Reining in the against-interest exception.

The exception to the hearsay rule for statements against the declarant's penal interest has bred a long-running debate. Typical statements offered under the exception include both the declarant's admissions of criminal activity and assertions either implicating or exonerating the accused.

The statements admitting the declarant's guilt are judged reliable because they are contrary to interest. Standing alone, the declarant's admission of his own crimes is not of much interest at the trial of the accused. But the parts of the declarant's statement that link the accused to the crime typically are not themselves against interest.

This tension between the theory of the exception and the evidence actually offered under it has led to three competing interpretations. The great evidence scholar John Wigmore took the broadest view of the exception. In his opinion, people confessing wrongdoing, whether to the police or to trusted confederates, tend to tell the truth even about matters that do not bear on their immediate interest. The declarant's mind falls into the habit of truth, giving credibility not just to the speaker's confession but to the entire narration of which the confession is only a part. (See 5 John Wigmore, Evidence [section] 1465 (3d ed. 1940).)

Dean Charles McCormick took a narrower view. McCormick would admit some parts of the declarant's story beyond the confession itself, but when these collateral statements went beyond neutral detail and became arguably self-serving, they should be excluded. (See Charles T. McCormick, McCormick on Evidence [section] 279 at 825 at (Edward W. Cleary ed., 3d ed. 1984).)

A still narrower view was advanced by Bernard Jefferson in an exhaustive treatment of the against-interest exception. Because only the statements actually against the declarant's interest are trustworthy, "courts are not justified in admitting self-serving statements merely because they accompany disserving statements, and a neutral collateral statement should fare no better." (Bernard S. Jefferson, Declarations Against Interest: An Exception to the Hearsay Rule, 58 Harv. L. Rev. 1, 60 (1944).)

Federal Rule

The Federal Rules of Evidence did not expressly adopt any of these competing approaches to collateral statements. Instead, Rule 804(b)(3) provides only that, when the declarant is unavailable, a "statement which ... at the time of its making ... so far tended 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" may be admitted.

When a statement against penal interest is offered to exculpate the accused, it "is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." Thus, the rule itself is silent regarding the admissibility of collateral statements included in a self-incriminating discourse.

The Federal Rules of Evidence Advisory Committee notes indicate that a third-party confession "may include statements implicating [the accused], and under the general theory of declarations against interest they would be admissible as related statements." The laconic note, however, does not elaborate on how closely the self-incriminating and accusatory statements must interlock before they will be construed as "related statements."

The notes also cite McCormick's treatise, which took a limited view of the admissibility of collateral statements, as authority