Proposed Amendment to FRE 807, Residual Exception to Hearsay Rule

Proposed Amendment to FRE 807, Residual Exception to Hearsay Rule.

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In August 2017, the Judicial Conference Committee on Rules of Practice and Procedure began accepting comments on a proposed amendment to Federal Rule of Evidence 807,[1] the residual exception to the hearsay rule.[2] Although the rule allows for judicial flexibility, it has also been criticized for granting courts too much discretion.[3] In particular, the requirements for trustworthiness “equivalent” to other specific hearsay exceptions and the “particulars” for notice have led to inconsistent application of the rule and unnecessary disputes.

The Proposed Amendment

The amendment, consisting of four parts, seeks to promote uniform application of FRE 807 while limiting expansion of the rule and providing more certainty as to the notice requirements.

First, to limit the expansion of the rule’s applicability through case law, the proposed rule expressly requires the proponent to establish that the proffered statement is not covered by a specific hearsay exception under FRE 803 or 804.

Second, the proposed rule requires the court to find that the proffered statement is supported by “sufficient” guarantees of trustworthiness under the totality of the circumstances and any corroborating evidence rather than “equivalent circumstantial” guarantees of trustworthiness. According to the Committee, the “equivalent” standard was vague, leaving courts with a basis for comparison ranging from the least to most trustworthy of the specific hearsay exceptions.

Third, the Committee eliminated the requirement that admitting the evidence must best serve the “purposes of the rules and the interests of justice,” which it found unhelpful.

Fourth, the proposed rule modifies the notice requirements by specifying that reasonable written notice, which may be provided in electronic form, must include the substance of the statement and the declarant’s name. The proposed rule eliminates the existing requirement for “particulars” such as the addresses of declarants, who are often unavailable. This amendment is intended to avoid unnecessary disputes over whether sufficient notice has been given.

The proposed amendment expressly allows courts to admit evidence without prior notice for “good cause” shown. Under the existing rule, some courts have admitted evidence without prior notice for good cause—such as the last-minute discovery of evidence or unavailability of a witness—while others have disallowed the evidence altogether.

Texas eliminated the residual exception in both the Civil Rules and Criminal Rules after concluding that it would lead to the admission of unreliable evidence.[4] The unified Texas Rules of Evidence do not include the residual exception.[5]

The Committee is accepting comments for the proposed amendment to FRE 807 until February 15, 2018.[6]

For the annotated Federal Rules of Evidence, see O’Connor’s Federal Rules * Civil Trials, and for extensive commentary on the Texas Rules of Evidence—including comparisons between the Texas Rules and the federal Rules—see the Texas Rules of Evidence Handbook.

[1] U.S. Courts, Preliminary Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal Procedure, the Federal Rules of Evidence, the Rules Governing Section 2254 Cases in the United States District Courts, and the Rules Governing Section 2255 Proceedings for the United States District Courts (2017), pp. 67-78.

[2] U.S. Courts, Proposed Amendments Published for Public Comment; Fed. R. Evid. 807.

[3] See Daniel J. Capra, Expanding (or Just Fixing) the Residual Exception to the Hearsay Rule, 85 Fordham L.Rev. 1577, 1580 (2017) (supporting expansion of FRE 807 to increase judicial flexibility, reducing pressure on courts to distort existing rules, and allowing the admissibility of reliable hearsay); Victor Gold, The Three Commandments of Amending the Federal Rules of Evidence, 85 Fordham L. Rev. 1615, 1623-24 (2017) (opposing expansion of FRE 807, which could lower trustworthiness of evidence, undermine the “near miss doctrine,” and favor government and businesses to the detriment of individual litigants); see also Jeremy W. Richter, Proposed Changes to Federal Rule of Evidence 807 (Aug. 14, 2017) (summarizing proposed changes).

[4] See Jeff Brown & Reece Rondon, Texas Rules of Evidence Handbook 776-77 (2017).

[5] Id.

[6] Proposed Amendments to the Federal Rules of Evidence,

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