68. Is the statement by the friend to his mother admissible?

A statement of a person, now unavailable as a witness, may be admissible if it was against that person's pecuniary, proprietary, or penal interest when made. To be admissible under the statement against interest exception, the statement must have been so against the declarant's 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, that a reasonable person in the declarant's position would have made the statement only if she believed it to be true. Fed. R. Evid. 804(b)(3). A statement against interest differs most significantly from an opposing party's statement in that, under the statement against interest exception, the statement must be against interest when made, and the unavailable declarant whose statement is admitted may be a stranger to the litigation rather than a party.

To qualify as a statement against interest, the following requirements must be met: (i) the statement must have been against pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant's position would have made it only if she believed it to be true; (ii) the declarant must have had personal knowledge of the facts; (iii) the declarant must have been aware that the statement was against her interest and she must have had no motive to misrepresent when she made the statement; and (iv) the declarant must be unavailable as a witness. Moreover, the statement must be «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.» Fed. R. Evid. 804(b)(3).

In criminal cases, it may be argued that the use of hearsay evidence violates the accused's right to confront and cross-examine the witnesses against him. Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) when: (i) the statement is offered against the accused in a criminal case; (ii) the declarant is unavailable; (iii) the statement is «testimonial» in nature; and (iv) the accused had no opportunity to cross-examine the declarant's «testimonial» statement prior to trial. Crawford v. Washington, 541 U.S. 36 (2004); Davis v. Washington, 547 U.S. 813 (2006).

The following types of statements are considered «testimonial» under Crawford and Davis: statements made during the course of police interrogations, including interviews by police at crime scenes, as long as the focus of the interrogation is on investigating a completed crime, not on managing an ongoing emergency. If a statement is not made to a law enforcement agent, it is less likely to be found to be testimonial. A statement to a friend or family member will rarely be considered testimonial because it is unlikely that the purpose of the questioning was to create a substitute for in-court testimony. See Crawford v. Washington, 541 U.S. 36 (2004).

C is correct. A statement against interest may be admissible as an exception to the hearsay rule when the statement is against a now-unavailable declarant's pecuniary, proprietary, or penal interest when made. In this case, the friend's statement was against his penal interest when he made it given that he was implicating himself in a robbery. It was also based on his personal knowledge of the facts as he experienced them, he would have been aware that it was against his interest by admitting he was involved in the robbery, and he had no motive to misrepresent it to his mother. Finally, he is now unavailable as a witness.

However, even if a statement meets an exception to the hearsay rule, it must also satisfy the Confrontation Clause. A statement will not be admitted against the accused in a criminal case when: (i) the declarant is now unavailable; (ii) the statement was «testimonial» in nature; and (iii) the accused had no opportunity to cross-examine. Here, the friend's statement to his mother would be considered non-testimonial because it was not made in the course of a police interrogation or to help with an ongoing emergency, but simply made privately to his mother. There is no indication that the conversation with his mother was to create a substitute for subsequent in-court testimony. Therefore, the statement is not barred by the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36 (2004).

A is incorrect. Although an inculpatory statement against one's penal interest may present a problem under the Confrontation Clause, such a statement will not necessarily be unconstitutional. Here, the statement by the friend is admissible because it is not considered testimonial under Crawford and Washington, which means it does not violate the Confrontation Clause.

B is incorrect. It is true that FRE 804(b)(3) requires a statement against interest to have corroborating evidence in a criminal case. However, there are corroborating circumstances here. The statement was made spontaneously to a family member shortly after the crime and is corroborated by other evidence the prosecutor has «indicating that the defendant and the friend were together on the morning of the robbery.»

D is incorrect. This answer reaches the correct answer with the wrong reasoning. The friend's state of mind is not at issue here. The issue is whether the friend, now unavailable, made a reliable statement that was against his penal interest when he made it, admissible against the defendant in this case. Therefore, the goal of introducing the mother's testimony is not to establish the friend's state of mind, but rather, to admit it against the defendant as inculpatory evidence.