Offering or Opposing Hearsay Under the Residual Exceptions-a User's Guide
| Publication year | 1985 |
| Pages | 1620 |
1985, September, Pg. 1620. Offering or Opposing Hearsay Under the Residual Exceptions-A User's Guide
Two new hearsay exceptions became effective April 1, 1985, by order of the Colorado Supreme Court.(fn1) They are known as the "catch-all" or "residual" exceptions ("residuals") and contain certain substantive and procedural prerequisites to their use not found in other hearsay exceptions. The residuals already exist in similar language in the Federal Rules of Evidence and the rules of at least sixteen other states.
When the Colorado Supreme Court adopted the Colorado Rules of Evidence ("CRE") in 1980, the court intentionally omitted the residuals, noting that the vagueness and lack of standards in these exceptions made them "totally objectionable."(fn2) Much of the uncertainty associated with the use of the residuals in 1980 has now been ameliorated by a substantial body of case law.
The skilled practitioner can and should make effective use of these exceptions. The purpose of this article is to provide a ready resource and practical guide for the Colorado trial lawyer, based upon insights gained from a study of court decisions.
A three-step approach to use of the residuals can be distilled from the Rules themselves and from case law. The first step requires an answer to two questions: is the proffered statement hearsay under CRE Rule 801 and, if so, does any other hearsay exception apply? The second step is to determine whether the statement meets the residuals' substantive requirements of trustworthiness, probativeness, materiality and the interests of justice. The last step is to satisfy the procedural requirement of notice. Of course, admissibility of the statement under the residuals is always within the trial court's sound discretion.(fn3)
Unless the statement is a communication "offered to prove the matter asserted," it is not hearsay.(fn4) In addition, certain prior statements made by testifying witnesses and admissions by party opponents are not hearsay.(fn5)
If the statement is hearsay, the proponent should first seek admission of the evidence pursuant to a specific, listed exception under CRE Rules 803 or 804. The residual exceptions apply only to statements "not specifically covered by any of the foregoing exceptions."(fn6) Most courts construe this language strictly and hold that the proponent must exhaust all other possible exceptions before using the residuals.(fn7) This construction can create a dilemma when it is not clear (as is frequently the case) whether another exception permits admissibility of the evidence.
As discussed below, the proponent must give the opponent advance notice of intent to use a residual exception. The litigant who unsuccessfully relies during trial on another exception to admit hearsay may be foreclosed from using the residuals if the notice requirement has not been met. A suggested approach in this circumstance is to be prepared (including the giving of advance notice) to offer the evidence under both a residual and a nonresidual exception. Inadmissibility under an arguably applicable exception does not necessarily preclude admissibility under a residual exception.
The question most frequently raised when the proponent employs the residuals is how to determine the statement's trustworthiness. Admissibility pursuant to CRE Rules 803(24) and 804(b)(5) requires a showing that the offered evidence has circumstantial guarantees of trustworthiness equivalent to evidence admissible under the other hearsay exceptions. A recent federal court decision neatly compressed into one broad framework the various indicia of reliability found throughout the cases dealing with the residuals. In Herdman v. Smith,(fn8) the Fifth Circuit Court of Appeals listed five factors important to determining reliability:
1. The nature and character of the statement: Courts favor unambiguous, explicit statements which contain neither opinion nor speculation.(fn9) Detailed statements are generally deemed more trustworthy.
Recorded and accurately transcribed statements also "boost their own credibility."(fn11) By contrast, unsworn written statements prepared by one other than the declarant (e.g., statement of a witness taken by an...[Such] statements bespeak their own authenticity; each is replete with the detail to which only a participant and confidant would have access.(fn10)
To continue reading
Request your trial