dissenting.
In this case, we address, as a matter of first impression, a difficult and subtle question involving the interplay of the hearsay rule and the state and federal Confrontation Clauses. The specific question is whether a statement by a nontestifying hearsay declarant, 1 made to a person known by the declarant to be a law enforcement officer while in police custody, that inculpates a criminal defendant is admissible under the statement-against-penal-interest exception to the hearsay2 rule, Oregon Evidence Code (OEC) 804(3)(c),3 and, if it is admissible, whether admission of such evidence violates the defendant’s rights to confrontation guaranteed by Article I, section 11, of the Oregon Constitution4 and the Sixth Amendment to the Constitution of the United States.5
*634The majority holds that the statements, although hearsay, were properly admissible.
In my view, Officer Mar ley’s testimony as to declarant’s (Rimer’s) unsworn statement inculpating defendant, made while in police custody to a person known by the declarant to be a law enforcement officer, was not sufficiently contrary to her penal interest to qualify for admission under the statement-against-penal-interest hearsay exception, OEC 804(3)(c). 6 Moreover, the admission of such evidence violated defendant’s confrontation rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the Constitution of the United States. I, therefore, respectfully dissent.
I. OEC 804(3)(c)
While hearsay statements generally are not considered adequately reliable to be admitted at trial, the statement-against-penal-interest exception to the hearsay rule is based on both necessity and reliability. The need to resort to hearsay is met by the showing of the declarant’s unavailability as a witness at trial.7 The personal knowledge and the disserving nature of the statement tend to increase apparent reliability. The psychological assumption and common-sense belief is that a person generally does not rashly or falsely make a statement that is against his or her penal interest, i.e., that subjects that person to criminal prosecution.8 See Legislative Commentary to OEC 804(3)(c) *635(;reprinted in Kirkpatrick, Oregon Evidence 635 (2d ed 1989)) (“[a] statement against interest carries a circumstantial guaranty of reliability, because people generally do not make statements that are damaging to their interests unless they believe they are true”).
The scope of the statement-against-penal-interest exception must be commensurate with the rationale that excepts it from the hearsay rule. Thus, only a “statement which was at the time of making * * * so far tended to subject [the declarant] to * * * criminal liability * * * that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true” may be admitted as a statement against penal interest under OEC 804(3)(c). The statement-against-penal-interest exception does not make admissible any statement of a declarant that is not itself against the penal interest of the declarant. The reliability of a statement against penal interest emanates from the against-penal-interest nature of the particular statement that is based on personal knowledge and not from the notion that the declarant is in a trustworthy frame of mind for all statements that she makes at the same time (i.e., for statements that are not against her penal interest).
The rationale for the exception to the hearsay rule for statements against penal interest is incorporated as prerequisites to admissibility at trial. Before an out-of-court statement is admissible as a statement against penal interest under OEC 804(3)(c), the proponent of the evidence must show by a preponderance of the evidence, after appropriate objection has been raised, (1) that the declarant is “unavailable as a witness,” State v. Thoma, 313 Or 268, 276, 834 P2d 1020 (1992) (citing State v. Pinnell, 311 Or 98, 114, 806 P2d 110(1991)), and (2) that the “statement* * * at the time of its making * * * so far tended to subject the declarant to * * * criminal liability * * * that a reasonable person in the declar-ant’s position would not have made the statement unless the person believed it to be true.” Whether these factual preconditions to admissibility of evidence under OEC 804(3) (c) have been established are preliminary questions of fact to be determined by the trial court under OEC 104(1). State v. Carlson, 311 Or 201, 211-13, 808 P2d 1002 (1991).
*636I agree with the majority that the first factual precondition to admissibility under OEC 804(3)(c), unavailability of the declarant (Rimer), was met. Rimer was unavailable as a witness under OEC 804(l)(e) because she was absent from the trial, the proponent of her statement was unable to procure her attendance by process or other reasonable means, and there is nothing to suggest that the prosecution, as the proponent of her statement, was responsible for her absence. See OEC 804(2) (a declarant is not unavailable as a witness for purposes of the hearsay exceptions set forth in OEC 804 if the proponent of the declarant’s statement is responsible for the declarant’s absence).
The crucial inquiry in this case is whether the second factual precondition to admissibility under OEC 804(3)(c) has been met, i.e., whether the declarant’s unsworn, out-of-court statement inculpating defendant was in fact truly against her penal interest at the time she made the statement to a person she knew was a police officer while she was in police custody.
