State v. Lee Odell Fair, 327 P.3d 989

Defendant Lee Odell Fair was convicted by jury of aggravated assault for allegedly punching Gerald Blakely outside a bar (Dino’s), causing serious facial and dental injuries.
At trial Fair sought to admit testimony that an alternate perpetrator, Richard Laine, had confessed or admitted striking someone at Dino’s; Fair called six witnesses who relayed out-of-court statements attributed to Laine and one offer-of-proof testimony from Laine himself.
The district court excluded that testimony as inadmissible hearsay and held the statements did not satisfy the statement-against-interest exception (Idaho R. Evid. 804(b)(3)) and failed the reliability requirements from State v. Meister.
The court also treated Laine as unavailable but nonetheless excluded the proffered hearsay on other grounds; on appeal the Court of Appeals instead concluded Fair failed to prove Laine was unavailable under I.R.E. 804(a).
The appellate court affirmed Fair’s conviction, holding the proponent bears the burden to establish unavailability and that Laine did not validly invoke the Fifth Amendment nor demonstrate lack of memory of the subject matter.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether testimony of witnesses recounting Laine’s out-of-court statements was admissible under I.R.E. 804(b)(3) (statement against interest)	Fair: statements were admissions against Laine’s penal interest and thus admissible to exculpate Fair	State: statements were hearsay not qualifying as statements against interest or lacked corroborating reliability; some accounts implicated others or were not self-inculpatory	Court: Evidence excluded because Fair failed to show declarant (Laine) was unavailable as required by I.R.E. 804(a); exclusion affirmed
Whether Laine was "unavailable" under I.R.E. 804(a) (privilege or lack of memory) so the 804(b)(3) exception could apply	Fair: Laine initially invoked the Fifth and later declined to testify fully, so he was unavailable	State: Laine never validly asserted privilege and answered questions; he did not demonstrate lack of memory of the subject matter	Court: Laine’s initial, limited invocation of the Fifth was cured by court instruction; he answered subsequent questions and did not show lack of memory of the subject matter; proponent failed to prove unavailability

State v. Meister, 148 Idaho 236, 220 P.3d 1055 (discussing reliability requirement for 804(b)(3) statements)
State v. McDonald, 141 Idaho 287, 108 P.3d 434 (purpose of hearsay rule and cross-examination)
State v. McPhie, 104 Idaho 652, 662 P.2d 233 (principles on hearsay and confrontation)
State v. Button, 134 Idaho 864, 11 P.3d 483 (standard of review for admitting hearsay exceptions)
State v. Watkins, 148 Idaho 418, 224 P.3d 485 (appellate review of hearsay admission)
State v. Perry, 144 Idaho 266, 159 P.3d 903 (proponent bears burden to prove unavailability)
State v. Barcella, 135 Idaho 191, 16 P.3d 288 (reluctance to testify does not automatically establish unavailability; contempt admonition may be required)
Milburn v. State, 135 Idaho 701, 23 P.3d 775 (declinature to invoke Fifth and failure to call declarant undermines claim of unavailability)
Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299 (memory of making a statement is distinct from memory of subject matter for 804(a)(3))
Leer v. State, 148 Idaho 112, 218 P.3d 1173 (affirmance may rest on different correct grounds than trial court)