Many business owners and managers are unaware that emails, text messages, voice mail messages, social media posts and even casual conversations can come back to haunt them in the event of a lawsuit. This is true even when these so-called "statements against interest" are made “off the record,” in informal settings, and outside of the workplace.

What Is Hearsay?

Statements (either written or oral) made out of court, which are offered to prove the truth of the matter asserted, are considered hearsay. Because the statements were made outside of the courtroom and not subject to cross-examination, they are considered untrustworthy and unreliable and, thus, are typically not admissible at trial. However, many hearsay exceptions exist under both the New Jersey Rules of Evidence and the Federal Rules of Evidence.

Exception for Statements Against Interest

Statements against interest are one exception to the rule prohibiting the admissibility of hearsay testimony. Under New Jersey Rule of Evidence 803(c)(25), a statement against interest is defined as:

A statement which was at the time of its making so far contrary to the declarant's pecuniary, proprietary, or social interest, or so far tended to subject declarant to civil or criminal liability, or to render invalid declarant's claim against another, that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true. Such a statement is admissible against an accused in a criminal action only if the accused was the declarant.

Under the New Jersey Rules of Evidence, the rationale for why such an out-of-court statement should be considered sufficiently reliable to qualify as an exception to the hearsay rule is that people don’t typically say unfavorable things about themselves unless they are true. As explained by the Supreme Court of New Jersey in State v. White, 158 N.J. 230 (1999): "The statement-against-interest exception is based on the theory that, by human nature, individuals will neither assert, concede, nor admit to facts that would affect them unfavorably. Consequently, statements that so disserve the declarant are deemed inherently trustworthy and reliable."

Federal Rule of Evidence 804(b)(3) includes a similar exception for statements made by a declarant who is unavailable as a witness at the time of trial.

Federal Rule of Evidence 804(b)(3) defines a statement against interest as a statement that:

A reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and the statement is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

The Advisory Committee's Note to the Federal Rules of Evidence similarly states, "The circumstantial guarantee of reliability for declarations against interest is the assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true."

Of course, the statement against interest exception is not the only way that litigants can get around the hearsay rule. When involved in a business dispute, it is important to always remember that your emails, text messages, voice mail messages, social media posts and informal conversations can negatively impact imminent or pending litigation.