709.4Statement Against Interest [Rule 804(b)(3)]
- A statement that exposed the declarant to criminal liability is not barred by the hearsay rules, as long as the declarant understood the incriminating potential of the statement when it was made, and there are corroborating circumstances to support the trustworthiness of the statement.
- Collateral and non-inculpatory statements made in connection with a statement against interest also are admissible if they are “integral” to the incriminating statement.
The Basic Rule
Rule 804(b)(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 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. 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.
G.S. 8C-804(b)(3). “The circumstantial guaranty of reliability for declarations against interest is the assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true.” G.S. 8C-804(b)(3), Official Commentary.
Therefore, if the declarant is unavailable as a witness pursuant to Rule 804(a) and the declarant’s statement satisfies the two criteria for admissibility discussed below, the statement is not barred by the hearsay rules. See generally State v. Choudhry, 206 N.C. App. 418 (2010), aff’d as modified, 365 N.C. 215 (2011), quoting State v. Dewberry, 166 N.C. App. 177 (2004).
Requirements for Admissibility
Against Declarant’s Interest
The first admissibility requirement contains two distinct, but connected, elements.
a. Exposed Declarant to Liability
To qualify under this rule, the statement must be one that exposed the declarant to criminal liability. The statement does not, however, have to be related to the same criminal matter currently at issue, nor does it have to be made directly to a law enforcement officer. See, e.g., State v. Speight, 213 N.C. App. 38 (2011) (upon arrest for sex offense and other charges, declarant’s statement to officer that he was only a “B&E guy” was admissible as a statement against interest); State v. Kimble, 140 N.C. App. 153 (2000) (non-testifying codefendant’s statement inculpating himself in a separate plot to murder his wife for insurance money was admissible as a statement against interest); State v. Tucker, 331 N.C. 12 (1992) (recognizing that under Rule 804(b)(3), statements against interest may include statements “that subject the declarant to criminal liability for offenses other than those for which the defendant is on trial”); State v. Levan, 326 N.C. 155 (1990) (statements against interest were admissible even though they were made to individuals other than law enforcement personnel); State v. Singleton, 85 N.C. App. 123 (1987) (“such statements ‘must have had the potential of actually jeopardizing the personal liberty of the declarant at the time ... made....’”), quoting State v. Haywood, 295 N.C. 709 (1978).
If a statement was ostensibly incriminating but did not subject to the declarant to any real criminal liability or risk (e.g., statute of limitations has expired, declarant was already prosecuted for the conduct, or declarant received immunity for the offense under a plea deal), the statement does not qualify under this rule. See, e.g., State v. Pickens, 346 N.C. 628 (1997) (statement did not satisfy the admissibility criteria where declarant had already pled guilty and been sentenced for the offense referenced in the statement); State v. Tucker, 331 N.C. 12 (1992) (anonymous letter was not admissible under this rule because its anonymity meant that the declarant was not exposing him- or herself to any criminal liability); State v. Singleton, 85 N.C. App. 123 (1987) (declarant’s statement about taking nude pictures with another person did not engender any criminal liability, so it did not fall under the rule).
b. Declarant Understood Potential
The declarant must also have understood the potential risk and liability of making the statement at the time he or she made it. See, e.g., State v. Choudhry, 206 N.C. App. 418 (2010) (to be admissible, statement “‘must be such that the declarant would understand its damaging potential (i.e. that a reasonable man in declarant's position would not have said it unless he believed it to be true)”) (internal quotation omitted); State v. Barnes, 345 N.C. 184 (1997) (declarant’s statement “tended to subject him to criminal liability, and he no doubt knew the consequences of acknowledging his involvement in an attack on a law enforcement officer”); see also State v. Eggert, 110 N.C. App. 614 (1993) (excluding statement on other grounds, but holding that the defendant’s argument that the declarant would not have understood the potential liability of his statement simply because it was “made to another prisoner outside the presence of law enforcement officers or personnel” was “wholly without merit”).
