§ 35.03 "Equivalent Guarantee of Trustworthiness" Requirement

• Jurisdiction: United States

§ 35.03 "Equivalent Guarantee of Trustworthiness" Requirement

[A] Reliability Factors

Rule 807 requires a finding of reliability. However, requiring that the statement have "equivalent circumstantial guarantees of trustworthiness" as the exceptions in Rules 803 and 804 is not particularly helpful because those exceptions vary widely. The term "equivalent" merely muddles the rule. Numerous factors may be considered in judging reliability under Rule 807, and the trial court is accorded "considerable discretion" in this determination.¹⁰

Generally, reliability depends on (1) the circumstances surrounding the making of the statement and (2) the existence of independent corroborating factors. As for the former, an obvious starting point are the traditional hearsay dangers—"the declarant's perception, memory, narration, or sincerity concerning the matter asserted."¹¹ It is the reduction or elimination of one or more of these dangers that underlies the exceptions in Rules 803 and 804.¹² Numerous factors may supply independent corroboration.¹³However, the credibility of the witness testifying about the hearsay statement is not a factor. The witness is in court and is subject to cross-examination, and the jury decides witness credibility. This is the traditional approach to other hearsay exceptions.¹⁴

Although it was decided on confrontation, rather than evidentiary, grounds, the Supreme Court considered a state residual exception in Idaho v. Wright.¹⁵ The Court subsequently abandoned the constitutional framework on which Wright relied.¹⁶ Nevertheless, the Court listed several factors as indicative of reliability: (1) the spontaneity of the statement; (2) the consistency of the statement; (3) the lack of motive to fabricate or lack of bias; (4) the reason the declarant cannot testify; (5) the voluntariness of the statement, i.e., whether it was made in response to leading questions or made under undue influence; (6) the personal knowledge of the declarant; (7) the person to whom the statement was made, e.g., a police officer who was likely to investigate further; and (8) the time frame within which the statement was made. Note that factors (1) and (2) are "sincerity" considerations. Factor (8) is a "memory" issue.

Additional factors are whether the statement was taken under oath, whether the declarant ever recanted the statement, whether other evidence suggested the declarant was unreliable, and whether extrinsic evidence seriously undermined the declarant's version of the events.¹⁷

[B] "Near Miss" Issue

Rule 807 requires that the statement not be "specifically" covered by a Rule 803 or 804 exception. From this requirement, the argument runs, any statement close (a "near miss") to a...