IN THE SUPREME COURT OF IOWA

No. 07–0237

Filed September 18, 2009

STATE OF IOWA,

Appellee,

vs.

EDWIN BELLO PAREDES,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Johnson County, 

Douglas S. Russell, Judge.

Defendant challenges conviction based on the district court’s 

exclusion of statements against penal interest made by another suspect. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT 

JUDGMENT REVERSED AND CASE REMANDED.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, 

Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant 

Attorney General, Janet M. Lyness, County Attorney, and Anne M. 

Lahey, Assistant County Attorney, for appellee.
2

APPEL, Justice.

Edwin Paredes appeals his conviction for child endangerment 

resulting in serious injury. The charges arose after his infant child was 

diagnosed with shaken-baby syndrome. Paredes claims that the district 

court erred in excluding hearsay statements made by the child’s mother 

that she “may have” caused the baby’s injuries. The court of appeals

affirmed Paredes’ conviction. For the reasons expressed below, we vacate 

the decision of the court of appeals, reverse the judgment of the district 

court, and remand the case for a new trial.

I. Background Facts and Prior Proceedings. 

Paredes and Cassidy Millard are the parents of a young infant. At 

the time of the events relevant to this proceeding, Paredes was twentyfour years old, Millard was sixteen years old, and the baby was two 

months old. The family was living in the home of Paredes’ sister, Wendy 

Jimenez, in Coralville, Iowa.

After being seen by a physician on Saturday, April 23, 2005 for 

what appeared to be a routine ear infection, the baby’s condition 

deteriorated. On Sunday, after consulting with the child’s physician, 

Millard called for an ambulance to take the infant to a local hospital. 

Police officers arrived at the residence shortly thereafter. Upon arrival of 

the police officers, Paredes was defensive, asking the officers, “What are 

you doing here?” and declaring, “This is not a domestic.” Paredes 

remained at home while Millard accompanied the child to the hospital.

At the hospital, medical personnel diagnosed the baby with

shaken-baby syndrome. The fact that the infant was not properly 

diagnosed on Saturday when the child was seen by a physician was 

explained by the developing nature of shaken-baby syndrome symptoms. 

At first, the symptoms are general irritability, excessive crying, and 
3

trouble feeding. These symptoms then progress to more severe 

problems, including periodic seizures. Based on the onset of the 

seizures, medical personnel determined that the injury occurred 

sometime between late Friday and early Saturday morning. As 

mandatory reporters, hospital staff contacted the Iowa Department of 

Human Services (DHS) to report the suspected abuse.

On Sunday evening, Chad Bollweg of DHS and Coralville Police 

Detective Robbie Swank met with Paredes and Millard. Both denied any 

knowledge of how the child was injured. They did admit, however, that 

they were the child’s only caregivers during the period in question, except 

for a brief fifteen-minute period when Paredes’ sister cared for the baby. 

On Monday, Bollweg and another social worker, Vicky Leau, met 

with the couple. Leau informed the parents that all future visits with the 

child would have to be supervised. Upon hearing this, Paredes declared 

that supervised visits would not be necessary—he caused the injuries. 

Leau wondered whether Paredes “was just saying that so that Cassidy 

could be unsupervised and spend more time at the hospital.” Millard 

commented that Paredes should not say something simply for her sake.

Paredes, nevertheless, claimed he was watching the child while 

Millard was outside smoking and shook the baby when it would not stop 

crying. He later performed a reenactment. Paredes repeated the story to 

Detective Swank and Bollweg and signed a written statement detailing 

the incident and declaring his remorse. He was not immediately 

arrested.

On Tuesday, Paredes again met with Detective Swank. At that 

time, Paredes asked Swank whether anyone ever testified falsely in order 

to protect someone else and whether the detective thought he had hurt 

the baby. Swank responded by asking Paredes if he was denying 
4

shaking the baby. Paredes then denied shaking the infant. Swank told 

Paredes he did not appreciate him “treating this like a game” and asked 

for the truth.

At this point, Paredes returned to his initial claim and once again 

asserted that he injured the child. He stated he was afraid of going to 

jail. Paredes suggested that he and Millard should not have admitted 

they were the only caregivers and instead should have pointed the finger 

at some of the older kids in the home. Paredes apologized for his 

inconsistencies. 

On May 1, Millard called a social worker, Susan Gail, with whom 

she had prior contact. Because of the nature of the call, Gail 

memorialized the contents of the conversation. According to Gail’s 

memorandum, Millard told her that Millard’s child had shaken-baby 

syndrome. When Gail asked Millard what had happened, Millard 

responded:

She said she did not know, but her boyfriend (Edwin, I think) 

was in jail for it. She said that he did not do it, though. She 

then asked me if her diagnosis was Multiple Personality 

Disorder, because sometimes she doesn’t remember what 

she does. I asked her if she meant like the time she 

threatened to kill/stab me. (This was when she was in 

Valley Shelter 2 years ago.) She said yes, that’s what I 

mean. 

Gail told Millard that she did not believe Millard had been 

diagnosed as having Multiple Personality Disorder, but questioned 

Millard as to why Millard would pose such a question. According to the 

Gail memorandum, Millard responded:

She told me she knows Edwin would not hurt the baby and 

hinted around that maybe she did it, but didn’t remember. I 

asked about the day that it happened. I asked her if the 

baby was crying. She told me that he cried all the time, he 

was colicky [sic]. She said that she just yelled at him to 

“shut up”, but never hit him. She then said that she had 

started spanking him lately, but that it did not hurt him 

since he had on a big diaper.
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The Gail memorandum further states:

Cassidy was afraid that if she told that she might have done 

it, she would go to prison when she is 18. I told her that she 

needed to talk to her attorney. I told her that she would not 

get the baby back and she said that she knew that. She 

asked me what would happen to her if it was found that she 

did hurt the baby. I told her that I didn’t know, but more 

than likely she would go to Toledo until she turned 18. 

After discussing the condition of the child, the Gail memorandum 

indicates that she and Millard further discussed Millard’s situation:

Cassidy told me that she has been crying for a week because 

she does not want her boyfriend to take the fall for this. She 

said that he is not that kind of guy, not violent. She said 

that Edwin didn’t even take care of the baby that much. She 

kept saying, “if I did it.”