Here, Rimer’s statement clearly contains some material against her penal interest. Rimer explicitly inculpated herself in criminal conduct by admitting that the traveler’s check that she had attempted to cash was part of the proceeds of a burglary and that she had cashed a forged traveler’s check elsewhere. But that does not end the inquiry because Rimer’s statement also inculpated defendant. The question then is whether Rimer’s statement inculpating defendant was against Rimer’s penal interest.
When a declarant’s statement implicates both the nontestifying declarant and the defendant and is offered by the prosecution against the' defendant, courts have shown reluctance to admit the statement. Cleary, Strong, Broun and Mosteller, Evidence: Cases and Materials 874 (4th ed 1988).
“ ‘[Post-arrest] statements of a codefendant have traditionally been viewed with special suspicion. Due to the strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.’ ” Lee v. Illinois, 476 US 530, 541, 106 S Ct 2056, 90 L Ed 2d 514 (1986) (quoting Bruton v. United States, 391 US
*637123, 141, 88 S Ct 1620, 20 L Ed 2d 476 (1968) (White, J., dissenting)).
“Whether a statement is in fact against the declarant’s [penal] interest must be determined from the circumstances of each case.” Legislative Commentary to OEC 804(3)(c) (reprinted in Kirkpatrick, supra, at 636).9 As one court observed, “[depending upon the circumstances in which it is made, a particular statement which is ostensibly disserving may in fact be either neutral or self-serving [i.e., advance declarant’s interests].” United States v. Riley, 657 F2d 1377, 1384 (8th Cir 1981). Such a statement would not be against penal interest. Id.
The Supreme Court of-the United States consistently has held that an accomplice’s statement that incriminates another is presumptively unreliable. See, e.g., Lee v. Illinois, supra, 476 US at 543. See also New Mexico v. Earnest, 477 US 648, 649-50, 106 S Ct 2734, 91 L Ed 2d 539 (1986) (Rehnquist, J., concurring) (weighty presumption of unreliability attaches to a codefendant’s out-of-court statement). Cf. Bourjaily v. United States, 483 US 171, 183-84, 107 S Ct 2775, 97 L Ed 2d 144 (1987) (presumption overcome where nontestifying coconspirator’s statement inculpating defendant satisfied firmly-rooted coconspirator exemption to hearsay rule).
“The pattern of the cases is that where the statement inculpates both the declarant and another, it is generally held inadmissible if made while in police custody. See, e.g., United States v. Riley, [supra]; United States v. Palumbo, 639 F.2d 123 (3d Cir.), cert. denied, 454 U.S. 819, 102 S.Ct. 100, 70 L. Ed. 2d 90 (1981).” Cleary, Strong, Broun and Mosteller, supra, at 875. See also United States v. Sarmiento-Perez, 633 F2d 1092, 1101-04 (5th Cir 1980) (adopting aperse rule of exclusion for such statements induced as a consequence of custodial interrogation). “However, the statement may be admitted if it is made to an apparent friend or confederate.” Cleary, Strong, Broun and Mosteller, supra, at 875 (citing United States v. Briscoe, 742 F2d 842 (5th Cir *6381984) (statement to brother of defendant), and United States v. Katsougrakis, 715 F2d 769 (2d Cir 1983) (statement of arsonist who was approaching death from his burns made privately to friend)). See also Fuson v. Jago, 773 F2d 55 (6th Cir 1985) (“ ‘a statement (confession) admitting guilt and implicating another person in the same crime, and made while in custody, might well be motivated by a desire to curry favor with the authorities and, hence, fail to qualify as being against interest,’ ” and, without conditions clearly indicating the trustworthiness of the statement, held inadmissible) (interpreting Ohio Rules of Evidence; quoting Ohio Rev Code Ann Ev R 804, staff note at 411 (emphasis in original)).
In the context of a coconspirator statement, this court in State v. Farber, 295 Or 199, 212, 666 P2d 821 (1983), recognized that the identity of the person to whom the statement inculpating a coconspirator was made and whether the statement was made while the declarant was in police custody are important factors in determining the reliability of a hearsay declarant’s statement inculpating a coconspirator. The fact that the hearsay declarant’s (coconspirator’s) statement was made to friends and the fact that the declarant was not in police custody at the time he made the statement influenced this court to conclude that the challenged cocon-spirator statement in Farber was reliable.10
Federal courts, in interpreting Federal Rule of Evidence (FRE) 804(b)(3), the federal counterpart to OEC 804(3) (c), generally view a declarant’s statement inculpating another with the skepticism suggested in the Advisory Committee’s Note to that rule, pointing out that a declarant’s statement that incriminates oneself and another person may well be in one’s own best interest to “curry favor with the authorities.” 11 The same skepticism about the reliability of a *639declarant’s out-of-court statement is reflected in the Commentary to OEC 804(3)(c).12 See Kirkpatrick, supra, at 639.
