The Residual Exception To the Hearsay Rule

This Birdsong article was originally published in the Nova Law Review, Volume 26, Number 1.

It teaches Evidence law students about the residual exception to the Federal Rules of Evidence.

Read and learn.

 EXCEPTION TO THE HEARSAY RULE – HAS IT BEEN ABUSED – A SURVEY SINCE THE 1997 AMENDMENT

                                                          By: Leonard Birdsong

                                                                        © 2001

               I. INTRODUCTION

         In our legal system of trial by jury a good deal of the law of evidence is given to exploring hearsay and its exceptions. The factors upon which the value of testimony depends are the perception, memory, narration and sincerity of the witness.¹ In order to encourage witnesses to put forth their best efforts and to expose inaccuracies that might be present with respect to any of these factors our trial system has developed what is known as the testimonial ideal.  That is, witnesses are required to testify under oath, testify in person, and be subject to cross examination.  The rule against hearsay is designed to insure compliance with these ideals.  When one of them is absent a hearsay objection becomes pertinent.² Hearsay evidence is often characterized as unreliable and untrustworthy.  Nevertheless courts constantly admit hearsay evidence under the numerous exceptions found in the common law and in latter day statutes. Hearsay evidence exhibits a wide range of reliability. The effort to adjust the rules of admissibility of hearsay evidence to variations in reliability has been a major motivating factor in the movement to liberalize evidence law.³

            The Federal Rules of Evidence, adopted in 1975,⁴ for use in the federal courts and adopted by many states have helped liberalize the introduction of trustworthy hearsay evidence at trials.⁵  The Federal Rules of Evidence recognize twenty eight standard exceptions to the hearsay rule⁶.  In addition to those exceptions and the “nonhearsay” exceptions⁷, the Congress in promulgating the Federal Rules, adopted rules 803(24) and 804(b)(5), as residual hearsay exceptions.  Such rules allowed introduction of such hearsay statements not specifically covered by any of the named exceptions but having circumstantial guarantees of trustworthiness if the court determined that certain stated conditions were met.⁸

            It was intended that the residual exceptions would be used sparingly by the courts and only in rare and exceptional circumstances.⁹  The Advisory Committee cautioned that the residual exceptions “do not contemplate an unfettered exercise of judicial discretion, but they do provide for treating new and presently unanticipated situations which demonstrate trustworthiness within the spirit of the specifically stated exceptions”¹⁰

            Of all of the exceptions to the hearsay rule, the residual exceptions have probably generated the greatest amount of controversy.¹¹  One evidence scholar, James Beaver, who has examined the use of the residual exceptions fears that the residual exceptions will swallow the hearsay rule.¹²   Another scholar, Thomas Black, believes that  the residual exceptions may be used in such a manner in the federal courts as to abuse traditional concepts of evidence.¹³ As this article will demonstrate such fears are totally unfound.

              In 1997, the residual exceptions of Rules 803(24) and 804(b)(5), were amended and cast in to one new rule, Federal Rule of Evidence 807.¹⁴  The amended rule provides:

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) 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 (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.  However, a statement may not be admitted under this exception unless 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, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.¹⁵

 

 

 

            In amending the residual exception the Advisory Committee noted that “the contents of Rule 803(24) and Rule 804(b)(5) have been combined and transferred to the new Rule 807.  This was done to facilitate additions to Rules 803 and 804.  No change in meaning is intended.”¹⁶

            Prior to the 1997, amendment the aforementioned scholar, James Beaver, surveyed the use of the residual exceptions and found that between 1975 and 1993, the residual exceptions and their state equivalents were reported in more than 140 federal cases and in more than ninety state cases¹⁷.  He concludes that such figures suggest that the residual exceptions were being used more than in rare and exceptional circumstances.¹⁸  He, also, maintained that the residual exceptions weaken the hearsay rule and cautioned states to refuse to adopt the residuals on the ground that they were undesirable and unnecessary.¹⁹ Another scholar, John Strong, the general editor of McCormick On Evidence  believes resort to the exception has been substantial and is surprised by its prominent use by prosecutors in federal courts.²⁰