At this point, Gail continued to talk to Millard as if she did do it and was 

not contradicted. Gail again advised Millard to contact her attorney. 

Gail contacted her supervisor about the conversation and 

forwarded a copy of the memorandum by e-mail to her. The e-mail was 

then forwarded to Detective Swank. Although Detective Swank spoke 

with Gail by telephone, he did not interview Millard again. On May 5, the 

State charged Paredes with child endangerment resulting in serious 

injury in violation of Iowa Code section 726.6(1)(b) (2003). 

On the day of trial, the State filed a motion in limine to exclude 

Gail’s testimony regarding her conversation with Millard as 

impermissible hearsay. The motion in limine was considered in 

chambers, with only a brief record made after the fact. On the record, 

the State argued that Gail’s testimony would constitute inadmissible 

hearsay. Paredes’ counsel did not specifically respond to the State’s 

argument. The court orally sustained the motion.

The next day, Paredes filed a motion to reconsider. Paredes urged 

that he be allowed to question Detective Swank and DHS employee

Bollweg about the memorandum, its contents, and their responses to it. 
6

Paredes stated that he was not presenting the evidence for the truth of 

the matter asserted, but instead argued that the actions of Swank and 

Bollweg in response to the Gail memorandum revealed the existence of 

another suspect in the case.

After allowing oral argument on the motion to reconsider, the 

district court denied it. In a ruling on the record, the district court held 

that the statements made by Millard in the memorandum were out-ofcourt statements by a declarant who was unavailable to testify. The 

district court further concluded that the statements did not meet the 

hearsay exception for statements against interest under Iowa Rule of 

Evidence 5.804(b)(3).

In support of its conclusion, the court found that the statements 

attributed to Millard would not subject her to criminal liability, but were 

statements about hypothetical guilt or hypothetical punishments if guilt 

were established or an admission were made. Further, the district court 

ruled that there were insufficient corroborating circumstances under rule 

5.804(b)(3) to allow admission of the statements. 

Paredes was convicted at trial. On appeal, the court of appeals 

affirmed his conviction. The court of appeals concluded that because the 

district court ruled on the issue, the admissibility of Millard’s statements

was preserved. On the merits of the claim, however, the court of appeals 

concluded that Paredes failed to show that Millard was unavailable for 

trial, a prerequisite for admission of statements against interest under 

rule 5.804(b)(3). We granted further review.

II. Standard of Review.

A district court’s decision to admit or exclude evidence is generally 

reviewed for an abuse of discretion. State v. Jordan, 663 N.W.2d 877, 

879 (Iowa 2003). This court, however, reviews hearsay claims for 
7

correction of errors at law. State v. Newell, 710 N.W.2d 6, 18 (Iowa 

2006). This standard of review extends to determining whether 

statements come within an exception to the general prohibition on 

hearsay evidence, including the exception for statements against interest. 

State v. Hallum, 585 N.W.2d 249, 254 (Iowa 1998), vacated on other 

grounds by Hallum v. Iowa, 527 U.S. 1001, 119 S. Ct. 2335, 144 

L. Ed. 2d 233 (1999).

III. Preservation of Error.

Preliminarily, we must address two preservation of error issues. 

The State claims that Paredes has failed to preserve the issue he now 

seeks to raise on appeal, namely, the admissibility of Millard’s 

statements as statements against interest. Paredes conversely asserts 

that the State failed to preserve the issue of Millard’s unavailability, an 

issue which the court of appeals held prevented Paredes from offering her 

out-of-court statements for the truth of the matter asserted.

The essence of the State’s argument is that Paredes has improperly 

switched horses in midstream. At trial, the State claims, Paredes did not 

specifically assert that Millard’s statements to Gail were admissible as 

statements against interest. Instead, the State suggests that Paredes 

offered the evidence only for a narrow purpose—to show the responsive 

conduct of Detective Swank, i.e., to demonstrate that the detective was 

sufficiently concerned by the statements to have had at least some 

doubts as to whether they had arrested the right person. 

We disagree with the State’s contention. When Paredes listed Gail 

as a witness, it must have been obvious to the prosecution that Paredes 

sought to introduce Millard’s statements to Gail for the truth of the 

matter asserted on the ground that they amounted to statements against 

interest. The State conceded as much before the court of appeals. 
8

While Paredes did not specify that ground in the reported oral 

argument on the motion in limine and the district court’s order granting 

the original motion is cryptic, the district court in its ruling for 

reconsideration squarely addressed the question of whether Millard’s 

statements qualified as statements against interest and whether there 

were sufficient corroborating circumstances to support their admission. 

We have previously held that where a question is obvious and ruled upon 

by the district court, the issue is adequately preserved. State v. Williams, 

695 N.W.2d 23, 27–28 (Iowa 2005). As a result, we hold that the 

exclusion of Millard’s statements was sufficiently preserved for appeal.1

On the other hand, we hold that the State has not preserved the 

issue of Millard’s unavailability to testify at trial. While the court of 

appeals decided in favor of the State on this ground, the State did not 

raise the issue in its appellate brief. At oral argument before this court, 

counsel for the State candidly and properly conceded that the issue had 

been waived. We agree and decline to preserve an issue which the State 

has not raised in brief and concedes is not properly before the court.

IV. Admissibility of Statements.

A. Introduction. This appeal focuses on the proper interpretation 

of Iowa Rule of Evidence 5.804(b)(3), which creates an exception to the 

general prohibition against hearsay statements. This rule provides for 

the introduction of:

A statement which was at the time of its making so far 

contrary to the declarant’s pecuniary or proprietary interest, 

or so far tended to subject the declarant to civil or criminal 

 1Counsel should develop a clear record at trial rather than assume that the 

district court will rule on the issue and that an appellate court will find that the issue 

was obvious to trial participants. By failing to make a clear record, counsel takes an 

unnecessary risk that the issue, which could be vital to the prosecution or defense, will 

not be preserved. 
9

liability . . . that a reasonable person in the declarant’s 

position would not have made the statement unless believing 

it to be true. 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.

Our rule of evidence is identical in all relevant aspects to its federal 

counterpart, Federal Rule of Evidence 804(b)(3). As a result, 

interpretations of the federal rule are often persuasive authority for 

interpretation of our state rule. State v. Dullard, 668 N.W.2d 585, 593 

(Iowa 2003). Federal case law, however, is not binding, and we are free 

to develop our own approach to legal questions under the Iowa rule.

