January 23, 2020

Amendment to Residual Exception to Broaden Scope of Admissible Hearsay Evidence

Holland & Knight Alert
Mary Goodrich Nix | Morgan J. Kleoppel

Highlights

  • A recent and significant amendment to Federal Rule of Evidence 807, known as the residual exception, took effect on Dec. 1, 2019.
  • Rule 807 has historically allowed an argument for the admissibility into evidence of hearsay statements that do not meet the hearsay exceptions contained in Rules 803 or 804, as long as the statement meets certain guarantees of reliability. This exception has traditionally and intentionally been very difficult to meet.
  • The amendment, which includes four noteworthy changes that will undoubtedly broaden this hearsay exception and allow more hearsay statements into evidence than previously available, has the potential to substantially change the course of a trial.

The Federal Rules of Evidence usually deem all hearsay – out-of-court statements offered to prove the truth of the matter asserted – inadmissible unless the statement falls into one of the hearsay exceptions contained in Federal Rules of Evidence 803 or 804. Federal Rule of Evidence 807, known as the residual exception, has historically allowed an argument for the admissibility into evidence of hearsay statements that do not meet another exception as long as the statement meets certain guarantees of reliability. This exception has traditionally and intentionally been very difficult to meet. The old rule read as follows:

(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:

(1) the statement has equivalent circumstantial guarantees of trustworthiness;

(2) it is offered as evidence of a material fact;

(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

(4) admitting it will best serve the purpose of these rules and the interests of justice.

(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, so that the party has a fair opportunity to meet it.

However, a recent amendment to Rule 807 took effect on Dec. 1, 2019. The amendment is intended to broaden this hearsay exception and allow more hearsay statements into evidence than previously available. The amendment has the potential to substantially change the course of a trial. The new rule reads as follows:

(a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804:

(1) the statement is supported by sufficient guarantees of trustworthiness – after considering the totality of the circumstances under which it was made and evidence, if any, corroborating the statement; and

(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.

(b) Notice. The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement – including its substance and the declarant's name – so that the party has a fair opportunity to meet it. The notice must be provided in writing before the trial or hearing – or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.

Key Changes in New Rule

The amended rule includes four significant changes:

  1. Old Rule 807 allowed hearsay evidence under the exception only if it was offered to prove a "material fact." This requirement has been removed from the rule.
  2. The hearsay statement no longer has to be surrounded by "equivalent guarantees of trustworthiness." Per the new Rule 807, the statement must simply be supported by sufficient guarantees of trustworthiness when considering the totality of the circumstances and corroborating evidence of the statement. This is specifically meant to be an easier standard for the courts to apply.
  3. Old Rule 807 included a requirement that the hearsay evidence being admitted will serve the purpose of the Rules of Evidence and the interests of justice. This language has been removed.
  4. The new Rule 807 requires that a party provide notice in writing to other parties of an intention to admit a statement under the residual exception. The notice must describe the substance of the statement.

The amended rule still requires that any evidence offered as hearsay must be more probative on the point for which it is offered than any other evidence the proponent can provide or obtain through reasonable efforts.

Considerations and Takeaways

To challenge whether a hearsay statement is admissible, a party must seek a 104(a) hearing and ask the judge to decide the admissibility of the evidence. Note that the Rules of Evidence do not apply in a 104(a) hearing, and that all circumstances and corroborating evidence, whether admissible in trial or not, can be presented to and considered by the judge when evaluating the trustworthiness of the hearsay statement to be admitted. In addition to the four changes enumerated above, all courts must now consider corroborating evidence when performing their trustworthiness analysis. Some circuits have been evaluating corroborating evidence even before the rule change while others, such as the U.S. Court of Appeals for the Fifth Circuit, previously held that circumstantial evidence could not be considered.

Although the advisory committee notes about these amendments state that the changes are not meant to broaden the scope of admissible evidence under the rule, the new language will undoubtedly serve to broaden the scope of admissible hearsay evidence. For example, although a statement about a collateral or circumstantial matter previously may have been inadmissible because it was not information about a "material fact," the new Rule 807 language will allow any relevant hearsay evidence to be admissible if it is determined to be trustworthy under the circumstances and to be the most probative evidence reasonably available to the proponent.

Thus, objections to the admissibility of testimony about what one employee "understands" to be a fact about another employee have typically been sustained. What someone "understands" to be fact is typically based not on first-hand information but on second-, third- or even fourth-hand information (i.e., rumors and gossip). Under the new rule, what a witness "understands" to be fact may now have a legitimate chance of being allowed into evidence.

How far the courts will take the new language is difficult to predict at this time, but there is the potential for considerably more hearsay to be admissible in federal courts going forward. Historically, Rule 807 has been used only in exceptional cases. This could change under the new version. Litigators should therefore be aware of the possibility that much more hearsay may be admissible and should plan accordingly.  


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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