Evidence Law. Hearsay exception which provides that the declarations of a person unavailable as a witness are admissible if made against that person’s pecuniary, proprietary or penal interest.  See, e.g., Fed. R. Evid. 804(b) (“The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness . . . . A statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and [the statement] is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.”); Gichner v. Antoni Troiano Tile and Marble Co., 410 F.2d 238, 241-42 (D.C. Cir. 1969) (holding that out-of-court statements that are hearsay may still be admitted where the declarant is unable to testify at trial and statements (1) concern a matter of which declarant was personally cognizant, (2) were against his pecuniary and proprietary interest, and (3) were made with no probable motive to falsity); Cal. Evid. Code § 1230 (“Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk or making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”).


In order to establish the foundational requirement of “unavailability,” a prerequisite to the “declaration against interest” hearsay exception, the proponent of the evidence must show that the declarant:

1) is exempted by ruling of the court on the ground of privilege from testifying concerning the declarant’s statement; or

2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or

3) testifies to a lack of memory of the subject matter of the declarant’s statement; or

4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means.

Statement Against Interest

In determining whether the statement was sufficiently against the declarant’s interest, a court must consider the circumstances surrounding the statement and answer whether a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.

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