I turn now to the troublesome question whether, under the circumstances of this case, Rimer’s statement inculpating defendant, as testified to by Officer Marley, was truly against her penal interest at the time she made it. After she was arrested and advised of her Miranda rights and while she was in police custody, Rimer first told Officer Marley that she had received the victim’s identification and traveler’s check from several different friends. When Marley told Rimer that he did not believe her and questioned her further, Rimer changed her story. Rimer told Marley that defendant and another person had committed the burglary while she, Rimer, stayed in the car. It is this unsworn, out-of-court, collateral inculpatory statement13 that requires scrutiny.
*640A close examination of the totality of the circumstances is required in order to determine whether the inculpatory statement so contravenes Rimer’s penal interest that a reasonable person in her position would not have made that statement unless she believed it to be true. In Idaho v. Wright, 497 US 805, 819-20, 110 S Ct 3139, 111 L Ed 2d 638 (1990), the Supreme Court held that, for Confrontation Clause purposes, trustworthiness must be determined by the totality of the circumstances surrounding the making of the statement that renders the declarant’s statement particularly worthy of belief. Other evidence at trial that corroborates the truth of the statement. (e.g., physical or other confirming evidence from witnesses) is not to be considered in the constitutional trustworthiness analysis, because the use of corroborating evidence to support a hearsay statement’s “particularized guarantees of trustworthiness” would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial. Id. at 823. This constitutional trustworthiness standard is the appropriate standard for determining the evidentiary admissibility of hearsay proffered under the statement-against-penal-interest exception. If this standard is not used, “the [against-penal-interest] trustworthiness standard will be meaningless in cases where the declarant is unavailable because the standard would permit hearsay by relying on the very corroboration that must be excluded for Confrontation Clause purposes.” Raeder, The Effect Of The Catchalls On Criminal Defendants: Little Red Riding Hood Meets The Hearsay Wolf And Is Devoured, 25 Loyola of Lós Angeles L Rev 925, 941-42 (1992) (quoted language discussing catchall exception, but analysis equally applicable to against-penal-interest exception as adapted). “Moreover, as the court in [Idaho v.] Wright noted, ‘[t]here is a very real danger that a jury will rely on partial corroboration to mistakenly infer the trustworthiness-of the entire *641statement.’ ” Id. (quoting Idaho v. Wright, supra, 497 US at 824).14
Rimer’s statement was not spontaneous; it was not made to friends or confederates. It was a collateral inculpatory statement, given under potentially coercive circumstances that could not at trial, and cannot now, be adequately examined. The reliability of Rimer’s inculpa-tory statement is attenuated because Rimer made it, while in police custody, to a person known by Rimer to be a police officer. There were, in addition, obvious possible motives for falsification: the natural desire to curry favor with the authorities, the desire to minimize culpability by shifting blame or implicating others, the hope that she would likely be given more lenient treatment if she provided evidence for the prosecution of another person, the desire for revenge, or a desire to deceive for some other reason.15 Any one or more of these factors might lead Rimer to misrepresent or exaggerate defendant’s role (thereby attempting to diminish her own role) in the criminal enterprise. These circumstances are not counterbalanced by relevant circumstances indicating the reliability of Rimer’s statement inculpating defendant. It is reasonable to suppose that Rimer might have viewed the ostensibly or arguably disser-ving statement inculpating defendant to be in her interest rather than against it.
I would hold that the prosecution has not shown by a preponderance of the evidence, as it must, that Rimer’s statement inculpating defendant was in fact truly against her interest. The reliability prong of the rationale for the exception for statements against penal interest is lacking as to that part of Rimer’s statement.16
*642When a hearsay declarant’s statement contains statements of fact that are against the declarant’s penal interest and statements of fact that are not against declarant’s penal interest, and which are inculpatory of a defendant, it is suggested that the most realistic method of adjusting admissibility to the reliability on which the exception rests is to exclude that part of the statement that inculpates the defendant. Carlson, Imwinkelried, and Kiona, Materials for the Study of Evidence 513 (1983); McCormick’s Handbook of the Law of Evidence 677 (2d ed 1972). See also United States v. Lilley, 581 F2d 182, 188 (8th Cir 1978) (suggesting possibility of this method of handling such evidence). Rimer’s statements are severable. I would apply that approach in this case. I would hold that Rimer’s hearsay statement inculpating defendant was not admissible under OEC 804(3)(c).
