P. TAGUE, PERILS OF THE RULEMAKING PROCESS:

THE DEVELOPMENT, APPLICATION, AND UNCONSTITUTIONALITY OF RULE 804(b)(3)'S PENAL INTEREST EXCEPTION

69 Geo. L.J. 851, 862-863, 971 (1981)

The penal interest exception rests on the assumption that no one would knowingly implicate himself falsely in criminal conduct. Testing the validity of that assumption in a particular case involves at least six evidentiary questions....

First, is a statement against a declarant's penal interest because of the "plain" meaning of the words spoken, the litigation effect of the statement, or the declarant's motivation to tell the truth? If a court concentrates on the words spoken, it probably will limit admissibility to confessions ("I am guilty of murdering Smith") or to explicit factual assertions ("I shot Smith"). If, however, the court analyzes the litigation effect of the statement, it might permit the introduction of opinions ("The defendant is not guilty"), statements whose relevance depends upon an inference ("I was present when Smith was shot"), or comments about the defendant's complicity related to the statement ("X and I, but not the defendant, committed the crime").

Second, must the statement have been "against interest" at the time the declarant made it? If a court admits only statements that are confessional in nature, it would focus on when the declarant made the statement. If, however, the court analyzes the litigation effect of the statement, its inquiry could encompass a greater time period.

Third, must the declarant have understood that his statement was "against interest"? Courts usually use a "reasonable man" inquiry because they condition admission on the declarant's unavailability to testify. If, however, at the moment he spoke or at some later point the declarant says that he understood the "against interest" nature of his statement, should a court reject the "reasonable man" test and focus instead on the declarant's apparent subjective understanding?

Fourth, must the statement substitute the declarant for the defendant as the culprit? If so, a court should exclude the statement if it is relevant only to the defendant's degree of culpability, not his innocence. A statement that exonerated the defendant of complicity in a crime committed by more than one person is similarly inadmissible because this kind of statement provides the Government with a reason to charge the declarant as well as the defendant.

Fifth, may the Government use the exception to introduce a statement that implicates both the declarant and the defendant? A Government-offered statement presents the same "collateral statement" problem as does the defense-offered statement in the fourth issue.

Sixth, must the proponent introduce other evidence to support the truthfulness of either the witness' report of the statement or the statement itself? Demanding corroborating evidence of either sort suggests uncertainty about the declarant's motivation or his sincerity....

Five mechanical questions arise when the defendant offers a penal interest statement. First, should the judge or the jury decide if the statement satisfies the "against interest" tests of the rule's first sentence and the corroboration test of the rule's second sentence? Second, may the judge consider the trustworthiness of the reporting witness in deciding whether to admit the statement? Third, what is the defendant's burden of proof under the separate tests of the rule's first and second sentences? Fourth, what evidence may the judge consider in deciding whether to admit the statement? Finally, what evidence may the jury consider in deciding how to evaluate the declarant's statement?...


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