In this case, Paredes claims that the trial court should have 

admitted the various statements made by Millard to Gail as statements 

against interest under rule 5.804(b)(3). Paredes claims that admissible 

statements made by Millard include: her statement that she had begun 

spanking her two-month-old baby, her statement that Paredes did not 

hurt the baby and her hinting that maybe she was responsible, her 

statement that she did not want Paredes to take the fall, her questions 

and comments about criminal penalties, and her silence or lack of 

contradiction when Gail spoke to her as if she were the perpetrator. 

Paredes further asserts that the statements were sufficiently 

corroborated under the totality of facts and circumstances to require 

their admission into evidence. Paredes notes that he and Millard were 

the child’s only caregivers during the time when the injuries were 

inflicted. Paredes points to testimony that Millard’s demeanor during the 

ride to the hospital was not quite what one would expect of a new 

mother’s reaction under the circumstances. Paredes also observes that 

Millard attempted to shift blame to her sister-in-law, Jimenez. Jimenez, 

however, testified that she had observed Millard treat the infant
10

inappropriately, including shaking him prior to his admission to the 

hospital. All these circumstances, according to Paredes, tend to 

corroborate Millard’s inculpatory statements. Finally, Paredes asserts 

that the failure to allow admission of Millard’s statements was not 

harmless, requiring reversal of his conviction. 

The State counters that Millard’s statements were not sufficiently 

inculpatory that a reasonable person in her position would not have 

made them unless they were true. The State stresses that Millard, in 

fact, did not admit to anything. The State argues that Millard spoke only 

hypothetically and that she was primarily upset because she did not 

want her boyfriend to take the fall. Rather than admitting guilt, the 

State contends that Millard, if anything, was offering a mental illness 

defense of diminished responsibility or not guilty by reason of insanity, 

which would preclude her from criminal liability. 

In addition, the State contends that even if Millard made 

statements adverse to her penal interest, there was insufficient 

corroboration of her claims to allow their admission. The State notes 

that Millard’s statements, which were made a week after the assault and 

after she had numerous opportunities to acknowledge her role but did 

not do so, amounted to vague comments of the “maybe I did, maybe I 

didn’t variety,” provided no details regarding her alleged mental problems 

that caused her to forget her culpability, were not made under oath, 

reflected not an admission as much as an effort to escape criminal 

liability, and were motivated primarily by a desire to clear her boyfriend

while still avoiding punishment herself. 

In order to understand the context of this dispute, we survey the 

common-law approach to admission of hearsay statements against penal 

interest, the history of the development of the federal rule, and the 
11

subsequent case law that has developed under the federal rule and 

substantially similar state rules. 

B. Common-Law Approach. At common law, the hearsay rule 

was more broadly applied than is the case under modern practice. The 

historical underpinnings of the hearsay rule were concerns about 

reliability and trustworthiness of statements that were not made under 

oath and were “not subject to cross-examination by opposing counsel to 

test the perception, memory, veracity, and articulateness of the out-ofcourt declarant.” Emily F. Duck, The Williamson Standard for the 

Exception to the Rule Against Hearsay for Statements Against Penal 

Interest, 85 J. Crim. L. & Criminology 1084, 1085 (1995) [hereinafter 

Duck].

Over time, however, exceptions to the hearsay rule began to 

develop in the common law when statements displayed sufficient indicia 

of reliability. Id. In particular, the common law began to recognize that 

statements against pecuniary or proprietary interest were generally 

trustworthy. Id. at 1086. The rationale behind these developing 

exceptions was the notion that a reasonable person would not make a 

statement against his pecuniary or proprietary interest unless the 

statement was true. Id.

The common law, however, refused to allow admission of hearsay 

statements against penal interest. Id. In a much cited case, the House 

of Lords in The Sussex Peerage, 8 Eng. Rep. 1034 (H.L. 1844), refused to 

allow into evidence a statement against penal interest. Such commonlaw opinions cited concern that declarations against penal interest might 

be collateral to the main statement, may be motivated by a desire to 

curry favor with authorities, or may be designed to lessen the culpability 

of the declarant by shifting most of the blame for the criminal offense to 
12

another. Id.; Andrew R. Keller, Note, Inculpatory Statements Against 

Penal Interest and the Confrontation Clause, 83 Colum. L. Rev. 159, 162 

(1983) [hereinafter Keller].

In 1913, the United States Supreme Court considered the 

admissibility of statements against penal interest in Donnelly v. United 

States, 228 U.S. 243, 33 S. Ct. 449, 57 L. Ed. 820 (1913). Over a dissent 

by Justice Oliver Wendell Holmes, the majority in a cursory opinion 

adopted the common-law rule of excluding such statements, apparently 

concluding that the approach in The Sussex Peerage was not worthy of 

reexamination. Donnelly, 228 U.S. at 273–76, 33 S. Ct. at 459–60, 57 

L. Ed. at 833–34.

The common-law approach—a blanket exclusion of hearsay 

statements against penal interest—had the advantage of providing a 

clear rule that was easy to apply. But the one-size-fits-all rule also had 

the potential of producing injustice in particular cases. While some 

statements against penal interest may be highly suspect, others seem 

highly probative. As noted in Justice Holmes’ dissent, “[N]o other 

statement is so much against interest as a confession of murder.” Id. at 

278, 33 S. Ct. at 461, 57 L. Ed. at 834 (Holmes, J., dissenting). 

If the purpose of a dissent is to influence the future direction of the 

law, Holmes’ dissent in Donnelly was a success. Subsequent academic 

writers attacked the common-law rule barring admission of hearsay 

statements against penal interest. Failure to include at least some 

statements against penal interest was assailed as a “nuisance” by John 

H. Wigmore and lacking in rational consistency by Edmond M. Morgan. 

David Robinson, Jr., From Fat Tony and Matty the Horse to the Sad Case 

of A.T.: Defensive and Offensive Use of Hearsay Evidence in Criminal 

Cases, 32 Hous. L. Rev. 895, 898 nn. 8–9 (1995). While the approach in 
13

Donnelly continued to be applied by many American courts, the stage 

was set for a change.

