TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: Aug. 5, 2011
RE: Rule 804, N.D.R.Ev, Hearsay Exceptions; Declarant Unavailable
The Committee discussed proposed amendments to Rule 804 at the April meeting. The proposed amendments were based on changes to Fed.R.Ev. 804 designed to improve the clarity of the statement against interest hearsay exception and to require corroborating circumstances when the exception is used against a defendant in a criminal case.
Members of the Committee pointed out at the April meeting that statements against interest cannot be used against a criminal defendant under the language of the existing North Dakota rule. Members said that revising the rule to be consistent with the federal amendments would result in a change to North Dakota practice.
The existing language of N.D.R.Ev. 804 was taken directly from Uniform Rule of Evidence 804. A copy of the uniform rule is attached. The former federal rule included the language of the uniform rule, but it omitted the final sentence: "A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both the declarant and the accused, is not within this exception." Consequently, the federal rule was interpreted as allowing federal prosecutors to use hearsay statements against interest to implicate criminal defendants without requiring corroborating circumstances.
The Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), focused on the admission in a Washington state court of a hearsay statement against interest that implicated a criminal defendant. The Court held that admission of the statement violated the defendant's Sixth Amendment right to be confronted with the witnesses against him. The witness who made the statement was the defendant's spouse, who was unavailable to testify at trial under Washington's marital privilege.
After Crawford, amendment of Fed.R.Ev. 804 was necessary to establish a higher standard for admission of statements against interest when used to implicate a defendant. The Supreme Court approved the amendment to Fed.R.Ev. 804, so requiring the prosecution to provide corroborating circumstances for a statement against interest presumably is enough to meet Confrontation Clause requirements under Crawford.
Because N.D.R.Ev. 804 does not allow admission of statements against interest to implicate a criminal defendant, it is not necessary to amend N.D.R.Ev. 804 to comply with Crawford.
The Committee's minutes from 1976 do not include any record of the discussion that led the Committee to include the whole of the uniform rule in Rule 804, including the limit to admission of statements against interest when offered against a defendant. That the Committee knew what it was doing when it adopted the language seems clear from the explanatory note, which provides in part: "Rather than proceed on a case-by-case basis, it was decided to preclude admission of such statements entirely."
Excerpts relating to Rule 804 from the Committee's 1976 minutes are attached. Most of the explanatory note language drafted by the Committee in 1976 (which is shown in the September 1976 minutes excerpt) was dropped from the rule when it was amended in 1998, but the explanatory note on statements against interest was retained.
Proposed amendments to Rule 804 that incorporate the federal form and style changes and retain the rule's longstanding limit on use of statements against interest against a defendant are attached.