II. CONSTITUTIONAL CONFRONTATION RIGHTS
Hearsay offered against a criminal defendant also implicates the criminal defendant’s confrontation rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the Constitution of the United States. The fact that hearsay may be admissible under a hearsay exception does not nullify either the state or federal constitutional argument. The statement-against-penal-interest hearsay exception set forth in OEC 804(3) (c) surely was meant to apply to criminal proceedings only so far as consistent with the constitutional right of confrontation. See State v. Smyth, 286 Or 293, 297, 300, 593 P2d 1166 (1979) (making similar observation with respect to a particular statutory exception to hearsay rule). Even if Rimer’s statement was admissible under OEC 804(3)(c), the admission of Rimer’s statement inculpating defendant, in my view, violated defendant’s Confrontation Clause rights under both Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the Constitution of the United States.
In addressing the applicability of the right of confrontation under Article I, section 11, of the Oregon Constitution to *643a particular hearsay exception, this court in State v. Campbell, 299 Or 633, 648, 705 P2d 694 (1985), as stated by the majority in this case, 316 Or at 622-23, has adopted the analytical framework of Ohio v. Roberts, 448 US 56, 66, 100 S Ct 2531, 65 L Ed 2d 597 (1980):
“[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that [the declarant] is unavailable. Even then, [the declarant’s] statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception![17] In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.”
See State v. Cornell, 314 Or 673, 682-85, 842 P2d 394 (1992) (applying the analytical framework); State v. Stevens, 311 Or 119, 140-42, 806 P2d 92 (1991) (same).
Using this paradigm, we must decide in this case whether admission of Rimer’s statement inculpating defendant violated defendant’s right to confrontation under Article I, section 11. With respect to the first component, the unavailability component, the majority holds that Rimer was unavailable within the requirements of Article I, section 11, because she was absent in court and the prosecutor made a good-faith effort to obtain her presence at trial. 316 Or at 623. I agree.
As to the second component, the statement-against-penal-interest exception, OEC 804(3)(c), at least in its application to a statement of a nontestifying declarant inculpating a criminal defendant, could hardly be viewed as “firmly rooted.”18 The inquiry, then, is whether Rimer’s statement *644inculpating defendant bears adequate indicia of reliability, i.e., particularized guarantees of trustworthiness. This court has looked to the precedents of the United States Supreme Court in determining what constitutes unavailability of a hearsay declarant and what constitutes adequate indicia of reliability of hearsay statements to satisfy our state constitutional Confrontation Clause. State v. Campbell, supra, 299 Or at 648. See Kirkpatrick, supra, at 523.1 would hold that, for essentially the same reasons that I have stated in my discussion of admissibility under OEC 804(3)(c), Rimer’s statement inculpating defendant, made while in police custody to a person known by Rimer to be a police officer, does not bear adequate indicia of reliability (particularized guarantees of trustworthiness) sufficient to overcome the heavy presumption of unreliability to satisfy Confrontation Clause concerns of Article I, section 11, of the Oregon Constitution.19 See Bruton v. United States, supra (a nontestifying codefendant’s confession that implicates another defendant may not be introduced at the pair’s joint trial in an unredacted form, even if the jury is instructed to not consider the confession against the second defendant); Lee v. Illinois, supra (applying the Ohio v. Roberts two-part test, Supreme Court found that the *645trial court’s reliance on a nontestifying codefendant’s confession as substantive evidence against the defendant violated the Sixth Amendment Confrontation Clause);20 Richardson v. Marsh, 481 US 200, 211, 107 S Ct 1702, 95 L Ed 2d 176 (1987) (Sixth Amendment “Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when * * * the confession is redacted to eliminate not only the defendant’s name, but any reference to [the defendant’s] existence”).
For the same reasons, admission of Rimer’s statement inculpating defendant violated defendant’s Sixth Amendment Confrontation Clause rights.
III. CONCLUSION
I would hold that Rimer’s statement inculpating defendant was not admissible under OEC 804(3)(c) and that, even if it was, admitting the statement was a violation of defendant’s state and federal confrontation rights. The error in admitting the statement was not harmless. Rimer’s statement inculpating defendant was significant to the prosecution’s case and devastating to the defense; it went to the very issue in dispute at trial.211 cannot, therefore, say that there was little likelihood that the error in admitting Rimer’s hearsay statement affected the verdict. See State v. Johnson, 313 Or 189, 201, 832 P2d 443 (1992) (applying standard for determining whether evidential or constitutional error is harmless). Accordingly, I would reverse the judgment of conviction and remand the case to the circuit court for a new trial.
