Attorney Advertising Material
What. Significant amendments to Fed. R. Evid. 807, the “residual exception” to the hearsay rule, took effect on December 1, 2019
Why It Matters. The residual exception can be used to introduce powerful evidence that otherwise may not be admissible. See, e.g., United States v. Moore, 824 F.3d 620 (7th Cir. 2016) (in prosecution for illegally selling firearm, hearsay evidence of phone number used by alleged purchaser, the call records for which allegedly showed extensive contact with defendant at time government contended firearm was sold and otherwise, was admissible under Rule 807). Taken together, the amendments increase the discretion of courts, at least somewhat, to admit hearsay under the residual exception.
Background. In 1997, Rules 803(24) and 804(b)(5), the residual exceptions in Rules 803 and 804, were “combined and transferred to a new Rule 807” “to facilitate additions to Rules 803 and 804” and with “[n]o change in meaning … intended.” Fed. R. Evid. 807, 1997 Advisory Committee Notes. The purpose of the current amendments is “to fix … problems … courts have encountered in applying” Rule 807. Id, 2019 Advisory Committee Notes.
Pre-Amendment Text. Prior to the December 1, 2019 amendments, Rule 807 provided:
(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.
Fed. R. Evid. 807 (December 1, 2011).
December 1, 2019 Amendments. The amendments change Rule 807 as follows:
a. “Equivalent Circumstantial Guarantees Of Trustworthiness” Test Stricken. “Courts have had difficulty with the requirement that the proffered hearsay carry ‘equivalent’ circumstantial guarantees of trustworthiness,” which was “difficult to apply” “given the different types of guarantees of reliability, of varying strength, found among the categorical exceptions (as well as the fact that some hearsay exceptions … are not based on reliability at all).” Fed. R. Evid. 807, 2019 Advisory Committee Notes; see also, Excerpt from September 2018 Report of the Judicial Conference Committee on Rules of Practice and Procedure, p. 1, ¶ 1 (observing that “[t]he requirement that the court find trustworthiness ‘equivalent’ to the circumstantial guarantees in the Rule 803 and 804 exceptions is exceedingly difficult to apply … because there is no unitary standard of trustworthiness in the Rule 803 and 804 exceptions.”). Also, “experience has shown that some statements offered as residual hearsay cannot be compared usefully to any of the categorical exceptions and yet might be trustworthy.” Fed. R. Evid. 807, 2019 Advisory Committee Notes.
b. New Test: “Sufficient Guarantees Of Trustworthiness,” “After Considering The Totality Of Circumstances Under Which” The Statement “Was Made” And Any Evidence “Corroborating The Statement.” Instead of “an equivalence analysis,” “[u]nder the amendment … the court should proceed directly to a determination of whether the hearsay is supported by guarantees of trustworthiness,” “considering the totality of circumstances under which … [the statement] … was made and evidence, if any, corroborating the statement.” Id; Rule 807(a)(1) (December 1, 2019). “[T]he focus for trustworthiness is on circumstantial guarantees surrounding the making of the statement itself, as well as any independent evidence corroborating the statement.” Rule 807, 2019 Advisory Committee Notes. The “existence or absence of corroboration is relevant to, but not dispositive of, whether a statement should be admissible” and “the court must consider not only the existence of corroborating evidence but also the strength and quality of that evidence.” Id. “[T]he court should not consider the credibility of any witness who relates the … statement in court,” which “would usurp the jury’s role of determining the credibility of testifying witnesses.” Id. “The credibility of the witness relating the statement is not a part of … [the] … enquiry” into “circumstantial guarantees surrounding the making of the statement itself” or the “enquiry” into the existence and/or nature of “any independent evidence corroborating the statement.” Id. Finally, if the statement is “offered against a defendant in a criminal case,” “the independent requirements of the Confrontation Clause must be satisfied” “even if the court finds sufficient guarantees of trustworthiness.” Id.
