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February 14, 2019 by Mindee J. ReubenDownload PDF

Changes May Be Coming to the Admissibility of Hearsay Under the Residual ExceptionMindee J. Reuben

Hearsay is an out of court statement that a party offers in evidence to prove the truth of the matter asserted in the statement. Fed. R. Evid. 801(c). Some witness statements, even if made outside of court, do not qualify as hearsay. Examples include an inconsistent prior statement by the witness given under oath, or an admission by a party against its interest. Fed. R. Evid. 801(d). Other witness statements, even if they qualify as hearsay, may be admitted under special circumstances. Fed. R. Evid. 803-804. Examples include business records or public records.

Federal Rule of Evidence 807—the “Residual Exception”—is another way that an attorney can try to introduce hearsay statements at trial (but only if no other exception applies). Rule 807 has come under much criticism by scholars because of concerns that the exception can swallow the rule. In fact, at least one study has shown that the residual exception was not just being used in rare or exceptional circumstances as intended by reference to the Rule’s legislative history.

Currently, Rule 807 permits introduction of a hearsay statement where the statement: (i) has “equivalent circumstantial guarantees of trustworthiness” as to those exceptions in Rule 803 and 804; (ii) is offered as “evidence of a material fact”; (iii) is more probative on the point for which it is offered than any other evidence”; and (iv) “will best serve the purposes of these rules and the interests of justice.” The party seeking to use such a statement must give reasonable notice to the opposing party, including the name and address of the declarant.

The Advisory Committee on Evidence Rules finds Rule 807 deficient in several respects.

First, the “equivalence” standard in Rule 807 has proved difficult to apply. Guarantees of reliability vary across Rules 803 and 804; some exceptions don’t even evaluate reliability at all when determining admissibility of hearsay. Moreover, even if a statement cannot be compared to any existing exception to satisfy the “equivalence” standard, the statement could still be trustworthy.

Second, there is a dispute among the courts as to whether corroborating evidence (in addition to circumstantial guarantees) should be considered in evaluating the trustworthiness of a statement.

Third, the requirements that the statement be “evidence of a material fact” and “best serve the purposes of these rules” and “the interests of justice” are not useful metrics for the courts and, in some respects, conflict with other language in the Rules regarding materiality.

Accordingly, the Advisory Committee on Evidence Rules has recommended that the equivalence standard be removed from the Rule, as well as the language regarding evidence of a material fact, etc. Under the proposed amendment, a court may permit the introduction of hearsay where “the statement is supported by sufficient guarantees of trustworthiness” and “is more probative on the point for which it is offered than any other evidence.” The proposed amendment also requires that a court consider corroborating evidence (or the lack of such evidence) when evaluating the trustworthiness of a statement.

The Committee has also recommended that the notice requirement of Rule 807 be modified. Among other things, the proposed modifications, if adopted, would drop the requirement that the declarant’s address be disclosed (which makes no sense when the declarant is not available), as well as that the notice must be in writing, which includes email notice. The proposed amendment also provides a good cause exception to giving prior notice, such as where an offering party does not become aware of the hearsay statement until after trial begins, or a scheduled witness becomes unavailable.

The Advisory’s Committee recommendations and explanations can be found here: Criticisms of the proposed changes to Rule 807, which were not subject to public comment, can be found by clicking here and here.

The proposed amendment will go into effect on December 1, 2019, absent Congressional action.