News & Events

Revisions to the Residual Exception Contained in Federal Rule of Evidence 807 Seek to Provide Clarity and Uniformity

The residual exception in Federal Rule of Evidence 807 provides a vehicle for the admission of hearsay statements that are not otherwise admissible under Rule 803 or 804.  As the Fifth Circuit has observed, though, the residual exception has traditionally been “used only rarely, in truly exceptional cases.”  United States v. Reed, 908 F.3d 102, 120 (5th Cir. 2018), cert. denied, No. 18-1336, 2019 WL 1790553 (U.S. May 28, 2019), and cert. denied, No. 18-9001, 2019 WL 1883448 (U.S. May 28, 2019) (internal citation omitted).

Under the rule as written, the “‘lodestar’ of the exception is whether a hearsay statement has ‘equivalent circumstantial guarantees of trustworthiness’ relative to other hearsay exceptions.” Id.  (internal citation omitted).  But under the proposed rule, which would go into effect December 2019, courts are no longer required to find trustworthiness “equivalent” to the trustworthiness guaranteed by Rules 803 and 804.  Under the proposed rule, the court must find that “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.”  This amendment shifts the emphasis away from a comparison to the exceptions contained in Rules 803 and 804 to an emphasis on trustworthiness.  This is important because not all hearsay exceptions are premised on trustworthiness or reliability.  For example, as noted in the Advisory Committee Note to the proposed rule, Rule 804(b)(6), which permits hearsay to be admitted against a party who wrongfully caused the declarant’s unavailability, is not based on reliability at all.

Another change in the proposed rule is the requirement that the court consider corroborating evidence.   Though other courts have already permitted the consideration of corroborating evidence, the Fifth Circuit has consistently held that “[t]he determination of trustworthiness is drawn from the totality of the circumstances surrounding the making of the statement, but it cannot stem from other corroborating evidence.”  Reed, 908 F.3d at 120-21.  The proposed rule would provide uniformity to the analysis and permit consideration of corroborating evidence.

The proposed rule also eliminates the requirement that the statement be offered as proof of a “material fact” and the requirement that the admission of the statement serve the “interests of justice” and the “purposes of the rules.”

Additionally, there are changes to the notice provision under the rule.  For example, the proposed rule requires that the notice provide the substance of the statement to be offered and that the notice be provided in writing.  Additionally, the proposed rule eliminates the requirement that the notice include the declarant’s address. Finally, the proposed rule now provides a good cause exception to the notice requirement.

The goal of these revisions appears to be to provide clarity and uniformity to the residual exception’s use.  Time will tell if these revisions will have that result.