c. “Not Specifically Covered By” A Rule 803, 804 Exception Replaced By “Not Admissible” Under Such An Exception; “Near-Miss” Statements May Be Admitted. As enacted in 1997, Rule 807 provided in relevant part that “[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 …” Fed. R. Evid. 807 (December 1, 1997). This language, and similar language in former Rules 803(24) and 804(b)(5), gave rise to the view, adopted by some courts, that hearsay that is “a near miss” for admission under a Rule 803 or 804 exception cannot be admitted under Rule 807 because such hearsay is “specifically covered by” a Rule 803 or 804 exception, albeit not admissible thereunder, and thus does not fall within Rule 807. See, e.g., United States v. Laster, 258 F.3d 525, 534 (6th Cir. 2001)(Moore, J. dissenting)(describing the “plain-language interpretation of the residual exception … sometimes described by its detractors as the ‘near-miss theory’ of the residual exception: the doctrine that a ‘near miss’ under a specified exception renders evidence inadmissible under the residual exception.”)(citation, brackets, ellipsis and quotation marks omitted). Because the 2019 amendments replace “not specifically covered by a[n] … exception in Rule 803 or 804” with “not admissible under a[n] … exception in Rule 803 or 804,” see Rule 807(a) (December 1, 2019), the “near-miss” argument can no longer be made. Thus, this change “clarifies that a court assessing guarantees of trustworthiness may consider whether the statement is a ‘near-miss’ of one of the Rule 803 or 804 exceptions.” Rule 807, 2019 Advisory Committee Notes. “If the court employs a ‘near-miss’ analysis it should – in addition to evaluating all relevant guarantees of trustworthiness – take into account the reasons that the hearsay misses the admissibility requirements of the standard exception.” Id. Also, while “[a] court is not required to make a finding that no other hearsay exception is applicable,” the proponent “cannot seek admission under Rule 807 if it is apparent that the hearsay could be admitted under another exception.” Id. “The amendment does not alter the case law prohibiting parties from proceeding directly to the residual exception, without considering the admissibility of the hearsay under Rules 803 and 804.” Id.
d. Requirements That Statement Be “Evidence Of A Material Fact” And “Best Serve” “Purposes Of” Rules And “Interests Of Justice” Stricken Because “Already Found In Other Rules.” “The requirements that residual hearsay must be evidence of a material fact and that its admission will best serve the purposes of … [the] … rules and the interests of justice” were “deleted” because “[t]hese requirements have proved to be superfluous in that they are already found in other rules … Rules 102, 401.” Id.
e. Requirement That Statement Be “More Probative … Than Any Other Evidence That The Proponent Can Obtain Through Reasonable Efforts” Retained. “This necessity requirement will continue to serve to prevent the residual exception from being used as a device to erode the categorical exceptions.” Id.
f. Changes To Notice Provision. The amendments make the following changes to the notice provision:
i. Must disclose “substance” of statement, which “require[s] a description that is sufficiently specific under the circumstances to allow the opponent a fair opportunity to meet the evidence.” Id. The previous requirement that notice be provided of the statement’s “particulars” has been deleted. Rule 807(b) (December 1, 2019).
ii. Declarant’s address requirement dropped because it “was nonsensical when the declarant was unavailable, and unnecessary in the many cases in which the declarant’s address was known or easily obtainable.” Rule 807, 2019 Advisory Committee Notes. “If … the declarant’s address is critical and cannot be obtained … through other means, then the opponent can seek relief from the court.” Id.
iii. “Good cause” exception to pre-trial/hearing notice requirement added because “[e]xperience … has shown that a good cause exception is necessary in certain limited situations,” such as where the proponent does not “become aware … of the hearsay statement until after the trial begins … or … plan[s] to call a witness who without warning becomes unavailable during trial …” Id.
iv. Pretrial notice must be writing, which “provides certainty,” “reduces arguments about whether notice was actually provided” and “is satisfied by notice in electronic form.” Id. Notice may be provided “in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.” Rule 807(b) (December 1, 2019).
The Bottom Line: The Amendments Increase The Discretion Of Courts To Admit Residual Hearsay. It is certainly true that the Report of the Judicial Conference Committee states that the Committee “determined that it would not seek to expand the breadth of” Rule 807 but instead would remedy “a number of problems in the application of” Rule 807, Excerpt from September 2018 Report of the Judicial Conference Committee on Rules of Practice and Procedure, p. 1, and that the Advisory Committee Notes state that Rule 807 was “amended to fix a number of problems that the courts have encountered in applying it.” Rule 807, 2019 Advisory Committee Notes. But taken together, the amendments – which require “sufficient” rather than “equivalent” “guarantees of trustworthiness,” reject the “near-miss” theory of the residual exception and allow notice of intent to offer residual hearsay to be given during a trial or hearing upon a showing of good cause – expand the discretion of courts, at least somewhat, to admit hearsay under Rule 807.
Amended Text. As of December 1, 2019, Rule 807 provides:
(a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804:
(1) the statement is supported by sufficient guarantees of trustworthiness —after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and
(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.
(b) Notice. The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement—including its substance and the declarant’s name—so that the party has a fair opportunity to meet it. The notice must be provided in writing before the trial or hearing—or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.
Fed. R. Evid. 807 (December 1, 2019).
More Information. More information, including copies of the 2019 Advisory Committee Notes and the Excerpt from the September 2018 Report of the Judicial Conference Committee on Rules of Practice and Procedure, both cited herein, is available at the website for the U.S. Courts (www.uscourts.gov).
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