Hearsay Exceptions: Statements Against Penal Interest

In this, my last post in a long series on hearsay exceptions, I’ll address the Rule 804 exception for statements against penal interest.

Rule 804(b)(3) creates a hearsay exception for 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 him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true.” It further provides that a “statement tending to expose the declarant to criminal liability is not admissible in a criminal case unless corroborating circumstances clearly indicate the trustworthiness of the statement.” N.C. R. Evid. 804(b)(3); State v. Levan, 326 N.C. 155, 164 (1990) (noting that this requirement is designed to avoid fabrication of statements against penal interest which might exculpate a defendant). The courts have repeatedly stated that to be admitted under this exception, a statement concerning criminal liability:

• must be against the declarant’s penal interest, and
• corroborating circumstances must insure the statement’s trustworthiness.

See, e.g., State v. Dewberry, 166 N.C. App. 177, 181 (2004); State v. Choudhry, 206 N.C. App. 418, 422 (2010) (quoting Dewberry). The subsections below explore these requirements.

Against the Declarant’s Penal Interest. By its terms, the Rule requires that the statement “so far tended to subject [the declarant] to . . . criminal liability . . . , that a reasonable man in his position would not have made the statement unless he believed it to be true.” N.C. R. Evid. 804(b)(3). The statement must actually subject the declarant to criminal liability. See State v. Eggert, 110 N.C. App. 614, 620 (1993) (where the declarant did not admit that contraband belonged to him, his statement about it was not against his penal interest; State v. Singleton, 85 N.C. App. 123, 129 (1987) (statement that the declarant took nude pictures with another person did not subject him to criminal liability). There is no requirement that the statement must subject the declarant to criminal liability for the offense currently being tried. State v. Tucker, 331 N.C. 12, 26 (1992). Nor is there a requirement that the statement be made in the presence of law enforcement officers. Eggert, 110 N.C. App. at 619. However, a statement is not against penal interest when the declarant had entered a guilty plea and already was serving a sentence for the admitted-to conduct. State v. Pickens, 346 N.C. 628, 642 (1997). Also, an anonymous letter does not satisfy this requirement because a declarant who conceals his or her identity does not tend to expose himself or herself to criminal liability. Tucker, 331 N.C. at 25.

The statement must be such that the declarant would understand its damaging potential. Tucker, 331 N.C. at 25; see, e.g., State v. Barnes, 345 N.C. 184, 215 (1997) (the declarant “no doubt knew the consequences of acknowledging his involvement in an attack on a law enforcement officer”). Some courts have held that statements made to law enforcement officers or prosecutors as part of plea bargain negotiations do not meet this element because a reasonable person would not believe that statements made in this context will subject the declarant to criminal liability. Tucker, 331 N.C. at 25 (1992) (not deciding the issue because there was no evidence that plea negotiations were underway).

In State v. Wilson, 322 N.C. 117, 133-34 (1988), the North Carolina Supreme Court held that statements that are not directly self-inculpatory are admissible as statements against penal interest when they are part of the same narrative as a statement that was against interest. In Wilson, the defendant acknowledged that the portion of the declarant’s statement implicating himself in a robbery was covered by the exception. He argued however that the declarant’s statements that the defendant also participated in the robbery and later threatened to kill the declarant if he told anyone, were “collateral” to the declarant’s statement against interest and thus should have been excluded. Looking for guidance to federal law, the court rejected this argument, concluding: “[W]e adopt the view of several federal courts that such collateral statements are admissible even though they are themselves neutral as to the declarant’s interest if they are integral to a larger statement which is against the declarant’s interest.” Id. at 133; see also State v. Levan, 326 N.C. 155, 164 (1990) (citing Wilson for the proposition that non-incriminating collateral statements are admissible). As pointed out by one treatise, Robert P. Mosteller et al., North Carolina Evidentiary Foundations 11-81 n.55 (2^nd ed. 2009), the United States Supreme Court subsequently interpreted the parallel federal evidentiary rule and held that such “collateral” statements are inadmissible under this hearsay exception. Williamson v. United States, 512 U.S. 594, 604 (1994). The North Carolina Supreme Court does not appear to have directly addressed the implications of that ruling on its earlier interpretation of North Carolina’s statement against interest exception. State v. Barnes, 345 N.C. 184, 216 (1997) (noting the defendant’s argument regarding Williamson but not addressing the conflict directly because the statement at issue, “we f––––– up a police,” clearly implicated the declarant along with the defendant). At least one post-Williamson court of appeals decision has cited the Wilson rule, albeit without mentioning Williamson. State v. Kimble, 140 N.C. App. 153, 161 (2000).

Independent, Non-Hearsay Indications of Trustworthiness. In a criminal case, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the statement’s trustworthiness. N.C. R. Evid. 804(b)(3). To satisfy this requirement, there must be “some other independent, nonhearsay indication” of the statement’s trustworthiness. State v. Artis, 325 N.C. 278, 305-06 (1989). The corroborating circumstances may include evidence presented at trial. However, evidence cutting against trustworthiness, such as a motive for the declarant to have offered a false statement, will weigh against admission. State v. Dewberry, 166 N.C. App. 177, 182-83 (2004).