The Residual Exceptions to the Hearsay Rule: a Reappraisal
| Jurisdiction | Colorado,United States |
| Citation | Vol. 13 No. 10 Pg. 1818 |
| Pages | 1818 |
| Publication year | 1984 |
1984, October, Pg. 1818. The Residual Exceptions to the Hearsay Rule: A Reappraisal
In W.C.L., Jr. v. People,(fn1) the Colorado Supreme Court reversed a conviction for sexual abuse of a minor. In its ruling, the court excluded hearsay testimony, which was critical to the conviction, because it did not fit under any specific hearsay exception of the Colorado Rules of Evidence ("CRE"). The court strongly suggested that the CRE should be amended to include the residual hearsay exception found in Federal Rules of Evidence ("FRE") Rule 803(24). This exception, and an identical exception under FRE Rule 804(b) (5), was omitted when the CRE were adopted in 1979. The residual exceptions allow admission of hearsay testimony which is trustworthy and which meets other specific requirements.
This article summarizes the history of the residual exceptions to the hearsay rule and discusses how the exceptions have been applied by other state and federal courts. The article also details the facts of the W.C.L., Jr. case and notes that the Colorado Supreme Court will hold a hearing on the residual exceptions issue on November 13, 1984. Please fill out the questionnaire at the end of this article to provide feedback to the court for this hearing.
FRE Rules 803(24) and 804(b)(5) make admissible the following:
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.(fn2)
Thus, in order for hearsay evidence to be admissible under FRE Rules 803(24) and 804(b)(5), the evidence must fulfill five requirements: it must be (1) trustworthy; (2) material; (3) necessary and have probative value exceeding that of any other evidence procurable through reasonable efforts; (4) serve the interests of justice; and (5) the proponent must give advance notice to the other party of his intent to offer such evidence.
In order to meet this standard, the evidence must have circumstantial guarantees of trustworthiness equivalent to those present in the other enumerated hearsay exceptions under FRE Rules 803 and 804. In determining if these guarantees are present, courts have considered factors such as certainty that the statement was made; assurance of the declarant's knowledge of the event in question; corroborating facts; probable motivation of the declarant in making the statement; the circumstances under which the statement was made; and the possible availability of the declarant at trial for cross-examination.(fn3)
Lack of circumstantial guarantees of trustworthiness is the chief ground for excluding hearsay evidence offered under the residual exceptions. The court found circumstantial guarantees of trustworthiness lacking in Liewellyn v. State.(fn4) In Liewellyn, a lab supervisor testified about the findings of another chemist who had received and tested the suspected contraband in issue. The court held that regardless of how trustworthy the supervisor might be in relating general procedures in handling such matters, his lack of personal knowledge of the tests actually conducted made his testimony inadmissible hearsay.
In United States v. Mandel,(fn5) the government introduced testimony as to what Governor Mandel had said about his position on two pieces of legislation. The court observed that the testimony consisted of damaging statements of unidentified declarants repeated by state senators who were Mandel's longtime political enemies. The statements were made on the Senate floor in the heat...
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