Cited by

State v. Kiewert, 135 N.H. 338, 344 (1992) (spousal privilege “only operates to exclude testimony at trial”).

“The justification for this exception to the hearsay rule rests upon the assumption that one does not make statements that would damage oneself unless the statement is true.” State v. Kiewert, 135 N.H. 338, 343 (1992) (quotations and brackets omitted).

“The rule thus permits an out-of-court statement to be admitted at trial when: (1) the declarant is shown to be unavailable; and (2) the statement is against the declarant’s penal interest.” State v. Kiewert, 135 N.H. 338, 343 (1992).

Our review of the statutory scheme similarly reveals no other provisions using the terminology “convicted on sentences.” Furthermore, a plain reading of the phrase “convicted on sentences” suggests that the sentences must have resulted in convictions, cf. State v. Kiewart, 135 N.H. 338, 349 (1992) — a construction completely contrary to common sense.

In applying the statute, the trial court must make two findings: (1) two prior imprisonments, resulting from, (2) sentences in excess of one year.

See, e.g., State v. Maliar, 127 N.H. 816, 818 (1986) (in infanticide case, declarant admitted to shaking infant); State v. McLaughlin, 135 N.H. 669, 671-72 (1992) (in homicide case, declarant told son about murder in detail and admitted to being present during it); State v. Kiewert, 135 N.H. 338, 343-44 (1992) (statement at issue was an express confession).

Elizabeth called Ott, and I went over to his house.” An out-of-court statement made by a co-defendant is admissible against- the accused when: “(1) the declarant is shown to be unavailable; and (2) the statement is against the declarant’s penal interest.” State v. Kiewert, 135 N.H. 338, 343, 605 A.2d 1031, 1034 (1992).

State v. Kiewert, 135 N.H. 338, 347, 605 A.2d 1031, 1037 (1992) (holding that hearsay objection did not preserve for appellate review constitutional issue of right to confront and cross-examine adverse witness).

We will, therefore, look to cases interpreting the federal rule to guide us in this decision.

It is, therefore, appropriate for us to look to the interpretation of Federal Rule of Evidence 401 to assist us in construing our own rule.

Such a statement is admissible because “one does not make [a] statement[] that would damage oneself unless the statement is true.” State v. Kiewert, 135 N.H. 338, 343, 605 A.2d 1031, 1034 (1992) (quotations and brackets omitted).

[W]e will uphold the trial court’s finding unless clearly erroneous.” State v. Kiewert, 135 N.H. 338, 342, 605 A.2d 1031, 1034 (1992) (citations omitted).

Rule 804(b)(3) uses an objective test for determining whether statements are against the declarant’s interest, although the trial court is not precluded from considering evidence of the declarant’s subjective state of mind.

We will not review on appeal constitutional issues not presented below.

State v. Kiewert, 135 N.H. 338, 348, 605 A.2d 1031, 1037 (1992); State v. Nutter, 135 N.H. 162, 164, 600 A.2d 139, 140 (1991).

Cook, 135 N.H. at 660, 610 A.2d at 803; State v. Kiewert, 135 N.H. 338, 345, 605 A.2d 1031, 1035-36 (1992).

This same claim was recently rejected in State v. Kiewert, 135 N.H. 338, 605 A.2d 1031 (1992).