§ 35.06 Key Points

• Jurisdiction: United States

§ 35.06 Key Points

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 by giving the trial judge authority to admit trustworthy hearsay in a particular case.

The residual exception requires: (1) the statement must have "equivalent circumstantial guarantees of trustworthiness" as the exceptions in Rules 803 and 804; (2) the statement must be offered as evidence of a material fact; (3) the statement must be more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; (4) admission must serve the general purposes of the Federal Rules and the interests of justice; and (5) notice must be given to the other party. Two of the requirements are redundant. Rule 401 already requires materiality, and Rule 102, the purpose and construction clause, mandates "doing justice," among other things.

Trustworthiness. Numerous factors are relevant to determining reliability. 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, consider first the hearsay dangers—perception, memory, narration, or sincerity problems. It is the reduction or elimination of one or more of these...