C. Development of Federal Rule of Evidence 804(b)(3). In 

1969, the Advisory Committee to the Standing Committee on Rules of 

Practice and Procedure completed its first draft of the Federal Rules of 

Evidence. Keller, 83 Colum. L. Rev. at 174. The first draft departed 

markedly from the common-law rule adopted in Donnelly and instituted 

an exception for some statements against penal interest. Duck, 85 J. 

Crim. L. & Criminology at 1086–87. Nevertheless, the original draft 

refused to admit “statements against penal interest that inculpated the 

defendant, citing their inherent evidentiary unreliability.” Id. at 1087. 

The Supreme Court omitted the restriction against inculpatory 

statements against penal interest when it issued the official draft of the 

Federal Rules of Evidence. Id. 

The proposed rule drew strong opposition. The United States 

Department of Justice attacked the proposed rule on the ground that it 

would allow too many unreliable exculpatory statements into evidence. 

Peter W. Tague, Perils of the Rulemaking Process: The Development, 

Application, and Unconstitutionality of Rule 804(b)(3)’s Penal Interest 

Exception, 69 Geo. L.J. 851, 869–70 (1981) [hereinafter Tague]. In 

addition to the Justice Department, Senator John L. McClellan believed 

that the new rule could potentially undermine effective law enforcement. 

Id. at 873.

Proponents of the new approach, however, received a boost from 

the United States Supreme Court in the 1973 case of Chambers v. 

Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). In 

this case, the Supreme Court ruled that it was a denial of due process to 

refuse to allow a defendant to use evidence of a confession made by 
14

another on hearsay grounds. Chambers, 410 U.S. at 302, 93 S. Ct. at 

1049, 35 L. Ed. 2d at 313. While Chambers did not involve a case where 

the declarant was unavailable, it did stand for the proposition that under 

at least some circumstances, out-of-court admissions or statements 

against penal interest could be so probative that it would be a denial of 

due process to refuse to allow their admission.

In the end, a compromise was reached between members of 

Congress who believed that admissions against penal interest should be 

treated similarly to admissions against pecuniary or proprietary interests 

and those who opposed broad admission of statements against penal 

interest. Tague, 69 Geo. L.J. at 873. The first sentence of the 

compromise rule generally allowed admission of a “statement” that at the 

time of its making was “so far contrary” to a declarant’s interest, or that 

“so far tended” to subject a declarant to civil or criminal liability that a 

reasonable person in the declarant’s position would not have made the 

statement unless believing it to be true.

Congress, however, added another sentence to the rule not found 

in the original draft. Specifically, Congress added a sentence that 

provided that 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. Id. at 876. This second sentence created an apparent 

asymmetry between admission of hearsay statements against penal 

interest offered by the prosecution tending to inculpate the accused and 

hearsay statements against penal interest offered by the defense to 

exculpate the accused.2

 2Some of the imbalance, however, has been corrected by Crawford v. 

Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), which prohibits 
15

D. Interpretation of Relevant Elements of Rule of Evidence 

5.804(b)(3). In determining whether a statement is admissible under 

rule 5.804(b)(3) several questions arise.

1. Meaning of term “statement.” The first question under rule 

5.804(b)(3) is the scope of the term “statement.” There are several 

possible approaches. The term could broadly refer to an entire narrative. 

Conversely, the term narrowly could mean only individual factual 

assertions. Or, the term could mean individual factual assertions along 

with collateral material necessary to understand the context in which the 

factual assertions are made.

The United States Supreme Court confronted the meaning of the 

term “statement” in Williamson v. United States, 512 U.S. 594, 114 S. Ct. 

2431, 129 L. Ed. 2d 476 (1994). Prior to Williamson, federal courts were 

divided on the question of the admissibility of collateral, noninculpatory 

statements contained in a confessional narrative. John P. Cronan, Do 

Statements Against Interest Exist? A Critique of the Reliability of Federal 

Rule of Evidence 804(b)(3) and Proposed Reformation, 33 Seton Hall L. 

Rev. 1, 8 (2002) [hereinafter Cronan]. In Williamson, Justice O’Connor 

wrote for the majority that each individual statement within a narrative 

must be evaluated to determine whether it was admissible under the 

rule. Williamson, 512 U.S. at 600–01, 114 S. Ct. at 2435, 129 L. Ed. 2d 

at 483. Justice O’Connor noted that “reasonable people, even reasonable 

people who are not especially honest, tend not to make self-inculpatory 

statements unless they believe them to be true.” Id. at 599, 114 S. Ct. at 

2435, 129 L. Ed. 2d at 482. On the other hand, she noted that 

_____________________________

the prosecution from offering into evidence testimonial admissions against the accused 

under the Confrontation Clause. Crawford, 541 U.S. at 68, 124 S. Ct. at 1374, 158 

L. Ed. 2d at 203. 
16

trustworthy statements against interest can be interspersed in a 

narrative with other statements that do not have the same level of 

credibility. Id. at 600–01, 114 S. Ct. at 2435, 129 L. Ed. 2d at 483–84. 

Because of this inherent tension, we adopt the middle-ground 

approach. We hold that only inculpatory statements and the collateral 

material necessary to provide context to the statements are admissible 

under our rule of evidence. When presented with a writing or narrative 

testimony, the district court must sift through it and admit the wheat 

and discard the chaff as suggested by Justice O’Connor in Williamson. 

2. Threshold requirement of adversity. The second question 

presented under the rule is whether the statement is sufficiently 

inculpatory as to amount to a statement against penal interest. Under 

our rule, a statement against penal interest must have “so far tended” to 

inculpate the accused “that a reasonable person in the declarant’s 

position would not have made the statement unless believing it to be 

true.” Iowa R. Evid. 5.804(b)(3). This requirement is designed to 

establish a threshold level of trustworthiness of the underlying 

statement. 

Although not expressly required, this adversity requirement 

implicitly demands that the person knew or at least believed that the 

statement was against penal interest at the time it was made. 4

Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 496, at 

813–14 (2d ed. 1994) [hereinafter Mueller & Kirkpatrick]; 5 Clifford S. 

Fishman, Jones on Evidence, Civil and Criminal § 36:67, at 584 (7th ed. 

