)
• Distinguishing statements against pecuniary, proprietary, civil, and penal interest
• Applying the corroboration requirement for statements against penal interest in criminal cases
• Differentiating statements against interest from party admissions (opposing-party statements)
• Identifying confrontation and reliability issues when third-party confessions are offered at trial

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT required for a statement against interest to be admissible under the hearsay exception?
   1. The declarant is unavailable.
   2. The statement was against the declarant’s interest when made.
   3. The statement was made under oath at a prior proceeding.
   4. A reasonable person would not have made the statement unless true.
2. In a criminal case, a statement against penal interest is admissible only if:
   1. The declarant is unavailable and the statement is corroborated by circumstances indicating trustworthiness.
   2. The declarant is available and testifies in court.
   3. The statement was made to a police officer.
   4. The statement was made by a party opponent.
3. Which of the following is a key difference between a statement against interest and a party admission?
   1. Only statements against interest require the declarant to be unavailable.
   2. Only party admissions must be against the declarant’s interest.
   3. Only statements against interest can be made by agents.
   4. Party admissions require corroboration in criminal cases.

Introduction

The hearsay rule generally excludes out-of-court statements offered for the truth of the matter asserted. Many exceptions exist, and a core group of them apply only when the declarant is unavailable. One of the most frequently tested in that group is the exception for statements against interest.

This exception rests on a reliability assumption: people ordinarily do not make statements that seriously harm their own financial, property, or criminal interests unless they believe the statements to be true. The Federal Rules capture this idea in FRE 804(b)(3).

Key Term: Hearsay
An out-of-court statement offered to prove the truth of the matter asserted.

Because this exception can admit powerful evidence—especially third-party confessions—MBE questions often turn on small details: whether the declarant is truly “unavailable,” whether the statement really was against the declarant’s interest at the time made, and whether corroboration is required.

Types of Statements Against Interest

A statement against interest is a statement that, at the time it was made, was so contrary to the declarant’s pecuniary, proprietary, civil, or penal interest that a reasonable person in the declarant’s position would not have made it unless believing it to be true.

Key Term: Statement Against Interest
A statement so adverse to the declarant’s financial, property, civil, or criminal interests that a reasonable person would not have made it unless believing it to be true.

Key features:

• The focus is on the declarant’s interest, not the party offering the statement.
• The assessment is made at the time of the statement, not in hindsight.
• The standard is objective: a reasonable person in the declarant’s position.

The rule covers several types of interests:

• Pecuniary interest – money or financial loss
• Proprietary interest – ownership or property rights
• Civil liability – exposure to lawsuits or invalidation of a claim
• Penal interest – exposure to criminal prosecution or increased punishment

The statement need not guarantee liability; it is enough that it had a real tendency to harm the declarant’s legal or financial position.

Declarant Unavailability

For a statement against interest to be admissible, the declarant must be “unavailable” as defined in FRE 804(a). This is a technical concept; simply choosing not to call a witness is not enough.

Key Term: Unavailable Declarant
A person who cannot testify in court because of death, illness, absence that cannot be overcome, privilege, refusal despite court order, or claimed lack of memory.

A declarant is considered unavailable if any of the following apply:

• Privilege – The declarant properly invokes a privilege (e.g., Fifth Amendment) and cannot be compelled to testify.
• Refusal to testify – The declarant refuses to testify despite a court order to do so.
• Lack of memory – The declarant testifies to a claimed inability to remember the subject matter.
• Death or physical/mental illness – The declarant cannot testify due to death or a physical or mental condition.
• Absence – The declarant is absent and cannot be procured by reasonable means (e.g., subpoena, deposition), despite good-faith efforts.

Important limitations:

• If the party offering the statement caused the declarant’s unavailability for the purpose of preventing testimony, that party cannot claim the declarant is unavailable for this exception. (This is closely related to the forfeiture-by-wrongdoing rule.)
• A declarant who is merely outside the jurisdiction but could be deposed is usually not “unavailable” if the proponent made no effort to secure testimony.

Requirements for Admissibility

To admit a statement against interest under FRE 804(b)(3), all of the following must be satisfied:

• The declarant is unavailable.
• At the time it was made, the statement was against the declarant’s pecuniary, proprietary, civil, or penal interest.
• A reasonable person in the declarant’s position would not have made the statement unless believing it to be true.
• In criminal cases, when the statement exposes the declarant to criminal liability and is offered to exculpate the accused, there must be corroborating circumstances clearly indicating trustworthiness.

