Prior to the effectivity of the 2019 Rules of Evidence, a proponent who offered a hearsay statement in evidence must show that it fits within any of the exceptions to the hearsay rule, failing in which the statement would be denied admission. Now, the 2019 Rules of Evidence provide for a backdoor by way of Section 50 of Rule 130. If the proponent can show that the statement, although not falling within any of the specific or categorical hearsay exceptions, is trustworthy and that there is a necessity for its admission, the court may admit it in evidence under the residual exception rule.
Under the said rule, a statement not covered by the regular hearsay exceptions but “having equivalent circumstantial guarantees of trustworthiness” is admissible if the court determines that 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.”
In the United States, the residual exception represented a compromise between those advocating the jettisoning of the hearsay rule and those pushing for its retention. The residual exception was eventually incorporated to the Federal Rules of Evidence (FRE) as Rule 807 (FRE 807). FRE 807 then became the model for Section 50, Rule 130 of the 2019 Rules of Evidence.[1]
The adoption in our jurisdiction of the residual exception is a laudable move by which the rigor of the hearsay rule is tempered by granting a trial judge leeway to admit trustworthy hearsay in cases of necessity.
The Sub-Committee tasked to draft the 2019 Rules of Evidence mulled over the idea of adding a number of new hearsay exceptions, likely to be taken from the FRE. In the end, the Sub-Committee chose to simply adopt the residual exception in FRE 807. Nevertheless, the hearsay exceptions in the FRE not provided for in our Rules of Evidence, such as the exception for present-sense impressions, may serve as a guide in evaluating the trustworthiness of a statement offered as a residual exception. Also, statements which do not fully meet the requirements of the specific hearsay exceptions may come in as residual exceptions pursuant to the “near miss” theory.
The requirements for a statement to be admitted as a residual exception are: (1) the statement must have “equivalent circumstantial guarantees of trustworthiness,” and (2) 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.” Furthermore, (3) the proponent must give notice to the adverse party of his intent to offer the statement to provide the adverse party with a fair opportunity to meet it.[2]
The proponent must satisfy the twin requirements of trustworthiness and necessity. This is to prevent the residual exception from becoming the exception that swallows the hearsay rule. The intention is “that the residual exception will be used very rarely, and only in exceptional circumstances.”[3] The residual exception was not designed to be a safety net to catch all statements which fell from the tightrope of the specific hearsay exceptions.
“Equivalent circumstantial guarantees of trustworthiness” means circumstantial guarantees of trustworthiness that are equivalent to those in the categorical or specific exceptions. In the 2019 amendment to FRE 807, the phrase “has equivalent circumstantial guarantees of trustworthiness” was replaced with “supported by sufficient guarantees of trustworthiness.” The “equivalence” standard is difficult to apply, given the different types of guarantees of reliability, of varying strength, found among the categorical exceptions. Experience has shown that some statements offered as residual hearsay cannot be compared usefully to any of the categorical exceptions and yet might well be trustworthy. Thus, the requirement of an equivalence analysis was eliminated.[4]
The proponent is required to give explicit notice in advance to the opponent that he intends to offer the statement. This is to give the adversary a fair opportunity to meet the offer of the statement. Because of the broad wording of the residual exception, an adverse party must be given more time to prepare to challenge or object to the offer of the statement. Under FRE 807, the notice should include the substance of the statement and the declarant’s name. Section 50 of Rule 130 also requires that the notice should give the declarant’s address.[5]
There is a view, based on the plain text of the provision, that Section 50 does not require notice of an intent to use the residual exception; all it requires is notice of an intent to offer the particular statement, not notice of an intent to use any particular hearsay exception. Another view is that the notice under Section 50 must be of the intent to use the statement as well as of the intent to rely on the residual exception rule as a ground for admitting the statement (Kirk v. Raymark Industries, Inc., 61 F.3d 147, 166-67 [3d Cir. 1995]). Considering that the purpose of the notice is to provide the adverse party with a fair opportunity to meet the offer of the statement, the latter view seems more logical and persuasive. A fair opportunity to meet the offer of the statement would be illusory if the opponent must speculate under what hearsay exception or exclusion the statement would come in.
Section 50 provides that the notice should be given sufficiently in advance of the hearing, or by the pre-trial stage in the case of a trial of the main case, to provide the adverse party with a fair opportunity to prepare to meet it. The pre-2019 version of FRE 807 required that the notice be given “before the trial.” The Rules Committee opted to require an earlier giving of notice “by the pre-trial stage” rather than “before the trial” to limit the use of the residual exception. However, FRE 807 as amended in 2019 allows the notice to be made before the trial or hearing, or even during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.
