[fre 807 Not Adopted.]

• Library: The Illinois Rules of Evidence: A Color-Coded Guide (2019 Ed.)

FEDERAL RULES OF EVIDENCE

Rule 807. Residual Exception

(a) in General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:

(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.

(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, so that the party has a fair opportunity to meet it.

ILLINOIS RULES OF EVIDENCE

[FRE 807 not adopted.]

[Although it has not adopted this residual (some say "catch-all") exception to the hearsay rule, Illinois has adopted statutes that seek to accomplish the same goal. Those statutory provisions are discussed in the Author's Commentary below.]

COMMENTARY

Author's Commentary on Non-Adoption of Fed. R. Evid. 807; Illinois Statutory Residual Hearsay Exceptions; Application of Crawford's "Testimonial Hearsay" in Criminal Cases

The Illinois Supreme Court "has specifically declined to adopt this [predecessor to FRE 807's residual] exception" to the hearsay rule. People v. Olinger, 176 Ill. 2d 326, 359 (1997). Illinois, however, provides a number of statutory hearsay exceptions, which may be referred to as "residual exceptions," for certain available and unavailable witnesses in both criminal and civil cases. So, although Illinois has not codified FRE 807, it has created a number of reliability-based residual exceptions to the hearsay rule through statutory enactments.

Seventh Circuit's Handling of FRE 807

In United States v. Moore, 824 F.3d 620 (7th Cir. 2016), the Seventh Circuit noted that "[a] proponent of hearsay evidence must establish five elements in order to satisfy [Federal] Rule [of Evidence] 807: '(1) circumstantial guarantees of trustworthiness; (2) materiality; (3) probative value; (4) the interests of justice; and (5) notice.'" The court also noted that it had previously warned against the liberal and frequent utilization of FRE 807 "lest the residual exception become the exception that swallows the hearsay rule." In Moore, which involved a probation officer's notes concerning a deceased person and the probation records of the deceased person's phone numbers—phone numbers frequently called by the defendant, who claimed he was not close to the deceased person—the Seventh Circuit held that the exception was particularly apt. Moore also cites to other Seventh Circuit Court decisions that admitted hearsay statements under FRE 807.

Crawford v. Washington

A number of Illinois criminal statutes provide for the admissibility of hearsay statements where the out-of-court declarant is unavailable. The admissibility of some of these statements is open to question, however, because of the United States Supreme Court decision in Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court repudiated the "indicia of reliability" standard set forth in Ohio v. Roberts, 448 U.S. 56 (1980), which had held that hearsay statements were admissible where indicia of reliability were present if the evidence fell within a firmly rooted hearsay exception or bore particularized guarantees of trustworthiness. Crawford held that, rather than the indicia of reliability test, the Sixth Amendment confrontation clause prohibits admission of "testimonial" statements when the out-of-court declarant does not testify and the defendant did not have an opportunity to cross-examine the unavailable declarant in a prior proceeding.

Illinois Statutes that Allow Residual Hearsay Exceptions

Numerous Illinois statutes allow the admission of what would normally be hearsay statements but, depending on the statutory language, are referred to as either not hearsay or an exception to the hearsay rule. Most of the statutes are in the Code of Criminal Procedure of 1963. They include:

• Section 115-10 (725 ILCS 5/115-10; provided at Appendix U and addressed infra under the separate headings of People v. Cookson, People v. Kitch, and Other Decisions Applying Section 115-10), where a child under the age of 13 or a person who is mentally retarded is the victim of the types of physical or sexual acts enumerated in the statute;
• Section 115-10.2 (725 ILCS 5/115-10.2; provided at Appendix O), where a witness refuses to testify despite a court order to do so and the prior statements were made under oath and were subject to cross-examination by the opposing party in a prior trial, hearing, or other proceeding;
• Section 115-10.2a (725 ILCS 5/115-10.2a; provided at Appendix P), where a declarant is deemed to be unavailable to testify in a domestic violence prosecution—(For a relevant decision on this statute, see People v. Burnett, 2015 IL App (1st) 133610 (holding that the victim of the of the defendant's violation of an order of protection was unavailable as a witness under the statute because she refused to answer some questions, thus satisfying the statute's requirement for a hearsay exception, and further holding that the victim was available under Crawford because she answered both preliminary questions as well as questions about the offense, thus satisfying sixth amendment confrontation clause requirements);
• Section 115-10.3 (725 ILCS 5/115-10.3; provided at Appendix Q), where a declarant is an elder adult who is a victim of certain specified offenses and is unable to testify because of physical or mental disability;
• Section 115-10.4 (725 ILCS 5/115-10.4; provided at Appendix R), where the declarant is deceased and the prior statements were made under oath at a trial, hearing, or other proceeding and the declarant was subject to cross-examination by the opposing party.

Also, note that section 2-18(4)(c) of the Juvenile Court Act of 1987 (705 ILCS 405/2-18(4)(c)) allows hearsay statements in civil cases involving abused or neglected minors: "Previous statements made by the minor relating to any allegations of abuse or neglect shall be admissible in evidence. However, no such statement, if uncorroborated and not subject to cross-examination, shall be admissible in evidence." For a decision involving application of the statute and discussing other cases, see In re J.L., 2016 IL App (1st) 152479 (holding that, because abuse or neglect actions are civil in nature, they are not subject to the confrontation requirements of Crawford, and noting that the supreme court in In re A.P., 179 Ill. 2d 184, 196 (1997), has interpreted the statute to require either cross-examination or corroboration, but not both).

Significance of These Statutes

The statutes that provide hearsay exclusions or exceptions, otherwise not provided by the codified evidence rules, represent the legislature's valid exercise of its ability to create evidence rules. Such rules are subject to codification and amendment. See People v. Dabbs, 239 Ill. 2d 277, 293 (2010) (holding that the "propensity rule" is of common law origin and not of constitutional magnitude, and therefore subject to revision).

In civil cases, absent a substantive due process violation, there is no constitutional bar to creating exclusions or exceptions to the hearsay rule by statute, because the legislature can create and amend evidence rules and because the confrontation clause does not apply to civil cases. In criminal case, however, the confrontation clause does apply, and out-of-court statements deemed to be "testimonial" are barred under Crawford.

Thus, the significance of the statutes that provide exclusions or exceptions to the hearsay rule in criminal cases is that they provide a legitimate basis for the admission of out-of-court statements—without the bar resulting from a hearsay objection, including, when the out-of-court declarant testifies at the proceeding, an objection premised on the obvious basis that the prior statement is a prohibited prior consistent statement—as long as Crawford's prohibitions related to "testimonial statements" are satisfied.

In sum, in criminal cases, these statutes eliminate the hearsay obstacle, but they still require that the confrontation problem be satisfied.

Crawford and Its Progeny

If the statements in the criminal statutes listed above are deemed to be "testimonial statements" (a term not fully defined in Crawford, but one that certainly...