The Residual Exception to the Hearsay Rule: the Complete Treatment

• Publication year: 2022

33 Creighton L. Rev. 265. THE RESIDUAL EXCEPTION TO THE HEARSAY RULE: THE COMPLETE TREATMENT

Creighton Law Review

Vol. 33

G. MICHAEL FENNER(fn*)

I. INTRODUCTION

The hearsay rule excludes from evidence a kind of information that we all use all of the time in our every day lives: second-hand information.(fn1) The rule expresses a judicial preference for first-hand knowledge. We want on the witness stand a person who has first-hand knowledge of the item in question.(fn2)

There are many ways around the hearsay rule. There are, for example, ways in which it can be argued that all out-of-court statements are nonhearsay.(fn3) In Rule 803 of the Federal Rules of Evidence, there are twenty-three categorical exceptions to the hearsay rule.(fn4) There are five categorical exceptions in Rule 804.(fn5) Expert witnesses can be used to get around the hearsay rule.(fn6) Rule 32 of the Federal Rules of Civil Procedure is a huge door through which hearsay can be loaded into the courtroom.(fn7)

Even with all of the categorical exceptions, rules of procedure, uses of expert witnesses, and the like that get hearsay into evidence, still there are cases where the rule excludes evidence that is relevant, reliable, and - if truth is to be determined and justice to be done - required.(fn8) In cases where the hearsay rule excludes second-hand evi-dence that is relevant, reliable, and required, pressure inevitably builds against the edges of the rule. Pressure builds to find a way to get the statement out from under the rule and into evidence. The residual exception is hearsay rule's safety valve: It allows the pressure to be released and keeps the hearsay rule from exploding.

The residual exception is an expression of the need for flexibility in the rules. The pre-rules common law allowed for flexibility: Judges created the rules; when they needed another one, they created another one. This kind of flexibility is a hallmark of the common law. Those who drafted the Federal Rules of Evidence believed that the statute needed its own flexibility. The drafters of the rules recognized that not even a group as distinguished as itself could anticipate every situation. "It would . . . be presumptuous to assume that all possible desirable exceptions to the hearsay rule have been catalogued and to pass the hearsay rule to oncoming generations as a closed system."(fn9)

Presumptuous, and potentially disastrous. When evidence is reliable, relevant, and needed for the effective presentation of a party's case, pressure builds to admit it into evidence. Without a safety valve, then sooner or later, more or less frequently, but unavoidably, the pressure would build until it impaired the rule. The pressure would build until it escaped at the rules' weakest points. The pressure of justice against the rigidity of the specific rules would result in the rules giving way. The lack of a residual exception would lead to tortured constructions of both the hearsay definition and the specific exceptions.(fn10)

The evidence is coming in anyway and admitting it through a residual exception is a more honest way of doing it more honest than doing it through a tortured construction of the underlying rule itself or one of the categorical exceptions. The more honest way of doing it, in itself, serves the interests of truth and justice.

This article is about the residual exception; the one hearsay exception that keeps the whole rule from exploding. Part II begins with the rule itself, quoted and then reduced to its essential elements. Part III continues with a discussion of the scope of the rule and the putative problem of "near miss" evidence. The question here is whether the residual exception is available for evidence that barely misses fitting under one of the specific exceptions found elsewhere in the rules. First, there is a general discussion of near-miss evidence.(fn11) This is followed with a discussion of one of the most common situations in which the near-miss question arises, that is, the introduction of grand jury testimony against a defendant in a criminal prosecution, who, of course, did not have an opportunity to cross-examine (or even be in the room with) the grand-jury witness.(fn12)

Part IV addresses the question of notice. This section begins with a discussion of the fact that the rule requires notice of an intention to use the evidence in question (but not necessarily of an intention to use this exception).(fn13) It moves to a discussion of the fact that text of the rule requires that the notice be pretrial or prehearing, but many cases allow notice after the trial or hearing has started.(fn14) The article then discusses just how formal the notice must be(fn15) and what it must include.(fn16) The discussion of the question of notice concludes with a warning to counsel: You run a great risk if you do not take this notice requirement seriously.(fn17)

The residual exception requires that the evidence be somewhat trustworthy, and this is the subject of Part V of the article. This section of the article discusses just how trustworthy the evidence must be.(fn18) It discusses the fact that the trustworthiness requirement focuses on the out-of-court statement and its declarant, and not on the testifying witness,(fn19) and that the focus is on the circumstances that existed at the time the statement was made, and not on what we know in hindsight.(fn20) This section discusses what specific evidence counsel might produce to support or counter a trustworthiness argument.(fn21)

This section concludes with a discussion of how it is that an out-of-court declarant can have been incompetent at the time the out-of-court statement was made and the out-of-court statement can nonetheless be sufficiently trustworthy to qualify for admission under this exception a competent statement produced by an incompetent declarant.(fn22)

Part VI discusses the rule's "probative value" requirement. First, there is a general discussion of the requirement.(fn23) Second, there is a discussion of the problem of the turncoat witness. Can this exception be used to introduce an out-of-court statement by a declarant who takes the stand and denies a fact stated in the out-of-court statement? Can it be said that an out-of-court statement is more probative than an in-court statement that is under oath and subject to cross-examination? Most courts say no. This article argues that the correct answer is yes, this exception can be used to introduce a prior statement by a turncoat witness.(fn24)

Part VII discusses the use of this exception to make the hearsay rule come out the way we want it to come out in cases involving the current social agenda. That is followed, in Part VIII, by a discussion of the closely related issue of the use of this exception in cases involving child abuse. Finally, Part IX discusses miscellaneous uses of the residual exception.

II. TEXT OF RULE 807 AND ITS FOUNDATIONAL ELEMENTS

A. TEXT

The place to begin is with the text of the rule:A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, 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, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

B. FIVE FOUNDATIONAL ELEMENTS

According to the text of the rule, use of the catchall exception requires five findings on the part of the trial court.

1. Trustworthiness

While an 807 statement does not fit under Rule 803 or 804, the court must find it as trustworthy as the statements that are covered by Rule 803 and 804. (How to determine which evidence is sufficiently trustworthy is discussed below.(fn25))

2. Relevance

The rule requires "that the statement be offered as evidence of a material fact, which we take to be a requirement of relevance."(fn26)

3. Relative Probative Value

The court must find that the evidence in question has more probative value on the point to which it is offered than does any other evidence (presumably, any other admissible evidence) the proponent can procure through reasonable efforts.

4. Justice

The exception applies only when the court determines that admission of the evidence will serve "the general purposes of these rules and the interests of justice."(fn27)

5. Notice

The proponent of the evidence must give advance notice of his or her intention to introduce the particular out-of-court statement into evidence.(fn28) The notice must be sufficiently in advance of the trial or hearing to prevent surprise and to allow the adverse party an opportunity to prepare a counter argument.

C. THOSE FIVE FOUNDATIONAL ELEMENTS CAN BE REDUCED TO THREE

Finding number 2 - relevance - is always required...