(dissenting ). At the outset, I wish to premise my position by noting that I have no quarrel with the fact that there exists a fundamental right of the accused to present evidence under Chambers v. Mississippi, 410 U.S. 284 (1973), and that this right must not be defeated by the "mechanistic” application of a hearsay rule. See, e.g., State v. McConnohie, 121 Wis. 2d 57, 71, 358 N.W.2d 256 (1984); State v. Sharlow, 110 Wis. 2d 226, 233, 327 N.W.2d 692 (1983); State v. Brown, 96 Wis. 2d 238, 242, 291 N.W.2d 528, cert. denied 449 U.S. 1015 (1980). However, contrary to the hearsay rule at issue in Chambers which permitted no exception for declarations against penal interest, Wisconsin, under sec. 908.045(4), Stats., permits the introduction of declarations against penal interest under the hearsay excep*671tion where the statement is corroborated. The Wisconsin rule contains the precise element of fluidity which necessarily avoids mechanistic application and permits the proper balance between the right to present evidence in one’s defense and the need to exclude untrustworthy evidence in order to preserve jury integrity.
The effect of the majority opinion’s interpretation of the requirement of sec. 908.045(4), Stats., is to effectively eliminate the requirement of corroboration and, hence, destroy the statutory assurance against fabrication. The majority states that the corroboration requirement of sec. 908.045(4) is satisfied if corroboration is "sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true. 1,1 Majority at 656. This standard does not further the purpose of the corroboration requirement; a reasonable person might be "permitted" to conclude, absent any corroboration whatsoever, that a statement "could"2 be true. The purpose of *672the corroboration requirement is not to assure against the admission into evidence of statements so lacking in indicia of credibility as not to "permit" a reasonable person to believe they "could" be true. The focus should be not upon the reasonableness of the statement's content and the possibility of its having been made, but upon the reasonableness of the corroboration and whether the corroborative evidence indicates that the statement was probably made. At a minimum, the standard should require that the evidence proffered to corroborate a hearsay statement meet the minimum relevancy requirements set forth under sec. 904.01. Specifically, the corroborating circumstances should at least be found to support a reasonable person's belief that the statement is more probably than not true.
I express further disagreement with the court’s reliance upon the decision of Truelsch v. Miller, 186 Wis. 239, 202 N.W. 352 (1925).3 The relevance of the *673quoted statement to the proposition for which it yvas cited becomes doubtful where the entire sentence from which the quoted portion was extracted is examined: "The fact that the statements are not admissible during the life of the declarant and that such declarations are sometimes the only mode of proof available are regarded as additional reasons for the reception of such statements in evidence without the sanction of an oath by the declarant.” Id. at 248. This quoted passage was made with respect to a rule as to the admissibility of statements no longer followed and more stringent than sec. 908.045(4), to the extent that specific safeguards against fabrication were contained within the rule. The rule regarding statements against interest in effect at the time Truelsch was decided provided as follows: "The exception is that the declarations of persons, since deceased, are admissible in evidence provided the declarant had peculiar means of knowing the matter stated, if he had no interest to misrepresent it, and if it was opposed to his pecuniary or proprietary interest.” Id. at 246. Hence, embodied within the exception there was assurance against fabrication since in order for these hearsay statements to be admitted, it was necessary to show that the "declarant had peculiar means of knowing the matter stated.” Thus, contrary to the facts present herein, in Truelsch there was significant corroboration to warrant the operation of the exception to the hearsay rule.
In the case at bar, there was no evidence or testimony independent of that proffered by the defendant corroborating the proffered statements. Con*674trary to the statements addressed in Chambers, the hearsay statements in this case were not "offered at trial under circumstances that provided considerable assurance of their reliability.” 410 U.S. at 300. The evidence that Luther was arrested two blocks from the bar and that the briefcase had his name on it and contained his personal papers merely establishes that Luther was near the scene of the crime. There was neither evidence establishing Luther’s ownership of the gun nor eyewitness testimony beyond that of the defendant as to Luther’s possession of the gun that evening. Compare with Chambers, 410 U.S. at 300.
