Section 16.45 Residual Exceptions

• Library: Evidence 2017

VIII. (§16.45) Residual Exceptions

There are occasions when an out-of-court statement does not fall within any recognized common-law or statutory exception, but the circumstances surrounding it may, nevertheless, suggest that it is trustworthy. May it be admitted into evidence anyway? The federal courts and most state courts recognize the so-called “residual exception,” which allows such evidence when:

· there are “circumstantial guarantees of trustworthiness”;

· the statement is material to an important issue;

· the statement is more probative than anything reasonably available to the proponent; and

· the admission of the statement would serve the interests of justice.

See Fed. R. Evid. 807. Notice of using a residual exception to the hearsay rule must be given to the opposing party.

The appellate courts have authorized the admission of hearsay evidence that does not come within any common-law or statutory exception by applying what is essentially the federal rule. This type of evidence has been admitted when the courts found it to be reliable and when there was no other reasonably available source of evidence to prove the facts asserted in the hearsay statement. To date, the exception has been limited primarily to two areas, child hearsay statements in civil cases and surveys, but with the Supreme Court’s decision in State v. Bell, 950 S.W.2d 482 (Mo. banc 1997)—a murder case—it is apparent that the residual exception does not need to be limited to those two areas, and it may be expanded to include the same types of evidence admitted under Federal Rule of Evidence 807.

A common use of the residual exception is the admission of child hearsay statements in custody proceedings. Given that the statements would be admissible in criminal or child protection cases under § 491.075, RSMo 2016 (the child hearsay exception, subject, of course, to the limitations of the Confrontation Clause), it is not surprising that the courts admit similar statements in other cases when they find the same circumstantial guarantees of trustworthiness. Although the civil courts do not need to follow the statutory procedure of holding a pretrial hearing, if it makes the same kinds of determinations required by § 491.075, using the same factors, the evidence will likely be admitted under the residual exception.

The leading case for admission of child hearsay in a civil case is In re Marriage of P.K.A., 725 S.W.2d 78 (Mo. App. S.D. 1987). The case arose as a contempt proceeding when the mother refused to allow the child’s father to exercise his visitation rights. The mother testified that she refused because the child told her of certain acts of abuse and inappropriate touching that the father engaged in with the child. The child was later examined by a psychiatrist and made similar statements. The court examined possible traditional hearsay exceptions, such as the “state of mind” exception, and found them inapplicable.

Motivated primarily by the necessity of being able to consider the child’s statements for the truth and the overriding necessity of acting in the child’s best interests, the court emphasized that:

· it is rare that such abuse would occur in the presence of persons competent to testify;

· “flexibility” is needed in cases in which the best interests of the child is the guiding standard; and

· the evidence—if the circumstances support its reliability—should be available to prevent child abuse.

The court concluded that the child hearsay statements could be admissible “only where abuse may have occurred, or has been threatened, and the child might not be competent or reasonably expected to testify to it.” In re P.K.A., 725 S.W.2d at 81. The court found that the use of this evidence in a nonjury case was supported by the trial judge’s experience and training, such that the judge could “properly consider” the evidence. Id. Of course, the judge would be considering the credibility of the witness who recounted the hearsay, not the truthfulness of the child’s statement. One limit that the courts will apply to child hearsay...