§ 35.02 Rationale

• Jurisdiction: United States

§ 35.02 Rationale

Undoubtedly, there are reliable hearsay statements that do not fall within any of the exceptions specified in Rules 803 and 804. The residual exception is a way to recognize this fact by giving the trial judge authority to admit trustworthy hearsay in a particular case. Moreover, in the absence of a residual exception, a judge faced with reliable hearsay either would have to exclude it or torture a recognized exception to get the statement admitted. In addition, the drafters did not want to codify the status quo and so included the residual exceptions, because it would "be presumptuous to assume that all possible desirable exceptions to the hearsay rule have been catal ogued and to pass the hearsay rule to oncoming generations as a closed system."²

The drafters cited Dallas County v. Commercial Union Assurance Co.³ as support for the residual exception. In that case, the plaintiffs contended that a courthouse collapsed because it was struck by lightening and offered evidence of charred timbers to support this theory. The defendant insurance company, however, argued that structural deterioration caused the collapse and proffered a 1901 newspaper account of a fire in the courthouse to explain the charring. The Fifth Circuit upheld the admissibility of the newspaper account, even though it constituted hearsay and did not fall within a recognized exception, simply because it was reliable: "[I]t is inconceivable to us that a newspaper reporter in a small town would report a fire in the dome of the new courthouse—if there had been no fire."⁴ In short, charred timbers suggested lightening but the newspaper account provided an alternative explanation.

Dallas County demonstrates the value of a residual exception; the newspaper account was both reliable and necessary for a fair determination of the case. Even if the declarant (journalist) had been available after all these years had passed, the newspaper account would in all likelihood be more reliable than the reporter's memory.

The residual exceptions as proposed by the Supreme Court ran into opposition in Congress because of their open-ended nature. The proposed rule required only that the statement possess a circumstantial guarantee of trustworthiness equivalent to the exceptions in Rules 803 and 804. While the House deleted the residual exceptions,⁵the Senate restored them with the following qualifications:⁶ (1) the statement must be offered as evidence of a material fact; (2) the statement...