Intro to the Federal Rules of Evidence - 73

F. RESIDUAL EXCEPTION (FRE 807)

1. Intro
The FRE provide a general catch-all exception for hearsay statements not covered by specific exceptions.

2. Requirements
a. Circumstantial guarantees of trustworthiness
In determining whether the statement has “equivalent circumstantial guarantees of trustworthiness”, the court is likely to consider these factors: (1) under oath; (2) how much time lapsed; (3) declarant’s motive for telling truth; (4) first-hand knowledge; (5) written v. oral statement; (6) subsequently recanted statement.

b. Evidence of material fact
The statement must be offered as evidence of a material fact.

c. More probative
The statement must be more probative on the point for which it is offered than any other evidence which is available through reasonable efforts.

d. Interests of justice
Use of the evidence must be consistent with the general purposes of the FRE and the interests of justice.

e. Notice to adversary
The proponent must give notice in advance of trial to the adverse party as to the nature of the statement (including the name and address of the declarant) so that the adversary has an opportunity to prepare to meet it.

Intro to the Federal Rules of Evidence - 72

6. Forfeiture by Wrongdoing (FRE 804(b)(6))
a. Purpose
To remove the incentive of witness-tampering: D’s attempt to intimidate, bribe, or even murder the witness.

b. No reliability requirement
This exception does not require that the out-of-court declaration be reliable in order to be admitted. This makes the exception much easier to use than the residual exception of FRE 807 which requires circumstantial guarantees of trustworthiness.

c. Common scenarios
The out-of-court statements to which FRE 804(b)(6) is often applied include: (1) statements made by W while under police interrogation; (2) statements made by W in a grand jury proceedings or preliminary hearing; (3) statements made by W in W’s own criminal trial, or in a criminal trial of some third person.

Intro to the Federal Rules of Evidence - 71

5. Statement of Personal or Family History (FRE 804(b)(4))
a. Rationale
Hearsay statements concerning family history are often necessary to prove the facts of people’s everyday lives. For example, most people rely on the hearsay statements for the knowledge of where they were born, who their relatives are, etc.

b. Requirements
i) Person or relative
The now unavailable declarant must be a member of the family in question or otherwise so intimately associated with the family that they are likely to have accurate information concerning the matters declared (e.g., a family doctor).

ii) Personal knowledge
The declarant’s statements may be based either on her own personal knowledge of the facts involved or on her knowledge of family reputation.

c. Other ways to prove pedigree
Personal and family history may be proven by use of other exceptions to the hearsay rule. For example, it may be proven by: vital statistics (FRE 803(9); records of religious organizations (FRE 803(11)); marriage certificates and other certificates (FRE 803(12)); family records (FRE 803(13)); statements in property documents (FRE 803(15)); reputation (803 (19)); and judgments (FRE 803 (23)). For these exceptions, the declarant’s availability is immaterial.