The Federal Residual Hearsay Exception - Articles

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Posted by: Donald Paine on Sep 24, 2009

Journal Issue Date: Oct 2009

Journal Name: October 2009 - Vol. 45, No. 10

The birthplace of this evidentiary nonsense was Selma in Dallas County, Ala. On Sunday, July 7, 1957, the clock tower of the courthouse fell into the courtroom. A newspaper article published in 1901 reported a courthouse fire during construction. In Dallas County v. Commercial Union Assurance Company Ltd., 286 F.2d 388 (1961), the Fifth Circuit held the article admissible hearsay even though it fit no hearsay exception of that era. (Probably the article would fit the present federal ancient documents exception.)

Today the feds have Evidence Rule 807:

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 be best 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 meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

The drafter of this language needs to return to school to learn about punctuation and not starting a sentence with "However." But you and I must deal with rules as written. Here are the three essential criteria for admissibility.

First, the residual statement must be equally trustworthy with the 803 and 804 exceptions. Often that will not be true, and you need to hold the judge's feet to the fire on this criterion.

Second, the residual statement must be more probative than alternative proof. Press your adversary lawyer about "reasonable efforts" to procure alternative evidence.

Third, you may have a slam dunk because of failure of pretrial notice. Sometimes the residual exception is a fall-back tactic when a traditional exception is rejected. Never let a federal judge ignore this absolute criterion.

We do not have a residual exception in the Tennessee Rules of Evidence. But we have had courthouse fires, and lots of them. See John W. Carpenter and Michael Emrick, Tennessee Courthouses (1996), and review your county's history. Four Tennessee counties lost three courthouses each to fires: Giles (Pulaski), Macon (Lafayette), Polk (Benton and Ducktown), and Trousdale (Hartsville).

Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law.