NCJ Number
117355
Date Published
1989
Length
14 pages
Annotation
This article reviews the substance and use of Rules 803(24) and 804(b)(5) of the Federal Rules of Evidence, which pertain to the 'residual' exceptions to the hearsay rule.
Abstract
These catchall exceptions pertain to statements 'not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness ...' To qualify as a residual exception, the court must determine that the statement is offered as evidence of a material fact, 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 the general purpose of the rules and the interests of justice will best be served by admission of the statement into evidence. A condition for admitting the statement as evidence is that 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. Currently, the courts are not treating these residual rules as something special that requires careful analysis and articulated findings. This article examines one area where the residual exceptions have been misused, i.e., the admission as substantive evidence grand jury testimony of the class of co-conspirators loosely known as 'cooperating individuals.' Other topics addressed are the strict notice requirement accompanying the use of the residual exceptions, courts' determination of which hearsay evidence comes under Rules 803(24) and 804(b)(5), and the strictness with which the courts are adhering to the requirements for residual exceptions.