1992) [hereinafter Fishman]. Otherwise, the rationale of the exception, 

namely, that a reasonable declarant would not make a statement against 

interest unless true, would be undermined. 
17

The threshold adversity requirement also poses a question of 

degree. Some cases indicate that a statement does not come within the 

rule unless the statement squarely and unequivocally implicates the 

declarant in criminal activity or is tantamount to a confession. See, e.g., 

United States v. Bonty, 383 F.3d 575, 579 (7th Cir. 2004). The rationale 

in these cases being that some statements are simply so vague or 

equivocal that they do not really amount to statements against interest. 

Others cases suggest a lower standard. See, e.g., United States v. 

Candoli, 870 F.2d 496, 509 (9th Cir. 1989); United States v. Toney, 599 

F.2d 787, 790 (6th Cir. 1979); United States v. Hyde, 574 F.2d 856, 863 

(5th Cir. 1978). These cases tend to emphasize the “so far tended” 

language in the rule which suggests that incriminating statements which 

amount to less than a full confession may be admissible. Most 

commentators also believe that statements that fall short of a confession 

are the kinds of statements that should be admitted under the rule. 4

Mueller & Kirkpatrick § 496, at 815–16; 5 Fishman § 36:87, at 646.

Given the broad and general language of the rule, especially the “so 

far tended” clause, we conclude that a statement need not amount to a 

full confession in order to be admissible as a statement against penal 

interest. See United States v. Thomas, 571 F.2d 285, 288–89 (5th Cir. 

1978); United States v. Barrett, 539 F.2d 244, 251 (lst Cir. 1976). 

There also is a question regarding the proper result when there are 

potentially conflicting motivations for making the incriminating 

statements. For example, a father may claim that he alone possessed 

drugs, a statement that, if believed, would exonerate his son. United 

States v. Paulino, 445 F.3d 211, 218 (2d Cir. 2006). While the statement 

itself is clearly against penal interest, the father also has a strong motive 

to lie to protect his son. Under these circumstances, some courts have
18

taken a relatively strict approach, excluding statements where there are 

possible explanations or motives that suggest the declarant may be lying. 

See United States v. Pena, 527 F.2d 1356, 1361 (5th Cir. 1976) (finding 

statements not sufficiently against interest where the declarant had 

mixed motives, including proper role as an informant, to make the 

incriminating statement). Other courts, however, have indicated that 

when there are conflicting motivations for making an incriminating 

statement, the issue is best resolved by the jury. Cf. Candoli, 870 F.2d 

at 509 (noting that conflicts in a statement against interest goes to the 

weight the jury should afford the evidence, not to its admissibility).

Like judges, commentators also seem divided on the issue. The 

Fishman treatise admits that there is no firm rule on how the issue 

should be resolved, but suggests that where a statement offered by a 

declarant as exculpatory evidence has some tendency to expose the 

declarant to criminal liability but also fulfills a self-serving purpose, the 

court must assess the probabilities. 5 Fishman § 36:66, at 583–84. 

Mueller and Kirkpatrick suggest that statements should be excluded 

when the motivation undermines its trustworthiness. 4 Mueller & 

Kirkpatrick § 496, at 819–20. The Weinstein treatise, however, appears 

to have more faith in juries, suggesting that determination of the 

declarant’s credibility “should not be used as a means of usurping the 

jury’s function.” 5 Joseph M. McLaughlin et. al, Weinstein’s Federal 

Evidence § 804.06[5][b], at 804–68 (2d ed. 2009).

We conclude that the use of the term “tended” in the rule suggests 

that it is not necessary that the statement be an explicit admission. We 

also conclude that the presence of conflicting motivations is ordinarily a 

question for the jury to consider. State v. DeWitt, 597 N.W.2d 809, 811 
19

(Iowa 1999) (noting that the meaning and weight of an inculpatory 

statement is ordinarily for the jury to determine).

3. Corroborating circumstances. The third question presented 

under this rule is the scope of the corroboration requirement when the 

statement against interest is being offered to exculpate the accused. Like 

the parties who participated in the development of the rule, subsequent 

courts have struggled over the meaning of corroboration contained in the 

last sentence of rule 5.804(b)(3). The corroboration rule must require 

something more than the inherent trustworthiness associated with a 

declaration against interest. Otherwise, the additional sentence would 

be written out of the rule. But what exactly is required?

Some applications of the corroboration rule are easy. Over 200 

persons confessed to killing the Lindbergh baby but had no connection 

whatsoever to the crime. Cronan, 33 Seton Hall L. Rev. at 21. While the 

confessions might have been unequivocal and obviously against penal 

interest, they were of no probative value due to the total lack of

corroborating circumstances. 

In closer cases, however, the issues assume much sharper relief. 

For instance, does the corroboration requirement affirmatively require 

the defendant to offer extrinsic evidence that tends to support the 

trustworthiness of the statement? What if there is no extrinsic evidence 

affecting the trustworthiness of the statement? Regardless of the answer 

to these questions, what degree of corroboration is required to “clearly 

indicate” the trustworthiness of the statement?

Some courts have suggested that corroboration requires the 

presence of extrinsic evidence that supports the inculpatory statements 

of the declarant. See United States v. Forest, 355 F.3d 942, 955 (6th Cir. 

2004), rev’d on other grounds by Garner v. United States, 543 U.S. 1100, 
20

125 S. Ct. 1050, 160 L. Ed. 2d 1001 (2005). Other courts have indicated 

that such independent evidence is irrelevant and that a court should 

only consider the circumstances under which the inculpatory statement 

was made. See United States v. Barone, 114 F.3d 1284, 1295–96 (lst Cir. 

1997).

Given the broad, general language of the last sentence of the rule, 

however, the best approach to determining whether a statement is 

adequately corroborated appears to be a multifactored test in which all 

evidence bearing on the trustworthiness of the underlying statement may 

be considered. United States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 

1995); see 4 Stephen A. Saltzburg, Michael M. Martin, & Daniel J. Capra, 

Federal Rules of Evidence Manual § 804.02[9], at 804–19 to –20 (9th ed. 

2006) [hereinafter Saltzburg]. No one criterion would be determinative, 

but the district court could consider a wide variety of facts and 

circumstances in making the ultimate determination of admissibility. 