            A review of recent cases reveals that the admission of residual hearsay pursuant to the exception is being used sparingly and only after a good deal of analysis by both the federal courts and by the courts of states which allow the exception.²¹  In Beaver’s survey he found that the residual exception was reported in 140 federal cases and ninety state cases.  He believes that this was abuse of the rule and that we better be careful.  However, such analysis, relying solely on the number of reported cases, is flawed.  Everything is relative.  The use of the residual exception as reported in 140 cases over a twenty three year period does not seem astounding given there are thirteen federal Circuit Courts of appeals in the country.  Nor does it seem astounding that the residual exception was reported in ninety state cases during the same period.  We have fifty state court systems many with a two tier appellate court system consisting of a court of appeal and a higher state supreme court.

            If Beaver had analyzed exactly how the residual exception was used in each case he would have found no abuse.   The purpose of this article is to survey and analyze the pertinent reported federal and state decisions addressing admission of residual hearsay since the 1997 amendment to the residual exception. Such survey and analysis reveals that there is little likelihood that the hearsay rule will be swallowed by the residual exception.  A secondary purpose of this article is to provide civil trial lawyers, defense attorneys, prosecutors and judges examples of how the circumstantial guarantees of trustworthiness of the residual exception have been argued and analyzed in federal and state courts in recent years.

           

II. HEARSAY, THE FEDERAL RULES OF EVIDENCE, AND THE STATES

            In order to understand the residual exception one must appreciate the definition of hearsay under the Federal Rules.  The rules first define a statement as “an oral or written assertion or nonverbal conduct of person if it is intended by the person as a statement.”²² Thus, hearsay, under the rules, is “a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”²³The definition is an affirmative one which says that an out of court assertion offered to prove the truth of the matter asserted is hearsay.²⁴ Exceptions to the hearsay rule usually are justified on the ground that evidence meeting the requirements of the exception possesses special reliability and often special need, such as the unavailability of the declarant²⁵. That is, there is an objective guaranty of trustworthiness to such statements.²⁶

            The often cited examples of exceptions that exhibit such guarantees of trustworthiness are the excited utterance,²⁷ statements for purposes of medical diagnosis,²⁸ records of regularly conducted activity, ²⁹statements in ancient documents,³⁰ the dying declaration,³¹ and, of course, statements against interest.³²

            Forty one states, Puerto Rico, and the military have adopted the Federal Rules of Evidence.³³  The majority of these states adopted rules of evidence based on the final Federal Rules of Evidence.³⁴  As the Federal Rules of Evidence are amended some states also promptly amend their corresponding rules to maintain similarity with the federal rules.³⁵ The following states have not adopted rules of evidence based on the Federal Rules: California, Connecticut, the District of Columbia, Georgia, Illinois, Kansas, Massachusetts, Missouri, New York, Virginia and the Virgin Islands.³⁶

            The forty one states, Puerto Rico, and the military that have adopted the Federal Rules have all adopted rules similar to the hearsay rule of 801.³⁷  However, not all of these states have adopted the residual exceptions.³⁸  Of the states which have adopted such residual exceptions, Colorado appears to be the only state to have already amended their rules to combine the 803(24) and 804(b)(5) into one Rule 807 as have the Federal Rules of Evidence. ³⁹ The states which have not adopted a residual exception are Alabama, Florida, Kentucky, Maine, New Jersey, Ohio, South Carolina, Tennessee, Texas, Vermont, and Washington.⁴⁰ The state of Louisiana limits its residual exception to civil cases⁴¹.  The states of Nevada⁴² and Wisconsin omit the notice requirement of the Federal Rule.⁴³

