The Residual Exception to the Hearsay Rule: Form Follows Substance

• Publication year: 1993
• Pages: 1197

22 Colo.Law. 1197 Colorado Lawyer 1993.

1993, June, Pg. 1197. The Residual Exception To the Hearsay Rule: Form Follows Substance

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Vol. 22, No. 6, Pg. 1197

The Residual Exception To the Hearsay Rule: Form Follows Substance

by John M. Richilano

Trials are a search for truth. However, this search must be fair. Traditionally, the factors to be considered in evaluating the truthfulness of a witness' testimony are perception, memory and narration.(fn1) Under ideal conditions, these factors are put to the test when the witness is (1) placed under oath, (2) in open court and (3) subjected to cross-examination.(fn2) These three factors might be thought of as the pillars upon which the Anglo-American search for truth is founded.

Historically, hearsay evidence was excluded because the third pillar of Anglo-American justice, cross-examination,(fn3) could not be complied with. However, it is well-known that, although testing a witness' perception, memory and narration under cross-examination is highly desirable and preferred, less than ideal conditions are more often the rule in the courts. Thus, what becomes of evidence possessing sufficient indicia of reliability, but which still falls under the fundamental definition of hearsay (an out-of-court statement other than one made by the declarant offered to prove the truth of the matter asserted)?(fn4) The answer is, it may well be admissible under the so-called residual (or "catch-all") exception to the hearsay rule contained in Colorado Rules of Evidence ("CRE") 803(24) and 804(b)(5).(fn5)

This article tracks the origins of the common law rule to the pertinent CRE and Federal Rules of Evidence ("FRE") provisions and discusses the practical aspects of the residual exception.(fn6)

A BRIEF HISTORICAL PERSPECTIVE

To say that in the beginning there was only the hearsay rule, a rule of exclusion, is only a slight exaggeration. Testimony or other evidence not tested under oath in open court subject to cross-examination generally was excluded, with certain well-recognized exceptions. These exceptions reflected the practical judgment that in certain limited circumstances evidence not subjected to cross-examination in the traditional way may nonetheless be reliable enough to be admitted in spite of this shortcoming. Despite overall adherence to the Anglo-American pillars of admissibility, the common law had eked out twenty-three specified exceptions to the hearsay rule by the time the Federal Rules of Evidence were enacted in 1970.

However, the codification of these exceptions in the Federal Rules of Evidence marked a significant shift in the way federal courts approached hearsay. The purpose and construction of the rules under Rule 102 includes the "promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined," and the twenty-three well-recognized exceptions to the hearsay rule were set forth in Article VIII "by way of illustration only."(fn7)

Hearsay evidence not falling within one of the recognized exceptions nevertheless may have greater probative value than evidence that does.(fn8) When confronted with such evidence prior to the adoption of the Rules of Evidence, courts would look to the relevancy, need and reliability of the evidence, instead of a particular class exception to the hearsay rule.(fn9) The residual exception was promulgated in recognition of the need for flexibility in the development of hearsay law, despite the fear that the illustration approach granted too much discretion in the trial judge.(fn10)

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John M. Richilano, Denver, is a sole practitioner.

Colorado adopted its version of the Rules of Evidence in 1980. Lake its federal counterpart ten years earlier, the Colorado rules initially omitted the residual exception. This omission was intentional. The Colorado advisory committee

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was auspicious of the "flimsy guidelines" of the federal rule, and feared that the phrase "circumstantial guarantees of trustworthiness" allowed altogether too much discretion.(fn11) Indeed, prior to the adoption of the residual exception in 1985, the Colorado Supreme Court cited with approval a federal rules advisory committee's stated intent "that the residual hearsay exception in Rule 803(24) be used rarely, only in exceptional circumstances."(fn12) In fact, it has been noted that the Colorado Supreme Court's refusal to uphold the admissibility of evidence deemed to be sufficiently trustworthy but not falling under any specifically enumerated exceptions, in cases such as W.C.L. v. People,(fn13) led to the adoption of the residual exception in Colorado.(fn14)

DIMENSIONS OF ADMISSIBILITY: THE ELEMENTS

There are five express requirements for the admission of hearsay evidence under the residual exception. They are designed to meet the following objectives: (1) trustworthiness, (2) necessity, (3) materiality, (4) the general purposes of the Rules of Evidence and (5) notice. Of these, the first, or trustworthiness element, is by far the most critical substantively, while the notice requirement, the last element, has the most procedural significance.

1. The statement must possess "circumstantial guarantees of trustworthiness"...