For example, under the multifactor test, one consideration would 

be the relationship between the declarant and the defendant. In some 

cases, the relationship might be sufficient to exclude an admission 

against penal interest, for example, where a father already implicated in 

a drug transaction seeks to further inculpate himself and exculpate his 

son. Paulino, 445 F.3d at 219–20. On the other hand, where there are 

sufficient other circumstances that tend to corroborate an inculpatory 

statement, the mere fact that a father is exculpating a son may not bar 

admission. United States v. Paguio, 114 F.3d 928, 933 (9th Cir. 1997).

The information within the statement itself may also be considered 

as an element of corroboration. Is the statement so contradictory as to 

be not creditable? As Judge Posner has pointed out, however, a court 

must be careful not to usurp the role of a jury by making credibility 
21

determinations that are outside the proper scope of the judicial role. 

United States v. Amerson, 185 F.3d 676, 692 (7th Cir. 1999) (Posner, 

C.J., dissenting). 

Courts determining whether there are sufficient corroborating 

circumstances consider a number of factors in making the 

determination. The factors considered often include: 

(1) whether there is any apparent motive for the out-of-court 

declarant to misrepresent the matter, . . . (2) the general 

character of the speaker, . . . (3) whether other people heard 

the out-of-court statement, . . . (4) whether the statement 

was made spontaneously, . . . (5) the timing of the 

declaration[, and (6)] the relationship between the speaker 

and the witness. 

United States v. Alvarez, 584 F.2d 694, 702 n.10 (5th Cir. 1978); accord 

State v. Martinez, 621 N.W.2d 689, 693–94 (Iowa Ct. App. 2000). 

A second major issue under the corroboration requirement is the 

amount or level of corroboration required. What amount of evidence is 

sufficient to provide corroboration clearly indicating trustworthiness? 

While the term “clearly” is a relatively strong term, the word “indicating,”

particularly in the law of evidence, is comparatively weak. Considering 

the language alone, it seems reasonable to conclude that there may be 

facts or circumstances that clearly indicate trustworthiness, even though 

a reasonable jury might conclude otherwise. A number of cases seem to 

take this kind of approach. See, e.g., United States v. Doyle, 130 F.3d 

523, 543–44 (2d Cir. 1997); United States v. Garcia, 986 F.2d 1135, 

1140–41 (7th Cir. 1993).

As noted by one set of commentators, it makes no sense to set the 

corroboration standard so high that if a defendant can meet it, he would 

“probably never have been charged or tried in the first place.” 4 

Saltzburg § 804.02[9], at 804–21. On the other hand, the defendant’s 

own claim of innocence cannot be sufficient corroboration. Otherwise, 
22

the corroboration requirement would be read out of the statute. Id. In 

order to balance these competing interests, a leading treatise advanced

the following standard:

“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. If, for example, the proof is undisputed that 

the person confessing to a shooting could not have been at 

the scene of the crime because he was in prison, it will be 

excluded. But if there is evidence that he was near the scene 

and had some motive or background connecting him with 

the crime that should suffice.”

People v. Barrera, 547 N.W.2d 280, 289 (Mich. 1996) (quoting 4 

Weinstein & Berger, Evidence ¶ 804(b)(3)[03], at 804–154 to –55).

We do not adopt a hard and fast rule regarding corroboration. 

Instead, we conclude that each statement against interest must be 

evaluated in context. Clearly, specious assertions, such as “I killed the 

Lindbergh baby,” by persons completely unconnected with the time and 

place of the abduction and murder, lack corroboration and should be

excluded. On the other hand, if a declarant is tied to the time and place 

of the crime and the statement has substantial plausibility, the 

corroboration requirement has been met. 

E. Application of Principles to Current Case. Applying these 

principles to this case, we conclude that Millard did make statements 

against interest under rule 5.804(b)(3). She stated that Paredes “did not 

do it,” that he “would not hurt the baby,” that she “does not want her 

boyfriend to take the fall” for the child’s injuries, that Paredes “is not that 

kind of guy, not violent,” and that he “did not take care of the baby that 

much.” Considered in isolation, these statements merely exculpate 

Paredes, but they are plainly self-inculpatory when considered in 

context. Except for a brief fifteen-minute interval when the baby was 

cared for by Paredes’ sister, Millard and Paredes were the infant’s only 
23

caregivers when the injuries were inflicted. As a result, by making 

statements tending to exculpate Paredes, Millard was indirectly 

implicating herself as the person who caused the injuries. These 

statements were not hypothetical when evaluated in the proper context.

In addition, Millard made statements that were directly 

inculpatory. She stated that the baby had been crying, that she yelled at 

him to “shut up,” and that she had “started spanking him lately,” which 

she claimed did not hurt him since he wore a diaper. Yelling “shut up” 

at a crying two-month-old shows obvious lack of self-control. Further, 

spanking a two-month-old child for crying, even with a diaper on, is an 

admission of inappropriate behavior that could give rise to an inference 

that Millard was the person who injured the child.3

Finally, Millard asked Gail what would happen to her if it was 

discovered that she did hurt the baby. Although she at no time directly 

admitted that she was responsible for the injuries, an inquiry about 

potential sanctions tends to suggest that she may have been responsible. 

While it is true, as the State asserts, that Millard couched her questions 

about potential sanctions in hypothetical terms, we conclude that the 

statements tended to shift responsibility away from Paredes and toward 

Millard. 

 

We further note that Gail herself considered the statements 

significant. Twice during the conversation she admonished Millard that 

she needed to consult with her attorney. After the conversation, she 

prepared a contemporaneous memorandum and forwarded the 

 3The State at oral argument conceded that the statement about spanking a twomonth-old would likely be a statement against interest, but suggested that the evidence 

would be merely cumulative. The State notes that at trial, Paredes’ sister testified that 

Millard spanked the child. Paredes’ sister, however, could have been motivated to shift 

blame for the child’s injuries away from her brother. As a result, we do not find the 

evidence cumulative. 
24

memorandum to her supervisors, who in turn provided it to local law 

enforcement authorities. It is clear that Gail and her supervisors 

recognized the potential criminal implications of the conversation. As a 

result, we conclude that the above statements amount to statements 

against interest under Iowa Rule of Evidence 5.804(b)(3). 