Key Term: Corroborating Circumstances
Additional facts or evidence that support the reliability of a statement against penal interest in criminal cases.

A few additional points often tested:

• Personal knowledge – The statement must be based on the declarant’s own knowledge. Pure speculation does not qualify.
• Single self-inculpatory statements only – Under Williamson v. United States, “statement” means each individual remark. Only the portions that genuinely inculpate the declarant come in under this exception; neutral or blame-shifting parts of a broader narrative do not.
• No oath requirement – Unlike former testimony, the statement need not have been made under oath or at a formal proceeding.

Types of Interests in Detail

Although the rule uses broad language, exam questions usually focus on three classic categories.

Key Term: Pecuniary Interest
A statement exposing the declarant to financial loss.

Examples:

• “I owe the bank $10,000 and haven’t paid anything.”
• “I took $5,000 from the firm’s client-trust account.”

Key Term: Proprietary Interest
A statement exposing the declarant to loss of property or property rights.

Examples:

• “That land isn’t actually mine; I forged the deed.”
• “The painting really belongs to my sister; I just borrowed it.”

Key Term: Penal Interest
A statement exposing the declarant to criminal liability or increased punishment.

Examples:

• “I robbed the store.”
• “I was the driver in the hit-and-run.”

The rule also reaches statements that expose the declarant to civil liability (such as negligence or breach of contract) or that “have a great tendency to invalidate the declarant’s claim against another” (for example, “I already released that debt”).

Worked Example 1.1

A witness, now deceased, told a friend, “I embezzled the money from the company safe.” At trial, the defendant is charged with the embezzlement, and the defense wants to introduce the deceased witness’s statement to show someone else committed the crime. Is the statement admissible?

Answer:
Yes, if the court finds corroborating circumstances indicating the statement’s trustworthiness. The declarant is unavailable (deceased), the statement directly exposes the declarant to criminal liability (penal interest), and in a criminal case offered to exculpate the defendant, FRE 804(b)(3) requires corroboration. The judge will consider factors such as whether the declarant had personal knowledge, whether the statement was spontaneous, whether it was repeated consistently, and whether there is independent evidence linking the declarant to the crime.

Worked Example 1.2

A missing declarant told a neighbor, “I owe $10,000 to the bank, but I can't pay it.” The bank sues the declarant’s estate to collect the debt and offers the statement as evidence. Is it admissible?

Answer:
Yes. The declarant is unavailable (missing despite reasonable efforts to locate), the statement clearly acknowledges a debt (against pecuniary interest), and a reasonable person would not admit to owing money unless it were true. No corroboration is required because this is a civil case and the statement is not against penal interest.

Worked Example 1.3

Several years ago, now-unavailable Owner told Buyer, “I never really owned Blackacre; the deed from the prior seller was forged.” In a quiet-title action, Buyer offers this statement against Owner’s estate to show that Owner had no title to convey. Is the statement admissible as a statement against interest?

Answer:
Yes. Owner is unavailable, and the statement directly undermines Owner’s claimed property rights in Blackacre, exposing Owner to loss of ownership (proprietary interest) and potential civil liability to anyone who purchased relying on Owner’s title. A reasonable person would not admit to having a forged deed unless believing it to be true. No special corroboration is required because the statement is offered in a civil case and concerns proprietary, not penal, interest.

Statements Against Penal Interest in Criminal Cases

Statements against penal interest are particularly sensitive. When used to exculpate a criminal defendant (for example, third-party confessions), courts demand strong indicia of reliability.

In criminal cases:

• If the statement exposes the declarant to criminal liability, and
• It is offered to exculpate the defendant,

then it is admissible only if corroborating circumstances clearly indicate trustworthiness.

Corroborating circumstances may include:

• The timing and spontaneity of the statement (made close in time to the crime, not in response to leading questions).
• The audience (made to a close confidant versus to law enforcement seeking leniency).
• Whether the statement is truly self-inculpatory rather than shifting blame.
• Whether independent evidence (physical evidence, other witnesses) lines up with the statement.
• Whether the declarant had a motive to lie or to protect someone else.