It is submitted that the provisions of Section 50, requiring the notice to be given by the pre-trial stage, should be interpreted as directory rather than mandatory. If the proponent has a good reason for not providing notice by the pre-trial stage, as where the statement became available only after the pre-trial or even during the trial itself, then a court may allow the statement to be admitted if it meets the other requirements of Section 50.[6] Experience under the residual exception has shown that a good-cause exception is necessary in certain limited situations. For example, the proponent may not become aware of the existence of the hearsay statement until after the trial begins, or the proponent may plan to call a witness who without warning becomes unavailable during trial, and the proponent might then need to resort to residual hearsay.[7]
When notice is provided during trial after a finding of good cause, the court may need to consider protective measures, such as a continuance, to assure that the opponent is not prejudiced.[8]
The residual exception drew inspiration from the “much admired” 1961 U.S. case of Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 [5th Cir. 1961]. The clock tower of the Dallas County courthouse had collapsed five days after a thunderstorm in 1957. Dallas County requested its insurer to cover the damage. Several witnesses testified that lightning struck the building during the storm. The county used the existence of charred timbers in the wreckage to corroborate the eyewitness accounts. The insurer, however, denied that lightning charred the timbers, contending instead that the damage occurred during a previous fire. The insurer offered, and the trial court admitted, an unsigned newspaper article dated 9 June 1901 which reported a blaze in the courthouse. The article did not come within an established exception to the hearsay rule. Was it proper for the trial court to admit the newspaper article?
The court held that it was proper to do so. It stated that the categorical exceptions may not embrace all trustworthy hearsay. The court admitted the report solely on grounds of necessity and trustworthiness. It recognized that the article was needed because the memory of any witness to the fire would not have been as reliable as the newspaper account. The court reasoned that the article was the only evidence available to prove the insurer’s claim and it came from an inherently reliable source. The court concluded that the article was trustworthy since it was inconceivable that a small-town reporter would fabricate the story.
In criminal cases, the residual exception may justify admission of third-party statements tending to exonerate the defendant where these could not satisfy the declaration-against-interest exception. In a case for murder and manslaughter, B sought to introduce a co-defendant C’s admission that he (C) and not B initiated the attack which led to the killings. At the time C made the admission, he was completely immunized from prosecution. While C was considered as unavailable because of his refusal to testify invoking the right against self-incrimination, his statement was not against interest because of his immunity. Nonetheless, admission of C’s statement was allowed under the residual exception rule.[9]
Survey and polls properly and scientifically undertaken, even if used to prove facts asserted in the statements, e.g. cross-shopping and product substitution in antitrust cases, are sufficiently reliable and may be admitted under the residual exception.[10]
The provision on residual exception has opened a new evidentiary frontier for exploration by members of the bench and the bar. As lawyers and judges become more conversant with this novel concept, we expect trial court cases involving the catch-all exception to eventually wend their way to the Supreme Court and form the vanguard of the controlling case law.
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[1] The Evidence Sub-Committee worked from the 2011 version of the FRE. After it had submitted its work to the Supreme Court, there was an amendment to FRE 807 on 1 December 2019 which made some salient changes. This explains why Section 50 of Rule 130 varies in some respects from the current version of FRE 807.
[2] The requirements that residual hearsay must be evidence of a material fact and that its admission will best serve the purposes of these rules and the interests of justice were deleted in the 2019 FRE. These requirements are redundant since they are already found in other rules (Advisory Committee Notes on FRE 807).
[3] Advisory Committee Notes on FRE 807.
[4] Advisory Committee Notes on 2019 amendment to FRE 807.
[5] The requirement that the declarant’s address must be disclosed was deleted in 2019. That requirement was nonsensical when the declarant was unavailable, and unnecessary in the many cases in which the declarant’s address was known or easily obtainable. If prior disclosure of the declarant’s address is critical and cannot be obtained by the opponent through other means, then the opponent can seek relief from the court (Advisory Committee Notes on FRE 807).
[6] Mueller, Kirkpatrick, and Richter, Evidence 1058 (6th ed.).
[7] Advisory Committee Notes on the 2019 version of FRE 807.
[8] Id.
[9] United States v. Slatten, 865 F.3d 767 (D.C. Cir 2017).
[10] Mueller, Kirkpatrick, & Richter, Evidence 1159 (6th ed.); citing Brunswick Corp. v. Spinit Reel Co., 832 F.2d 513, 522-523 (10th Cir. 1987).
