7. Declarations Against Interest by Non-parties

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 160-164

Contenidos

• 7. 1) Declarations against Pecuniary and Proprietary Interests.
• 7. 2) Declarations against Penal Interest.

Page 160

The common law recognizes a hearsay exception for statements made against the declarant’s interest. Essentially the exception applies to non-parties. Declarations against interest made by parties are admissions, and, as we have seen, fall under their own exception. The assumption underlying this exception is that people do not readily make statements that admit facts contrary to their interests unless those statements are true. The common law judges confined the exception to declarations made against pecuniary or proprietary interests, and the courts were loath to extend the exception to statements made against penal interest. This attitude changed in Canada with the Supreme Court’s decision in R. v. O’Brien.¹⁷³However, declarations against penal interest are treated with far more caution than is the case for declarations against pecuniary or proprietary interest.

7. 1) Declarations against Pecuniary and Proprietary Interests

A declaration against pecuniary or proprietary interest may be admitted where

1) the declarant is unavailable to testify;

2) the statement when made was against the declarant’s interest; and

3) the declarant had personal knowledge of the facts stated.

Page 161

Necessity flows from the unavailability of the declarant. Reliability is founded on the fact that the declarant, who is aware of adverse facts, admits them. The clearest case is the acknowledgment of a debt owed. Yet, acknowledgment of a debt paid is also accepted as against the declarant’s interest, in that the declarant is admitting that the debt has been extinguished or reduced. In civil cases, the courts seem to seize upon any statement against pecuniary or proprietary interest - regardless of the amount owed. In Gromley v. Canada Permanent Trust Co. a statement admitted as against interest involved $4.¹⁷⁴More rigorous scrutiny of reliability is warranted in a criminal case. An appropriate threshold for reliability is found under rule 804(b)(3) of the Federal Rules of Evidence in the United States, where a statement against interest is one that is "so far contrary to the declarant’s pecuniary or proprietary interest

. . . that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true."

In principle the declarant need not realize that the statement may be used against him. For example, an entry in a diary states, "I just borrowed $100 from John and I have no intention of paying him back." This is a statement against interest, notwithstanding that the writer never ever considered that the diary entry would be used against him.

Professor Morgan explained the exception in the following terms:

The theory on which the rule rests is that a person will not concede even to himself the existence of a fact which will cause him substantial harm, unless he believes that the fact does exist. Whether he realized that in making the statement he was creating evidence against himself is immaterial upon the question of admissibility, however pertinent it may be in determining the persuasive value of the declaration.¹⁷⁵Not all declarations against interest are clear-cut. They may in fact contain statements quite favourable to the maker’s interest. For example, suppose that the entry in the diary read: "I just borrowed $100 from John and I have no intention of paying him...