            Although Florida has not adopted a residual exception akin to Rule 807, it has two sections of its evidence code⁴⁴ which speak to the kinds of circumstances where residual hearsay exceptions often are applied. These may be thought of as “quasi residual” exceptions. Section 90.803(23) allows the use of out of court statements of a child 11 years old or less describing child abuse, neglect , or sexual abuse against the child,⁴⁵ after the court holds a hearing to determine reliability of such statements.⁴⁶ The statute is applicable whether the child is available or unavailable to testify.⁴⁷ If the child is unavailable to testify and the statements are deemed to be reliable by the court there must be other corroborating evidence of the offense before such statement may be used.⁴⁸ There is also a ten day notice requirement that must be given to a defendant in a criminal case.⁴⁹ Finally, the court, under this statute must make specific findings of fact on the record as to the basis for its ruling to admit or exclude the statements⁵⁰. Section 90.803(24) of Florida’s law is identical, except that it applies to elderly or disabled adults.⁵¹

            Florida promulgated such hearsay exceptions for children in 1985.⁵²  The Florida exception was expanded to the elderly in 1995.⁵³ However, it was not until after 1990 that a number of other states were confronted with the need for such exceptions.  This was as a result of the Supreme Court’s ruling in Idaho v. Wright.⁵⁴  In Wright, a child sexual abuse case, the Court was required to decide whether the admission at trial of certain hearsay statements admitted under Idaho’s residual exception violated the defendant’s rights under the Confrontation Clause of the Sixth Amendment.  The hearsay statements were made by a child declarant to an examining pediatrician.  At trial the child was unavailable as a witness.  The pediatrician testified as to the child’s statements concerning the abuse.  The Supreme Court affirmed the Idaho Supreme Court which ruled that the defendant’s right to confrontation had been denied by admission of the testimony.⁵⁵ The Court held that the State of Idaho could not use other evidence corroborating the truth of such a hearsay statement to support a finding that the statement bore particularized guarantees of trustworthiness.⁵⁶  In other words, to be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.⁵⁷  The Court in Wright declined to endorse a mechanical test for determining “particularized guarantees of trustworthiness;”⁵⁸ however, the Court alluded to a number of factors that might make the hearsay statements made by a child in an abuse case reliable, including spontaneity and consistent repetition, lack of motive to fabricate, mental state of the declarant, and use of terminology unexpected of a child of similar age.⁵⁹

 

            III.  AN ANALYTICAL FRAMEWORK  FOR  EXAMINING

                 THE RESIDUAL EXCEPTION

A. APPROPRIATE INDICIA OF RELIABILITY

            All  hearsay exceptions must exhibit an element of trustworthiness which derives from certain  appropriate indicia of reliability.  One often cited example of such trustworthy hearsay exception is the dying declaration.⁶⁰  It has long been considered reliable that a man would not go to his death with a lie on his lips.  Obviously,  fear of retribution in the afterlife provides the appropriate indicia of reliability to make the dying declaration trustworthy.  So how do we find the appropriate indicia in the residual hearsay exception? 

            Rule 807 provides that a statement not specifically covered by 803 or 804, but having “equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule….”  In applying the residual exception then, the most important issue is whether such statement does offer “equivalent circumstantial guarantees of trustworthiness” to those found in other specific hearsay exceptions.⁶¹  The factors supporting trustworthiness are varied but a few recurring factors may be pertinent to the determination of admissibility.  Among them would be: whether the declarant had a motivation to speak truthfully;⁶² the spontaneity of the statement;⁶³ the time lapse between the event and the statement;⁶⁴ whether the declarant was under oath;⁶⁵ whether declarant had been cross examined;⁶⁶ whether the declarant has recanted or reaffirmed the statement;⁶⁷ and whether the declarant’s first hand knowledge is clearly demonstrated.⁶⁸  A court may, also, consider whether such out of court statement was corroborated by the declarant who was available and testified at trial of the case.⁶⁹ Further, a court might look to circumstances surrounding the extrajudicial statement to determine trustworthiness.⁷⁰  In an effort to determine whether circumstantial guarantees of trustworthiness exist a court may look to matters that occur at trial; said court may look to extrinsic corroboration of the statement; a court may look to surrounding circumstances concerning the statement; or the court may look to all of these to determine trustworthiness.⁷¹

            Beaver is troubled by this approach.  He complains that with respect to the residual exception “a court need not be consistent in its standards.  The standard used can very easily be changed to meet the necessities of current political expediency or judicial whim. We have a container into which anything can be poured,”⁷² he contends.

