The Seventh Circuit has long required corroboration for a hearsay statement to be admitted as a statement against the declarant’s interest, regardless of whether the statement is offered by the government or the defendant.

Now, the text of the rule may be changing to conform to the Seventh Circuit’s interpretation.

Under the current Rule 804(b)(3) of the Federal Rules of Evidence, a hearsay statement is admissible when the declarant is unavailable as a witness, and the statement was contrary to the defendant’s interest.

However, the rule adds, “A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

Thus, under the letter of the current Rule, the government need not offer any corroboration to support admission of hearsay under the rule, but a defendant is required to.

Despite the plain text, the Seventh Circuit in 1990 adopted a test that requires corroboration no matter who seeks admission of hearsay under the exception. U.S. v. Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990). The Fifth Circuit has done the same. U.S. v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978).

And last month, the Judicial Conference of the United States adopted the recommendation of the Advisory Committee on Evidence Rules to amend the rule to conform to practice in the Seventh and Fifth Circuits.

Hon. Robert L. Hinke (N.D.Fla.), who chaired the Committee, said the rule change was not controversial. “It operates only against the government, and the government did not oppose it.”

The Committee Note to the proposal states, “A unitary approach to declarations against penal interest assures both the prosecution and the accused that the Rule will not be abused and that only reliable hearsay statements will be admitted under the exception.”

David S. Schwartz, who teaches evidence at the University of Wisconsin Law School, said the amendment would make the rule more fair.

“The concern is that the declarant may have mixed motives in saying, ‘I’m guilty but so is [the defendant].’ The rule is catching up with where better-decided cases have already gone.”

The Note adds, “The Committee found no need to address the relationship between Rue 804(b)(3) and the Confrontation Clause, because the requirements of this exception assure that declarations admissible under it will not be testimonial.”

The note also states that, in assessing whether corroborating circumstances exist, courts should not consider the credibility of the witness who relates the statement. “To base admission or exclusion of a hearsay statement on the witness’s credibility would usurp the jury’s role of determining the credibility of testifying witnesses.”

The report will now go to the Supreme Court, which will consider whether to adopt the recommendations by May of the next year. If the Supreme Court adopts the changes, and Congress takes no action to the contrary by Dec. 1, 2010, the recommendations will become law.