Corroboration of Trustworthiness
The second requirement to admit a statement against interest in a criminal case is that there must be “corroborating circumstances” that “clearly indicate” the statement is trustworthy. G.S. 8C-804(b)(3). That corroboration can come from any other admissible evidence presented in the case, as long as there is “some other independent, nonhearsay indication of the trustworthiness” of the statement. State v. Artis, 325 N.C. 278 (1989), vacated on other grounds by 494 U.S. 1023 (1990) (emphasis added) (noting that two hearsay statements could not be used to “bootstrap” each other into admissibility); accord, State v. Wardrett, 145 N.C. App. 409 (2001) (“the fact that there are multiple hearsay statements does not indicate the trustworthiness of any one of the individual statements”). See, e.g., State v. Kimble, 140 N.C. App. 153 (2000) (sufficient corroboration for statement was established through evidence about defendant’s efforts to take out a life insurance policy of victim, victim’s other admissible statements regarding her fear of the defendant, and corroborating testimony from a live witness); State v. Levan, 326 N.C. 155 (1990) (“…the facts surrounding Terry Kurley's death, Charles Feimster's efforts to flee Statesville, and non-hearsay testimony regarding defendant's involvement with drugs all substantiate the trustworthiness of the admitted statements,” along with the fact that “repetition of these hearsay statements in open court [was] against the penal interest of the witnesses testifying”).
Conversely, when the surrounding circumstances or other evidence in the case reveal a lack of trustworthiness (e.g., the declarant had a motive to lie or the statement conflicts with other reliable evidence in the case), that factor weighs against allowing the statement into evidence. See, e.g., State v. Choudhry, 206 N.C. App. 418 (2010), aff’d as modified, 365 N.C. 215 (2011) (declarant’s statement to law enforcement officers regarding events surrounding murder was not admissible at defendant's murder trial as a statement against penal interest, due to lack of evidence presented to corroborate statement and declarant’s motive to give a false statement – declarant also fled country before trial and was unavailable to testify); State v. Dewberry, 166 N.C. App. 177 (2004) (no abuse of discretion in excluding statement where declarant had a motive to fabricate, he was insulated from prosecution for the more serious offense, and the statement was inconsistent with other evidence in the case); State v. Wardrett, 145 N.C. App. 409 (2001) (no error in excluding statements where defendant failed to show “any other independent evidence offered at trial, aside from the excluded testimony in question, establishing corroborating circumstances which would clearly indicate the trustworthiness of the statements”).
Statements against a declarant’s interest are not always made in isolation. Such statements often arise in the course of a longer conversation or interview. They may, therefore, overlap with collateral statements that are not directly against the declarant’s interest but provide important context or background to understand the primary statement. These kinds of “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.” State v. Wilson, 322 N.C. 117 (1988); accord, State v. Levan, 326 N.C. 155 (1990) (“non-incriminating collateral statements are also admissible under Rule 804(b)(3) when they are integral to the larger statement more clearly admissible as being directly against declarant's penal interest”). Qualifying collateral statements are admissible even if they incriminate the defendant along with the declarant. See State v. Kimble, 140 N.C. App. 153 (2000) (“our Supreme Court does not require that collateral remarks inculpating the defendant be redacted from an out-of-court statement that also contains self-inculpating remarks in order to admit the statement under Rule 804(b)(3)”).
Applying the Federal Rules of Evidence, the United States Supreme Court has held the opposite, concluding that non-inculpatory collateral statements are not admissible along with a statement against interest. See Williamson v. United States, 512 U.S. 594 (1994) (holding that “the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory”). The Fourth Circuit has recognized and applied this limitation in subsequent federal cases involving statements against interest. See, e.g., United States v. Dargan, 738 F.3d 643 (4th Cir. 2013) (applying Williamson, and recognizing that statements admissible under Rule 804(b)(3) are restricted to those which are “individually self-inculpatory”); United States v. Jordan, 509 F.3d 191 (4th Cir. 2007) (similar ruling, noting “[t]he fact that a person is making a broadly self-inculpatory confession does not make more credible the confession's non-self-inculpatory parts”).
To date, no North Carolina appellate cases have directly considered whether the United States Supreme Court’s ruling in Williamson necessitates a change in state practice on this issue. See generally State v. Barnes, 345 N.C. 184 (1997) (noting Williamson and the concern that collateral statements which are not self-inculpatory are inherently less trustworthy, but declining to decide the issue because the statements at issue were all self-inculpatory and therefore did not raise “the taint of ‘special suspicion’ reserved for those statements aimed at implicating another defendant while exonerating the declarant”).