            Such  criticism of the standards for allowing statements pursuant to the residual exception is flaccid. The appropriate position with respect to the question of standards is that espoused by Fenner who maintains that without some residual exception, a statutory set of rules of evidence simply would not work.⁷³ The pressure to admit hearsay evidence that does not fall under the fixed, specific exceptions would lead to one of two things: the evidence would not be admitted and injustice would be done, or one of the other exceptions would be misread to say that it does cover the evidence in question,⁷⁴ We should always remember that the Federal Rules are to be construed to secure fairness in administration and help to the development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.⁷⁵

            The standards for determining the circumstantial guarantees of trustworthiness  of residual statements must vary. In the cases reviewed herein decided since the 1997 amendment to Rule 807 we will find courts that admit residual hearsay because there is little likelihood of fabrication or inaccuracies with respect to the statements to admitted;⁷⁶ we will find a court that admits such out of court statements on the ground that they were business records produced by a defendant against his interest in litigation and thus trustworthy; ⁷⁷

            In the criminal area we will find courts that undertake extensive analysis to determine whether the residual hearsay statements were sufficiently detailed that they would have been difficult to fabricate, whether there was a lack of evidence of coercion, whether the declarants had personal knowledge of the events, a determination of how soon the statements were made after the event.⁷⁸ Other courts will look to whether the statements sought to be admitted pursuant to the residual exception were made under oath and subject to the penalty of perjury, whether such statements had been made voluntarily, and whether they contradicted previous statements by the declarants.⁷⁹ We will also see a court in criminal case which will examine whether the declarant was offered leniency in exchange for his statement, will examine whether the declarant attempted to shift blame from himself to the accused, will examine whether the declarant took full responsibility for his role in the offense, examine whether the declarant was caught “red-handed” and merely tried to share his blame by implicating another, and determine whether the declarant was given his Miranda rights.⁸⁰

            As Beaver notes, the courts need not be consistent in its use of standards.⁸¹ What is most important with respect to any residual exception analysis is the determination that such evidence, which might meet the standard of circumstantial guarantees of trustworthiness, is  evidence  offered as evidence of a material fact; that the evidence is the most probative evidence available on the point for which it is offered, that the interests of justice will be served by admitting the evidence, and whether there was notice of the evidence.⁸²

            One must bear this analytical framework in mind as we survey the recent cases in an effort to determine whether the residual hearsay rule is being abused.

 

            B.  NOTICE

            The notice requirement of Rule 807 is very important. What does notice mean? When and how must notice be given? The residual exception is not available unless offering counsel gives opposing counsel advance notice of his or her intention to offer the out of court statement, and the particulars of the statement, including the name and address of the of the out of court declarant.⁸³

            Rule 807 does not require pretrial notice of an intention to use Rule 807.  All it requires is notice of an intention to offer the particular statements; not notice of an intention to use any particular hearsay exception.⁸⁴ Once counsel has notified opposing counsel of an intention to offer the statement in question, then it can be offered under Rule 807.⁸⁵ The notice may be formal or less formal. Fenner reminds us the pretrial notice may be a document filed with court styled “Notice of Intention to Use Rule 807 Evidence,” or it may be a letter sent to opposing counsel stating an intention to introduce particular statements, including the names and addresses of the proposed declarants.⁸⁶