We do not conclude, however, that Millard’s failure to contradict 

Gail when the social worker “kept talking to her as if she did it” amounts

to an admissible tacit admission. Whether and under what 

circumstances silence should be regarded as an admission has been 

subject to considerable debate. See Commonwealth v. Dravecz, 227 A.2d 

904, 906–07 (Pa. 1967) (quoting various contradictory proverbs about 

silence such as “Silence gives consent” with “Silence is Golden” in 

rejecting rule of admission by silence); Maria L. Ontiveros, Adoptive 

Admission and the Meaning of Silence: Continuing the Inquiry into 

Evidence Law and Issues of Race, Class, Gender, and Ethnicity, 28 Sw. U. 

L. Rev. 337, 341–45 (1999) (discussing sociological differences of the 

meaning of silence); Peter Tiersma, The Language of Silence, 48 Rutgers 

L. Rev. 1, 8–9 (1995) (discussing the nuances of the “meanings” of 

silence, which can include consent, apathy, preoccupation, or fear). 

There is federal authority for the proposition that a party may 

adopt a statement through silence under some circumstances and that 

such evidence may be admitted under the federal rules as an admission 

by a party-opponent. See United States v. Robinson, 275 F.3d 371, 383 

(4th Cir. 2001); Marshall v. Young, 833 F.2d 709, 716 n.3 (7th Cir. 1987). 

Whether we should extend this reasoning to allow the introduction of 

tacit admissions under the statements against interest exception is a 

question best left for another day. While we have traditionally accepted 

admissions by silence or tacit admissions, we also stressed that because 
25

silence is often more ambiguous than verbal expression, tacit admissions

should be received with caution. Friedman v. Forest City, 239 Iowa 112, 

133–34, 30 N.W.2d 752, 763 (1948). In this case, Gail apparently 

adopted the hypothetical framework constructed by Millard, but there 

was no evidence that Gail accused Millard of criminal conduct in a way 

that would require a response by a reasonable person. See United States 

v. Moore, 522 F.2d 1068, 1074–76 (9th Cir. 1975). As a result, the 

evidence of Millard’s tacit admissions is not admissible under rule

5.804(b)(3). 

Even though Millard’s express statements are sufficiently 

inculpatory to qualify as admissions against interest under Iowa Rule of 

Evidence 5.804(b)(3), they are not admissible to exculpate Paredes unless 

corroborating circumstances indicate their trustworthiness. We have 

previously held that it is not necessary to demonstrate corroborating 

evidence of the statements themselves. Rather, as noted above, we 

conclude that the focus is on whether the circumstances under which 

the statements were made are sufficiently trustworthy to allow a jury to 

make the ultimate determination concerning their truth. DeWitt, 597 

N.W.2d at 811. 

We conclude that there are sufficient corroborating circumstances 

to allow admission of Millard’s inculpatory statements.4

 4The State argues that some of the corroborating circumstances of 

trustworthiness offered by Paredes, including Jimenez’s testimony, were not included in 

the offer of proof, but was evidence adduced at trial. The State claims that under 

applicable precedents, evidence adduced at trial but not contained in the offer of proof 

may not be considered. We disagree. The State’s argument is premised on the need to 

offer sufficient indicia of reliability for Confrontation Clause purposes under the preCrawford test, rather than the corroboration requirement of rule 5.804(b)(3). See 

Hallum, 585 N.W.2d at 257. In any event, sufficient corroboration is found within the 

context of the Millard statements themselves to support admission.

 First, Millard 

chose to make these statements to someone she trusted, a person who 
26

was not directly involved in the case. On its face, it appears that Millard 

was seeking advice from Gail and not trying to manipulate the system. 

Second, Millard’s statements to Gail find at least some support in the 

record—Millard was a caregiver to the infant at the relevant time, her 

statements are consistent with Paredes’ recantation of his confession, 

and her statements are to some extent corroborated by the testimony of 

Paredes’ sister. 

There are, of course, potential problems with Millard’s statements. 

In particular, it is possible that she was exploring a plan to manipulate 

the system by falsely exonerating her boyfriend while avoiding criminal 

sanctions because of her claimed mental incapacity or because of her 

status as a minor. The standard, however, is whether a statement might

have been made in good faith and that it could be true. Under the record 

presented here, we conclude that a reasonable jury could find Millard’s 

statements truthful. As such, the district court erred by refusing to 

admit her statements under Iowa Rule of Evidence 5.804(b)(3).

F. Harmless Error. The State contends that Paredes’ conviction 

nonetheless should be affirmed because the exclusion of Millard’s 

statements amounted to harmless error. Paredes responds that Millard’s 

statements were a vital part of his defense.

Reversal of a ruling which admits or excludes evidence is not 

necessary unless a substantial right of a party is affected. Iowa R. Evid. 

5.103(a). To determine whether a substantial right of a party has been 

affected when a nonconstitutional error occurs, we employ harmless 

error analysis and ask: “ ‘Does it sufficiently appear that the rights of the 

complaining party have been injuriously affected by the error or that he 

has suffered a miscarriage of justice?’ ” State v. Sullivan, 679 N.W.2d 19, 

29 (Iowa 2004) (quoting State v. Trudo, 253 N.W.2d 101, 107 (Iowa 
27

1977)). In considering harmless error, “ ‘[W]e presume prejudice—that 

is, a substantial right of the defendant is affected—and reverse unless 

the record affirmatively establishes otherwise.’ ” Newell, 710 N.W.2d at

19 (quoting Sullivan, 679 N.W.2d at 30). 

After reviewing the record as a whole, we cannot find the error 

harmless. In this case, Paredes put forth a general denial defense. The 

only other plausible suspect was Millard. While Jimenez certainly 

pointed suspicion at Millard, she is the defendant’s sister whose 

credibility is questionable both because she has a potential motive to 

exonerate her brother and because of the evolution of her statements to 

law enforcement. 

Millard’s statements to Gail would have clearly aided the defense in 

its only available theory, namely, that Millard was responsible for the 

child’s injuries. This is especially true as the State’s case rested 

primarily on Paredes’ confession and access to the child. The 

introduction of Millard’s statements would have additionally answered

the jury’s likely questions of where the mother was and why she did not 

testify in the case. See Chia v. Cambra, 360 F.3d 997, 1005–06 (9th Cir. 