Courts are especially wary when:

• The declarant implicates both themself and the accused (co-defendant confessions).
• The statement is made during plea negotiations or attempts to bargain for leniency.
• The statement is offered by the prosecution against an accused who never had a chance to cross-examine the declarant—this can also raise Confrontation Clause problems.

Distinguishing from Party Admissions

Statements against interest are easily confused with admissions by a party opponent under FRE 801(d)(2), but they are distinct doctrines with different requirements.

Key Term: Party Admission
Any statement made by a party to the case, offered against that party, regardless of interest or unavailability.

Key differences for exam purposes:

• Who can make the statement?

  • Statement against interest: Any declarant (party or nonparty).
  • Party admission: Only a party or someone whose statement is attributable to the party (agent, co-conspirator, adoptive admission).

• Against interest requirement?

  • Statement against interest: Must be genuinely against the declarant’s pecuniary, proprietary, civil, or penal interest.
  • Party admission: Need not be against interest at all; it can be neutral or self-serving when made.

• Unavailability requirement?

  • Statement against interest: Declarant must be unavailable.
  • Party admission: No unavailability requirement; the statement is nonhearsay under FRE 801(d)(2).

• Corroboration requirement?

  • Statement against penal interest in criminal cases: Corroboration required when offered to exculpate a defendant.
  • Party admission: No corroboration requirement.

Key Term: Pecuniary Interest
A statement exposing the declarant to financial loss.

Key Term: Proprietary Interest
A statement exposing the declarant to loss of property or property rights.

Key Term: Penal Interest
A statement exposing the declarant to criminal liability.

On the MBE, if the statement was made by a party and is offered against that same party, the safer route is usually to treat it as an opposing-party statement under FRE 801(d)(2), not as a statement against interest. Reserve the statement-against-interest analysis primarily for statements made by nonparties (like unavailable witnesses or third-party confessors).

Worked Example 1.4

During a private conversation, X (now unavailable) tells his friend: “I robbed the bank with D. D planned everything and forced me to go along.” At D’s trial for bank robbery, the prosecution offers the entire statement to prove D’s guilt. Is X’s statement admissible under the statement-against-interest exception?

Answer:
Only the truly self-inculpatory portions—“I robbed the bank”—can potentially qualify as a statement against X’s penal interest. The blame-shifting parts (“D planned everything and forced me to go along”) are not against X’s interest and therefore do not come in under FRE 804(b)(3). Moreover, because this is a criminal case and the statement is being offered by the prosecution against D, confrontation issues arise if D never had a prior opportunity to cross-examine X. Under Williamson, courts parse the statement sentence by sentence, admitting only the portions that genuinely inculpate the declarant and excluding those that are neutral or shift blame to others.

Exam Warning

Statements against penal interest offered to exculpate a criminal defendant are viewed with suspicion. Courts require strong corroboration before admitting such statements, and only the self-inculpatory parts of a broader narrative qualify under FRE 804(b)(3). Do not assume that a sweeping “confession” by a deceased or missing witness automatically comes in; analyze availability, interest, self-inculpatory content, and corroborating circumstances.

Revision Tip

Always check declarant unavailability first. If the declarant could testify (or be deposed with reasonable effort), the statement-against-interest exception does not apply. If the declarant is a party and the statement is offered against that party, consider the party-admission rule before turning to statements against interest.

Key Point Checklist

This article has covered the following key knowledge points:

• The statement-against-interest hearsay exception applies only when the declarant is unavailable under FRE 804(a).
• The statement must have been against the declarant’s pecuniary, proprietary, civil, or penal interest when made, judged from the standpoint of a reasonable person in the declarant’s position.
• Only the genuinely self-inculpatory portions of a broader narrative qualify under this exception.
• In criminal cases, statements against penal interest offered to exculpate a defendant require corroborating circumstances clearly indicating trustworthiness.
• Statements against interest are distinct from party admissions: they require unavailability and an “against interest” showing, and may be made by nonparties.
• Party admissions under FRE 801(d)(2) do not require unavailability, need not be against interest, and are treated as nonhearsay.
• Courts are particularly cautious about third-party confessions that implicate both the declarant and the accused, because of reliability and Confrontation Clause concerns.

Key Terms and Concepts

• Hearsay
• Statement Against Interest
• Unavailable Declarant
• Corroborating Circumstances
• Party Admission
• Pecuniary Interest
• Proprietary Interest
• Penal Interest