            The timing of the notice has been problematic.  Both Fenner and Beaver note that prior to the 1997, amendment some courts interpreted the notice requirement more in accord with the spirit of the law than with the letter of the law.  This often creates inconsistency in application of the notice requirement.⁸⁷  The rule provides that notice must be “sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the evidence.”⁸⁸ Fenner claims that some courts stress the “fair opportunity” part of the notice requirement over the “in advance of the trial or hearing” part.  He notes that one influential court has said that in cases where the need to use this exception does not become apparent until after the trial has begun, midtrial notice given enough in advance of the actual use of the evidence can satisfy the rule’s pretrial notice requirement.⁸⁹

            The cases surveyed herein reveal that variations of the flexible approach to notice requirement predominate.  Although this does not appear consistent with the plain meaning of the rule, we shall see that the interests of justice require such flexibility.  Even less formal notice is better than no notice.

            With this analytical framework in mind with respect to appropriate indicia of reliability and notice let us survey the recent cases relying on the residual exception to determine whether the rule is being abused.

 

IV. RULE 807 CASES IN THE FEDERAL COURTS

A. CIVIL CASES

            Since the 1997 amendment to the Federal Rules the residual exception was cited as an issue in seven civil cases in the federal courts. The cases come from the Second and Eleventh Circuit Courts of Appeal, federal district courts in the Eastern District of New York, and the district court for Puerto Rico. It will be clear from a review of these civil cases that judges are not abusing their authority with respect admitting unreliable hearsay pursuant to the residual exception.

            The Eleventh Circuit Court of Appeals gave short shrift to a plaintiff’s argument that the residual exception of Rule 807 should be admissible to allow hearsay of a dead witness to help substantiate her claim of copyright infringement. In  Herzog v. Castle Rock Entertainment⁹⁰ the plaintiff, Herzog, brought a copyright action against  the writer, director, producer, and distributor of the motion picture “Lone Star.” Plaintiff alleged that defendants infringed her copyright for a screenplay she had written entitled “Concealed.”⁹¹ The District Court granted defendant’s motion for summary judgment and Herzog appealed.  The Eleventh Circuit, relying on the district court’s opinion upheld the grant of summary judgment on the grounds that Herzog had failed to establish that Sayles, the writer director of Lone Star had had a reasonable opportunity to view her screen play and; the motion picture and screenplay were not substantially similar.⁹²

            Herzog’s burden was to show that her screenplay was a copyrighted work and that Sayles had copied it.  Herzog submitted a certificate of copyright for her screenplay to the court. The second requirement, proof of copying, she attempted to prove circumstantially by demonstrating that the person who copied the work had access to her copyrighted screenplay.⁹³

             Herzog averred that she had written the screenplay as a requirement for her Master Degree in film studies at the University of Miami.  She had given her screenplay to Cosford, one of her professors for review.  He had never returned it to her.⁹⁴  After “Lone Star” was released she learned that Sayles was an acquaintance of Cosford and that Sayles and Cosford had met for lunch in Miami during the time Cosford had her screenplay.⁹⁵  Herzog theorized that Cosford had shown Sayles her work.  By the time of the law suit Cosford had died and was, thus, unavailable to testify as to whether he had shown Sayles the screenplay.⁹⁶

            Herzog sought to introduce, under Rule 807, hearsay statements of Allegro, another Professor at the University of Miami.⁹⁷  Allegro testified at deposition that Cosford told him that he was reading Herzog’s screenplay and he found it interesting.⁹⁸ Allegro, further, testified that during this same time period Sayles was in Miami and Cosford came out of his office at the university and announced to Allegro that he was on his way to his home to pick up Sayles to take him to lunch.⁹⁹  Allegro, also, testified that he only inferred from Cosford’s statements that he was picking up Sayles at his home and that he had never actually saw Sayles and Cosford together.¹⁰⁰