2004) (finding due process violation where statements against interest by 

another suspect were suppressed as the statements were the defendant’s 

best and only evidence of innocence). On this record, the State has not 

affirmatively established that the exclusion of Millard’s statements did 

not injuriously affect Paredes’ substantial rights. Reversal of Paredes’

conviction is, therefore, required.

V. Conclusion.

We hold that the court of appeals erred when it affirmed Paredes’

conviction on the ground that Paredes failed to show that Millard was 

unavailable to testify at trial. We further hold that Millard’s statements 
28

constitute statements against interest that were erroneously excluded 

from evidence in Paredes’ trial. Under all the facts and circumstances, 

we conclude that the error was not harmless. As a result, the decision of 

the court of appeals is vacated, the judgment of the district court is 

reversed, and the matter is remanded to the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT REVERSED AND CASE REMANDED.

All justices concur except Cady, J., who dissents and Baker, J., 

who takes no part.
29

#140/07–0237, State v. Paredes

CADY, Justice (dissenting).

I respectfully dissent. The majority makes two holdings in 

reaching its decision that branch out too far from the trunk of the legal 

principle from which they are derived. I would affirm the decisions of the 

court of appeals and the district court. 

I. Role of the Court. 

The majority correctly identifies that the standard of review for the 

admissibility of hearsay is for the correction of errors at law. State v. 

Newell, 710 N.W.2d 6, 18 (Iowa 2006). Notwithstanding, it establishes a 

rule that gives the jury discretion to consider the admissibility of 

statements against interest made by a declarant with mixed motivations 

for making the statement. This approach is not only inconsistent with 

our reviewing standard, but it is also inconsistent with the important 

gatekeeping function of courts.

In performing the legal task of deciding the admissibility of hearsay 

evidence, a district court must decide certain preliminary questions by 

applying the law to existing evidence. Iowa R. Evid. 5.104(a). Once the 

courts decide the evidence is admissible, the jury determines its weight 

and credibility. Iowa R. Evid. 5.104(e). 

Before a court can admit hearsay in the form of a statement 

against the interest of an unavailable declarant for the purposes of 

exculpating a defendant, several threshold requirements must be 

satisfied. One such threshold requirement is that the statement be 

sufficiently inculpatory to amount to a statement against penal interest. 

This important requirement is tied to the fundamental premise for 

admitting hearsay—cross-examination of the declarant is unnecessary to 

probe the truth of the statement because the statement itself is 
30

inherently trustworthy. Chambers v. Mississippi, 410 U.S. 284, 300–01, 

93 S. Ct. 1038, 1048–49, 35 L. Ed. 2d 297, 312 (1973) (stating that 

whether the confession is “in a very real sense self-incriminatory and 

unquestionably against interest” is a significant indicator of reliability).

In this case, the majority abandons trustworthiness as an essential 

predicate to the admissibility of hearsay. It holds that in cases, such as 

this case, in which the surrounding circumstances suggest mixed 

motives for a declarant to make a statement (which creates doubts about 

the trustworthiness of the statement), the jury, not the court, should 

decide if the statement is against the declarant’s interest. The 

Mississippi Supreme Court has eloquently described its reasons for 

disallowing exculpatory declarations against interest when mixed motives 

are apparent: “Many motives, apart from the love of truth and justice, 

induce men to assume the gravest risks.” Brown v. State, 55 So. 961, 

962 (Miss. 1911). The new rule declared by the majority today transfers 

a historical judicial function to the jury and essentially gives the jury the 

discretion to consider hearsay evidence. 

The gatekeeping function of the court should be intensified, not 

eliminated, when the trustworthiness of the hearsay at issue is in doubt. 

The new rule created by the majority is detached from the purpose of 

creating exceptions to the rule against hearsay and conflicts with the 

time-honored role of the court in the trial of a case. It gives juries power 

well beyond their traditional role and undercuts the importance of crossexamination in our system of justice. 

II. Preservation of Error. 

The doctrine of preservation of error is built on the premise that

trial courts must first decide legal questions, and appellate courts review 

the decisions made. The doctrine is also built on the principle of 
31

fairness, which has given rise to the principle that neither party to a case 

may normally assert a claim or defense on appeal they could have, but 

failed to, raise at trial. DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002). 

In this case, there is nothing in the trial record to reveal Paredes 

raised the claim that the hearsay testimony of the social worker was 

admissible as a declaration against interest. If he had, he would have 

been required to establish the threshold requirements of the rule, 

including the unavailability of the declarant. Nevertheless, the 

preservation-of-error doctrine does not now preclude Paredes from 

claiming on appeal that the district court erred by failing to admit the 

evidence as a statement against interest because the district court used 

the statement-against-interest rule as a basis for ruling the evidence to 

be inadmissible. The district court made a preliminary finding that the 

declarant was unavailable, but found the other preliminary requirements 

were not satisfied. 

On appeal, the State sought to uphold the ruling of the district 

court on the basis that the other predicate requirements of admissibility 

were not proven by Paredes. The State failed to argue on appeal that the 

evidence was inadmissible because the district court erred in finding that 

the declarant was unavailable. Nevertheless, the court of appeals upheld 

the decision of the district court, but on the basis that there was 

insufficient evidence to find that the declarant was unavailable. 

As in district court, the court of appeals decided the contested 

issue on a ground not raised or contested by the parties. Yet, if this 

factor does not preclude Paredes from raising such a ground on appeal, it 

should not preclude the State from raising a ground relied on by the 

court of appeals on further review. In other words, just as the district 

court preserved error for Paredes, the court of appeals preserved error for 
32

the State. This approach is only a matter of fairness and does not 

undermine or disadvantage Paredes in any way. He was, under the law, 

required from the inception to establish all of the requirements for the 

admissibility of the evidence as a statement against interest. The trial 

record is now available to review to determine if the evidence supports 

this requirement. 

There is, of course, no question Paredes failed to establish the 

requirement of unavailability. Therefore, Paredes should not receive the 

benefit of a new trial (with the right to have the disputed evidence 

admitted) without ever proving all the essential legal requirements for 

admission. 

The majority has failed to apply the preservation-of-error rule in 

the same manner for both parties. This is unfair and contrary to the 

dictates of DeVoss. Id. Our law should not have rules that do not apply 

the same to both parties. 

III. Conclusion.

I would affirm the decision of the court of appeals that Paredes 

failed to establish the declarant was unavailable.