By Michael T. Warshaw, Esq.

On September 15, 2023, the NJ Supreme Court ordered an amendment to the Rules of Evidence, and because it was not acted on by the Legislature, the amendment became effective on July 1, 2024. The Statement Against Interest exception to the hearsay rules was removed from NJRE 803(c)(25) and moved it to NJRE 804(b)(3). The net effect was to require the declarant of the statement against interest to be “unavailable” to testify in person at the proceeding before it could be used. The stated purpose was to bring NJ’s Evidence Rules in line with the Federal Rules of Evidence. The rule numbers are now the same, as well.

The 1991 Supreme Court Committee Comments state that Fed. R. Evid. 804(b)(3) was not adopted as part of Rule 804(b) because such statements are made admissible regardless of the declarant’s availabilty, due to their inherent reliability. In 1991, that made them admissible, even if the declarant was available as a witness. 

In July 2023 the N.J. Supreme Court announced the proposed change and the hosting of a judicial conference to consider it. Among the reasons advanced for the change was the following:

New Jersey differs from the federal government and 47 other states – all but Kansas and Texas – by not requiring that the person who makes a statement against interest be unavailable to testify before the statement can be admitted into evidence. It further differs from the federal government and 44 other states by not including a requirement that the hearsay statement be supported by corroborating circumstances that indicate its trustworthiness. New Jersey and Kansas are the only states that have neither of these provisions.

It seems to this writer that this will not cause a huge change in the way cases will be tried. Its impact will probably be felt more in the criminal sphere than it will in civil, owing to Confrontation Clause considerations. The change simply moved the rule from the exceptions that did not depend upon the unavailability of the declarant (N.J.R.E. 803) to those only available when the declarant is unavailable (N.J.R.E. 804). This move has no impact on the use of a prior inconsistent statements in cross examination (N.J.R.E. 803(a)), nor on the use of a statement by a party-opponent (N.J.R.E. 803(b)), nor upon any of the other Rule 803 exceptions to the hearsay exclusionary rule.

The relocation of this rule seems to bring the rule back to where it was originally intended to be. (See: Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence (Gann) at 804): N.J. R.E. 803(b)(3) “Statement Against Interest. [Adopted as Rule 803(c)(25)].” Thus the rule does not, it seems, create a drastic change in the Law of Evidence.

In order for such statements to be admissible under the relocated rule, these basic requirements need to be satisfied:
1. The declarant must be unavailable (as defined in N.J.R.E. 804 (a)
2. The statement must fall within the proper exceptions (in this case N.J.R.E. 804(b)(3)).
3. The statement must be supported by sufficient indicia of reliability.
4. Consideration needs to be afforded to the Sixth Amendment Confrontation Clause.
5. An additional element needs to be present: The declarant must also have understood the potential risk and liability of making the statement at the time it was made.

The rule deals with statements allegedly made to a third party who would testify to the statement’s content, such as a witness might make to a police officer. It seems that the intent of the change is to require the declarant to be called to address the alleged statement against interest, unless otherwise unavailable. Thus the declarant is no longer facing the possibility of having to testify to deny the attributed statement, but must be put on the stand in the first instance, not called to defend against it.

There are other considerations in this rule that are beyond the scope of this short comment, but for this writer, the takeaway is that changing the rule to require witness unavailability should not have a major impact on trial practice in New Jersey.

Michael T. Warshaw has been a trial lawyer since 1976, trying hundreds of cases in all courts in NJ.
He is a shareholder at Zager Fuchs, P.C.