            Courts cannot properly consider hearsay evidence in ruling on motions for summary judgement.¹⁰¹  Defendants argued that the proffered testimony of Allegro would be inadmissible hearsay. ¹⁰²  There were no equivalent guarantees of trustworthiness found in those conversations. The Eleventh Circuit Court agreed on the ground that Rule 807 requires the equivalent circumstantial guarantees of trustworthiness covered by exceptions in Rule 803 and Rule 804. The Court undertook the requisite analysis for circumstantial guarantees of trustworthiness and found that the conversations had taken place five years earlier and Allegro was vague and not precise or knowledgeable in his memory of the conversations.¹⁰³  This was hearsay of the worst kind.  The court found that even it such hearsay was admissible to show that Cosford had a copy of Herzog’s screenplay and that Sayles had stayed at Cosford’s home in 1993, said evidence did not establish that (1)Cosford had a copy of the screenplay with him when he met Sayles for lunch and that he allowed Sayles to see it and (2) that Sayles was not truthful when he averred he  had never heard of Herzog’s composition.¹⁰⁴  Also, there was no allegation that Cosford previously contributed creative ideas or material to Sayles.¹⁰⁵

            The hearsay was not admitted despite proper pretrial notice be given under the residual exception. No appropriate indicia of reliability could be found on the facts of the case. The Eleventh Circuit did not abuse its powers by allowing the admission of unreliable hearsay pursuant to the residual exception in Herzog.

            In Schering v. Pfizer¹⁰⁶ the Second Circuit found that although certain surveys offered by plaintiffs in a false advertising case called for statements concerning memory, this did not automatically preclude their admission under the residual exception of Rule 807.¹⁰⁷ The plaintiff, Schering, was a pharmaceutical company that produces Claritin, a prescription antihistamine.  UCB, a European pharmaceutical company, developed a competing product called Zyrtec.  UCB licensed Pfizer, a Delaware corporation to promote Zyrtec in the United States.¹⁰⁸ In 1996 Schering brought action against UCB and Pfizer alleging false advertising with respect to Zyrtec in violation of Lanham Act and a prior settlement agreement between the parties.¹⁰⁹

             At a 1998, hearing on a preliminary injunction plaintiff Schering sought to introduce five surveys concerning the marketing and sale of Zyrtec to doctors. Pfizer responded to the motion on grounds that the surveys were inadmissible as hearsay.¹¹⁰ The district court agreed and issued a written opinion disallowing the surveys for any purpose.  The trial court, also, denied the injunction.¹¹¹ Schering appealed.  The Second Circuit found that the surveys should have been allowed, vacated the judgment, and remanded the case for further hearing concerning the surveys concerning memory statements.¹¹²

            Five surveys Schering had sought to introduce called for more information than the 803(3)¹¹³ exception to the hearsay rule would allow.  The court found that those surveys went beyond the state of mind of those surveyed and called for memory or belief to prove the facts remembered or believed¹¹⁴. However, Pfizer had also sought to introduce the surveys under the residual hearsay exception.  The court examined the surveys and Rule 807 and found that the lower court had abused its discretion by not allowing admission of the surveys pursuant to the residual exception.  The Second Circuit held that the trial court had been in error to rule against the use of out-of-court memory statements to prove facts remembered.¹¹⁵

             The Court reminded us that “unlike Rule 803(3), which explicitly excludes from its purview memory statements offered to establish the facts remembered, the residual hearsay rule contains no such limitation.  There is a reason for this difference.  Almost any statement used to describe events that a speaker has experienced in the past can be characterized as a ‘memory,’ which is a presently-existing state of mind when it is conveyed. If such statements were admissible under Rule 803(3) to prove the fact remembered, parties could thus offer hearsay to establish almost any past fact, a result that would indeed mark the ‘the virtual destruction of the hearsay rule’…The residual hearsay rule, by contrast, escapes this problem by setting forth its own set of requirements, which included necessity and trustworthiness before it will allow for a statement’s admission.”¹¹⁶ The court held that memory surveys, in principle, may have greater circumstantial guarantees of trustworthiness than many other traditional exceptions to the hearsay rule, but that it was the methodological validity of the survey that had to be examined before a guaranty of trustworthiness could be assured.¹¹⁷

            In Schering the court found that there was long standing notice of the intent to introduce the surveys.  The Court, further, found that the surveys were trustworthy and necessary and concluded that “In the context of survey evidence, the interests of justice and the general purposes of the rules of evidence are generally best served by the admission of the surveys that meet these two criteria.¹¹⁸  A review of the case shows that the residual exception is not being abused in the Second Circuit, but instead, the exception is being put to a strong analytical process as to its application.

