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State v. Torres12/3/1998
y, 87 F.3d 1123, 1131 (10th Cir.) (concluding that, under Lee, custodial confessions by an accomplice are presumptively unreliable and cannot be categorized simply as statements against interest), cert. denied, 117 S. Ct. 527 (1996). Therefore, we turn to the question of whether the exception for declarations against penal interests is firmly rooted for purposes of satisfying the Confrontation Clause.
{30} In determining whether an exception to the hearsay rule is firmly rooted for purposes of the Confrontation Clause, we "consider the exception's historical longevity and widespread acceptance," , and whether the exception is narrowly tailored in such a way as to limit admissibility to statements bearing adequate indicia of reliability. At common law, courts widely recognized that declarations against pecuniary interest constituted an exception to the hearsay rule. 2 Kenneth S. Broun et al., McCormick on Evidence § 316, at 336-37 (John William Strong ed., 4th ed. 1992) [hereinafter McCormick on Evidence]. Such declarations included acknowledgment of a debt, id. § 317, at 338, as well as "acknowledgment of facts which would give rise to a liability for unliquidated damages for tort or seemingly for breach of contract," id. at 339 (footnote omitted). Common law courts routinely admitted these statements because the fact that individuals would be unlikely to damage their own interests gave such statements "the safeguard of special trustworthiness justifying most of the exceptions to the hearsay rule." Id. § 316, at 336. As a result of this "longstanding judicial and legislative experience in assessing trustworthiness," it is without question that the exception for declarations against pecuniary or proprietary interests is a firmly rooted exception to the hearsay rule and poses an insignificant risk of unreliability under the Confrontation Clause.
{31} Nonetheless, common law courts did not extend the application of this exception to declarations against penal interests. In rejecting this common law distinction, however, the drafters of the Federal Rules of Evidence recognized that the exclusion of statements against penal, as opposed to proprietary, interest "is inconsistent with the broad language originally employed in stating the reason and principle of the present exception." 5 John Henry Wigmore, Evidence in Trials at Common Law § 1477, at 358 (James H. Chadbourn rev. 1974); see also Donnelly v. United States, 228 U.S. 243, 278 (1913) (Holmes, J., Dissenting) (relying on Wigmore and stating that "no other statement is so much against interest as a confession of murder"). This approach is now widely accepted in the United States. See generally McCormick on Evidence, supra, § 318. In addition, the United States Supreme Court's interpretation of federal Rule 804(b)(3), which we adopt in this opinion, ensures that declarations against interest will be uniformly reliable. See Aldana, 4 F. Supp. 2d at 1329 (stating that "the rule is satisfactorily constitutionalized by Williamson"). Finally, we note that declarations against penal interests will often meet the criteria for the common law exception for declarations against propriety interest because the admission of criminal liability frequently translates into an admission of civil liability. See McCormick on Evidence, supra, §318, at 340 (stating that some common law courts relied on the connection between criminal and civil liability in admitting criminal confessions by unavailable witnesses). In this case, for example, while Barnett's statements genuinely inculpated him for criminal charges as severe as depraved-mind murder, those statements could also tend to subject Barnett to civil liability for wrongful death. See NMSA 1978, § 41-2-1 (1891) (decl
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