I respectfully dissent.
Van Hoomissén, J., joins in this opinion.For purposes of the hearsay rule, OEC 801(2) provides that “[a] ‘declarant’ is a person who makes a statement.”
OEC 802 provides:
“Hearsay is not admissible except as provided in [OEC 801 to 806] or as otherwise provided by law.”
OEC 804(3)(c) provides that a “statement which * * * at the time of its making * * * so far tended to subject the declarant to * * criminal liability * * * that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true” is not excluded by the hearsay rule. The rule sets forth an additional requirement for a statement against penal interest offered to exculpate the accused:
“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.”
There is no similar corroboration requirement for inculpatory statements offered by the prosecution against a criminal defendant.
Article I, section 11, of the Oregon Constitution provides:
“In all criminal prosecutions, the accused shall have the right * * * to meet the witnesses face to face * *
The Sixth Amendment to the Constitution of the United States provides:
*634“In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.”
Defense counsel preserved the hearsay and the state and federal constitutional confrontation objections by distinctly and timely invoking the three grounds for objection.
There is no claim in this case that Rimer’s hearsay statement qualified for admissibility under the coconspirator exemption to the hearsay rule, OEC 801(4)(b)(E). See infra, note 19.
OEC 804(l)(a)-(e) lists five situations in which a hearsay declarant is considered “unavailable as a witness” for the purposes of the hearsay exceptions in OEC 804.
A statement against penal interest is one that tends to subject the out-of-court declarant to criminal sanctions. See 2 McCormick on Evidence 344, § 319 (4th ed 1992) (a statement against penal interest “is one that would be admissible against declarant in a criminal prosecution; it need not be a confession, but must involve substantial exposure to criminal liability”).
The Advisory Committee’s Note to the federal evidence counterpart, FRE 804(b)(3) (then FRE 804(b)(4)), states that “[wjhether a statement is in fact against interest must be determined from the circumstances of each case. ”56 FRD 183, 328 (1973).
See also 5 Wigmore, Evidence 361 n 7, § 1477 (Chadbourn rev 1974) (“a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest. * * * On the other hand, the same words spoken under different circumstances, e.g., to an acquaintance, would have no difficulty in qualifying”).
The Advisory Committee’s Note to FRE 804(b)(3) (then FRE 804(b)(4)) states that “[a] statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest.” 56 FRD 183, 328 (1973).
“As the Commentary fto OEC 804(3)(c)l notes, Ta] statement admitting guilt and implicating another person, made while in custody, may well spring from a desire to curry favor with the authorities and hence fail to qualify as being against the declarant’s interest.’ ” Kirkpatrick, Oregon Evidence 639 (2d ed 1989). See also Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv L Rev 1378, 1396 (1972) (“the naming of another as a compatriot will almost never be against the declarant’s own interest and thus will contain little assurance of reliability on this ground”).
A statement that inculpates both the declarant and the defendant in criminal activity can be divided into collateral and noncollateral inculpatory statements. Professor Graham explains the distinction between collateral and noncollateral statements.
“In a noncollateral inculpatory statement, the facts inculpating the defendant are found in the portion of the statement directly against the declarant’s interest. In his treatise, District Judge Jack Weinstein presents as an example of such a statement one in which the declarant states that he has stolen goods, with the statement admitted against a defendant charged with possession of the stolen goods. 4 J. Weinstein & M. Berger, Weinstein’s Evidence: Commentary on Rules of Evidence for the United States Courts and Magistrates ¶ 804(b)(3)[03) at 804-96-97 (1977).* * Here, the fact that the declarant has stolen the items is disserving to the declarant and inculpates the defendant. Because such statements can arise only where a defendant is accused of less common crimes, they do not appear often in the cases.
“The more common type of inculpatory statement is the collateral inculpa-tory declaration. Here, the inculpatory material is not found in the portion of the statement directly against the declarant’s interest, but appears instead in another portion of the statement. An example of such a statement would be the declarant’s assertion that ‘John and I robbed the bank’ admitted in John’s trial for bank robbery. In this example the relevant material is not contained in the disserving segment (T robbed the bank.’); instead, it is in the collateral portion (‘John robbed the bank.’).” Graham, Handbook on Federal Evidence 985 n 10, § 804.3 (3rd ed 1991) (emphasis in original).