            In Rotolo v. Digital,¹¹⁹ the Second Circuit overturned a trial court judgment on the ground that the notice requirement of 807¹²⁰ had not been met. In the case plaintiff Rotolo brought a products liability case against Digital, alleging that she suffered repetitive stress injuries resulting from the use of their computer keyboard.¹²¹ Plaintiff presented evidence of her injuries and presented evidence from medical witnesses to bolster her claim.¹²² Rotolo’s attorneys also came into possession of a videotape made by Apple Computer Corporation.  The tape which was received in evidence contained the voice and images of three Apple consultants who asserted and emphasized  the existence of a possible causal connection between computer keyboard use and repetitive stress injury. Digital objected to the introduction of the videotape as hearsay.¹²³

            The Second Circuit agreed that the videotape contained inadmissible hearsay and vacated judgment and remanded the case.¹²⁴ The Court found that the consultants that appeared in the videotape, two identified as physicians and one as an engineer were unsworn witnesses, whose qualifications were not expounded upon or subjected to cross-examination.   Rotolo’s counsel had informed the trial court that he was not offering the videotape because it was publicly available but offered it “as appropriate and compelling state of the art proof as to what could be known.”¹²⁵ The Court held it was error to admit the report. Before a defendant who has never seen an unpublished report that is not part of the published literature can be said to have non-hearsay notice, it must be shown that the defendant “was at least inferentially put on notice by the report.”¹²⁶  Digital presented proof that it had no such notice of the report or that they should have seen it as a part of the published literature on the industry.¹²⁷

            The court held a rule 807 residual exception inapplicable to the videotape evidence because the advance notice of intent to use that section was not used.¹²⁸  The Court further found that the district court…”misadvised the jury that it might consider the videotape evidence of ‘what might have been made available to these defendants [sic] and what was in the field to show what their state of mind was or should have been….Simply put, the Apple videotape was inadmissible hearsay”.¹²⁹ No notice no residual exception.  No abuse there.

            Rotolo v. Digital was decided on July 24, 1998.  A month earlier the same company, Digital, had not fared as well in a similar case heard in the  District Court of the Eastern District of New York.  On June 8, 1998, plaintiffs prevailed in the case of Gonzalez v. Digital.¹³⁰  Much of that case concerned the Rule 807 residual exception.  Although notice was also at issue,  the court in Gonzalez reached a result opposite that of the court in Rotolo.

            In Gonzalez a number of plaintiffs had sued Digital claiming that their upper body, arm, or hand problems had been caused by repeated use of Digital’s computer keyboards and that they had not been properly warned by Digital of the possibility of such injury.¹³¹ Plaintiffs sought to introduce documents and two videotapes, one produced by IBM and the other produced by Apple Computer which addressed the comfort disorders of keyboard users.  Digital moved to exclude such evidence, alleging among other reasons, that it was hearsay.¹³²  The district court found that the proffered evidence was relevant to the proceedings on the theory that evidence of the current state of mind of large producers in this industry was relevant.¹³³  It allowed the inference that given the then state of the art, members of the industry as a whole had, or should have had, the same “state of mind” with respect to possible users that needed to be considered by each of the manufactures even though they were operating separately.¹³⁴  Since Digital had a duty to keep abreast of scientific knowledge, discoveries and advances it was presumed to know what was imparted thereby.¹³⁵ Thus the documents and videos were deemed relevant.