While the majority correctly states that questions of statutory interpretation are questions of law reviewable by this court without deference to the courts below, this proposition does not warrant a total disregard of the well-recognized proposition that it is the "'trial court which is best situated to weigh the reliability of the circumstances surrounding [a] declaration.’” McConnohie, 121 Wis. 2d at 73 (quoting Brown, 96 Wis. 2d at 245-46). See also Christensen v. Economy Fire & Casualty Co., 77 Wis. 2d 50, 55, 252 N.W.2d 81 (1977) (admissibility of hearsay statement within discretion of court and such discretion will not be reversed unless it is abused or is premised upon an erroneous view of the law). Consequently, this court should not reverse the trial court’s decision regarding the reliability of the hearsay statement unless it is clearly erroneous. Id. Therfore, while this court may review ab initio the trial court’s decision to the extent that it is premised upon an interpretation of sec. 908.045(4), that portion of the trial court’s decision which merely involved a discretionary determination of reliability must be accorded deference.
*675Specifically, the trial court in the present matter highlighted the fact that "all we had was the defendant’s statement as to what happened at the scene. There was nothing else that really corroborated what Luther Anderson had told his mother ...Stated otherwise, the trial court found that the proffered independent evidence did not corroborate or further the reliability of the necessary statements at all. In this regard, it becomes apparent that what is clothed in terms of statutory construction is in fact an improper review of the trial court’s discretion. If statutory construction was involved in the trial court’s decision, it was not in its determination of the weight to be given the proffered independent evidence. A determination that the evidence was devoid of corroborative value did not require statutory interpretation regarding the extent of corroboration needed. If the trial court’s decision presents an issue of statutory construction, it would arguably exist in its finding that the defendant’s own testimony was unavailable for use as corroboration under the statute. Compare City of Madison v. Donohoo, 118 Wis. 2d 646, 651, 348 N.W.2d 170 (1984); and Oostburg Bank v. United Savings, 130 Wis. 2d 4, 11-12, 386 N.W.2d 53 (1986), with McConnohie, 121 Wis. 2d at 73. However, it was not the latter aspect of the trial court's decision in which the majority opinion found error.
Consistency with the dictates of Chambers does not require such a broad liberalization of the corroboration requirement as to admit all but those statements which a reasonable person could not possibly believe. There was no abuse of the trial court’s discretion in the case at bar, since with the proper and necessary exclusion of the defendant’s own testimony, the remaining independent testimony only establish*676ed the declarant’s presence in the general vicinity of the scene of the incident. However, the requirement of corroboration necessitates evidence beyond the declar-ant’s presence at the location of an incident; such evidence does not corroborate the truthfulness of the statement. This distinction is both self-evident and one which has previously been implicitly recognized by the court. For example, in Sharlow, 110 Wis. 2d 226,4 not only was the declarant’s presence in the immediate vicinity of the scene of a crime unquestioned, the declarant’s position was consistent with the angle in which the bullet entered the victim’s *677skull. Notwithstanding the undisputed presence of the declarant at the scene of the crime in Sharlow, the court found that the statement lacked "persuasive assurances of trustworthiness” and indicated that corroboration must be specifically directed toward the hearsay statement. Id. at 235-37. Therefore, the "independent evidence” which conglomerately established only the declarant’s presence at the time and place of the crime is inadequate to satisfy the corroboration requirement of sec. 908.045(4), Stats.
Finally, I would agree with the trial court in this case that the proffered statement "didn’t really take the culpability of the offense away from the defendant.” Presuming that the privilege for conduct in defense of third persons is available as a defense to sec. 941.29, Stats., there are temporal limits beyond which the continued possession of a firearm defeats the privilege. The necessity of such a limitation has been recognized by those federal courts which have interpreted 18 U.S.C. app. sec. 1202(a)(1) (1982), which similarly prohibits the possession of a firearm by a felon, to admit of a self-defense or defense of others justification: "continued possession beyond the time that the emergency exists will defeat the defenses.” United States v. Gant, 691 F.2d 1159, 1163 n. 9 (5th Cir. 1982); United States v. Panter, 688 F.2d 268, 272 (5th Cir. 1982). See also United States v. Wheeler, 800 F.2d 100 (7th Cir. 1986). The defendant’s initial possession of the firearm while in the bar might arguably be privileged if the hearsay statement were believed. However, it is difficult to conceive how the defendant’s continued possession of the firearm was "necessary for the protection of [a] third person” after the defendant and the declarant were two blocks away from the bar where the defendant believed the "third *678person” remained. See sec. 939.48(1) and (4). It is, therefore, my opinion that even if the trial court did err by erroneously refusing to admit the proffered statements, this error was harmless since the substance of the statements does not indicate that there is a reasonable possibility that their omission contributed to the defendant’s conviction. State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985).