*640See also Comment, Federal Rules of Evidence 804(b)(3) and Inculpatory Statements Against Penal Interest, 66 Cal L Rev 1189, 1190 n 7 (1978). For an analysis of the admissibility of collateral statements arguably against penal interest, see Note, Declarations Against Interest — Rules of Admissibility, 62 Northwestern U L Rev 934, 947-49 (1968).
The use of other evidence at trial that corroborates the truth of the statement is best taken into account in any harmless error analysis. Idaho v. Wright, 497 US 805, 823, 110 S Ct 3139, 111 L Ed 2d 638 (1990).
Whether or not Rimer did in fact curry favor by implicating someone else is not significant to the inquiry into whether her statement was reliable; rather, the proper inquiry is limited to the “totality of the circumstances” that surround the making of the statement and that render Rimer particularly worthy of belief.
“A number of commentators, including Wigmore, have analogized the inculpatory confession to a statement which has both self-serving and disserving aspects * * * and have concluded that the rationale for the exception for *642statements against [penal] interest is lacking for that part of the declarant’s statements inculpating an accomplice.” 4 Weinstein and Berger, Weinstein’s Evidence 804-152, ¶ 804(b)(3)[03] (1992).
17 In State v. Cornell, 314 Or 673, 684, 842 P2d 394 (1992), this court held that, “[ajlthough the hearsay exception for coconspirator statements has existed in different forms, * * * the coconspirator exemption in OEC 801(4)(b)(E) * * * is deeply rooted in satisfaction of the state confrontation clause.”
Neither this court nor the United States Supreme Court has clarified the meaning of the phrase “firmly rooted.” Whether “firmly rooted” is a function of the longevity of an exception, the number of jurisdictions recognizing it, or both, or something else, remains uncertain. As to longevity, the statement-against-penal-interest exception is, however, a relatively new exception to the hearsay rule. 5 Wigmore, supra, at 349-50.
*644“ [Statements against penal interest — whether exculpatory or inculpatory — were not well-received at common law in either English or American courts. The English courts first rejected a hearsay exception for such statements in The Sussex Peerage, [8 Eng Rep 1034 (HL 1844),] and the Supreme Court of the United States followed suit in Donnelly v. United States[, 228 US 243, 273, 33 S Ct 449, 57 L Ed 820 (1913)].” Note, Inculpatory Statements Against Penal Interest and the Confrontation Clause, 83 Columbia L Rev 159, 162-63 (1983).
The exception was first recognized in Oregon with the passage of the Oregon
Evidence Code in 1981.
This court recently held that the hearsay statements of a nontestifying coconspirator may be admitted against a defendant under the coconspirator exemption to the hearsay rule (OEC 801(4)(b)(E)) despite the lack of any face-to-face encounter with the defendant because the coconspirator exemption to the hearsay rule is firmly rooted. State v. Cornell, 314 Or 673, 685, 842 P2d 394 (1992) (holding analyzed under Article I, section 11, of the Oregon Constitution and under the Sixth Amendment to the Constitution of the United States, citing Bourjaily v. United States, 483 US 171, 183-84, 107 S Ct 2775, 97 L Ed 2d 144 (1987)). In State v. Cornell, supra, 314 Or at 678-81, the statement was made “during the course and in furtherance of the conspiracy,” i.e., it was “meant to advance the objectives of the conspiracy,” id. In this case, in contrast, the hearsay exception is not firmly rooted and must be evaluated under the totality of the circumstances, including the fact that the statement was made by the declarant while in police custody. See supra, 316 Or at 638-39 nn 10-12, and 316 Or at 641.
In Lee v. Illinois, 476 US 530, 544 n 5, 106 S Ct 2056, 90 L Ed 2d 514 (1986), the court explicitly “reject[ed] the [prosecution’s] categorization of the hearsay involved in th[e] case as a simple ‘declaration against penal interest.’ That concept defines too large a class for meaningful Confrontation Clause analysis. We decide this case as involving a confession by an accomplice which incriminates a criminal defendant.” (Emphasis added).
Kirkpatrick suggests that the centrality of the evidence to the prosecutor’s case (i.e., the extent to which the hearsay statement bears directly on the central issues of the case) is a factor to consider in evaluating whether to admit hearsay evidence against a Confrontation Clause challenge. Kirkpatrick, Confrontation And Hearsay: Exemptions From The Constitutional Unavailability Requirement, 70 Minn L Rev 665, 682-83 (1986).