It is apparent that this court has, in the rule announced today, most glaringly failed in the directive to construe "[t]he requirement of corroboration ... in such a manner as to effectuate its purpose of circumventing fabrication.” Federal Advisory Committee’s Note, 59 Wis. 2d at R321. For this reason and because any arguable error in refusing to admit the statements would be harmless, I dissent.
I am authorized to state that JUSTICE DONALD W. STEINMETZ joins in this dissenting opinion.While a facially similar standard has been proposed with respect to the federal rule, this standard may not be conformed to the Wisconsin rule, sec. 908.045(4), Stats., merely by the elimination of the term "clearly.” Cf. 4 J. Weinstein and M. Berger, Weinstein’s Evidence, U804(b)(3) [03] at at 804-141 (1985) ("The court should only ask for sufficient corroboration to 'clearly’ permit a reasonable man to believe that the statement might have been made in good faith and that it could be true”) (emphasis in original). Moreover, the standard set forth in Weinstein’s treatise has not been unequivocally accepted. See, e.g., United States v. Bagley, 537 F.2d 162, 168 (5th Cir. 1976), cert. denied 429 U.S. 1075 (1977).
Without modification, the word "could” articulates a permissive standard defined as requiring only "to be enabled by law, agreement, or custom; to have a right to; to have permission to.” Black’s Law Dictionary 186 (5th ed. 1979) (defining "can”). *672Moreover, the term "could” is often used interchangeably with "may,” id., which has generally been interpreted to connote nothing more than a grant of discretion. See, e.g., Miller v. Smith, 100 Wis. 2d 609, 616, 302 N.W.2d 468 (1981); Hitchcock v. Hitchcock, 78 Wis. 2d 214, 220, 254 N.W.2d 230 (1977); State v. Bauer, 127 Wis. 2d 401, 411, 379 N.W.2d 895 (Ct. App. 1985) ("The word 'may’ has generally been interpreted as permissive, allowing the actor to use discretion”).
The significance apparently attached by the majority to the reference in the Judicial Council Committee’s Note to Truelsch and Dillenberg v. Carroll, 259 Wis. 417, 422, 49 N.W.2d 444 (1951), is misplaced. The Judicial Council Committee’s Note arguably indicates that Truelsch and Dillenberg could be deemed relevant only, however, to the extent that sec. 908.045(4) was adopted as a codification of existing case law. However, the inclusion within the exceptions to the hearsay rule of statements against penal interest *673offered to exculpate the accused is within the "[c]hanges effected by this subsection [908.045(4)].” 59 Wis. 2d at R318.
Furthermore, while the majority opinion refers to Truelsch in support of its position, which predates the adoption of sec. 908.045(4) by almost five decades, the relevance of those cases decided prior to the effective date of sec. 908.045(4) but subsequent to the United States Supreme Court’s decision in Chambers has been entirely overlooked. There is no justification for the refusal of the majority to follow the guidance of Chambers and its Wisconsin progeny. In the regard, it should be noted that while the Chambers holding articulating the necessity of corroboration in order to provide "considerable assurance” of "reliability” had been decided prior to Wisconsin’s adoption of sec. 908.045(4), there is nothing in sec. 908.045(4) which indicates Wisconsin’s adoption of a more liberal corroboration standard. Wisconsin decisions which have addressed indicia of reliability sufficient to establish "corroboration” under Chambers are directly instructive with respect to the "corroboration” requirement of sec. 908.045(4). Consequently, Chambers and those Wisconsin decisions which were decided prior to the effective date of sec. 908.045(4) should be followed where this court has considered and analyzed the extent to which a statement against penal interest must be corroborated. In fact, in Sharlow, this court indicated that corroboration inadequate under Chambers would not satisfy the requirement of sec. 908.045(4). 110 Wis. 2d at 237-38 n. 9. It is for these reasons that reference is made in this dissent both to Chamber and Wisconsin decisions employing a due process analysis.