            The court ruled that with respect to the hearsay objection to the evidence that such documents would be admitted pursuant to the residual exception.¹³⁶  The Court specifically found that the notice requirement of 807 had been met for Digital had notice for an extended time – a whole year and one half prior to trial –  that the evidence had been proposed.¹³⁷  The court also found that the proffered evidence offered evidence of a material fact and the internal materials were highly probative.¹³⁸  The court further found that the general interests of justice and the standards of trustworthiness had been met in the case.  The court maintained that the fear of fabrication or of inaccuracies inherent in much hearsay was unfounded because these videos had been created for legitimate business reasons and were less likely to have been fabricated than would testimony of a live witness.¹³⁹  The court also found that with respect to inaccuracies, the videos were more likely to be more accurate than a live witnesses because they were created internally and with great care.¹⁴⁰  The court did not find the inability to cross-examine with respect of the videotapes compelling because Digital could call its own experts or those who created the videotapes to refute contentions of notice.¹⁴¹

            The court allowed admission of the documents and videotapes under the residual rule to show the state of mind of other producers in the industry on the issue of notice.¹⁴² Though notice was informal in this case, the court found that a proposal made by plaintiffs to use the evidence a year and a half prior to trial met the notice requirement.  This stands in stark contrast to Rotolo where there was no advance notice of the intent to use the evidence. Again, in Gonzalez, the district court followed a well reasoned analytical framework to determine whether the evidence bore adequate circumstantial guarantees of trustworthiness and that there was proper notice.  Such analytical approach to admitting evidence pursuant to the residual  exception should put to rest fears by Beaver and others  that the residual exception will swallow the hearsay rule.

 

            In Vasquez v. National Car Rental,¹⁴³ the district court in Puerto Rico held that a statement by a driver in an auto accident was not admissible under the Rule 807 residual exception.  Mr. and Mrs. Lopez had rented a car from defendant at Puerto Rico’s international airport on December 26, 1997. Shortly thereafter they were in an auto accident with another vehicle driven by Gonzalez.  Mr. Lopez, the driver of the rented vehicle died several days later as a result of his injuries.  Mrs. Lopez, the passenger was, also, injured and subsequently died.  Suit was brought pursuant to a diversity action by Mrs. Lopez’s daughters, the Vazquezs.¹⁴⁴  Plaintiffs sued National because under Puerto Rio Law the owner of a leased vehicle is accountable for its lessee’s negligence.¹⁴⁵

            National sought admission into evidence of certain portions of Ms. Vazquez’s deposition testimony in which she described Mr. Lopez’s utterances right after the accident.  According to plaintiff, Vasquez, her mother  told her that immediately after the accident Mr. Lopez uttered to her the words “What hit us?”¹⁴⁶  National offered this evidence because it cast doubt as to who hit whom. National argued that because Mr. Lopez did not explicitedly say that he ran a red light or was negligent in his driving there was uncertainty as to whether he was negligent.¹⁴⁷ Under Puerto Rico Law defendant’s liability hinged on the driver’s (i.e. lessees’ liability).¹⁴⁸  If National could prove that Mr. Lopez was not driving negligently defendant would not be liable. National acknowledged that such statement would be hearsay but sought to have it admitted under the residual hearsay rule.¹⁴⁹

            The court reviewed Rule 807 and the facts and found that there was adequate notice of intent to use the statements.  Yet, the court did not allow the hearsay evidence on the grounds that the evidence fell below the threshold of trustworthiness required by the Rule.  The court found that even though in the hospital, the circumstances that surrounded Mr. Lopez’s remarks did not assure the Court that he was under a condition that would still his capacity of reflection or that he was under any pressure to tell the truth.¹⁵⁰  The Court found further that defendant had failed to prove that Mr. Lopez had reliable knowledge of the events that transpired on the night of the accident.  Ms. Vazquez in her deposition testified that Mr. Lopez was not clear as to the events that transpired, and that he really did not recall what happened.¹⁵¹  The Court disallowed the evidence and said it could not rely on an individual’s account of an event if that individual acknowledged that he did not recall the specifics of the event,¹⁵² as had Mr. Lopez.

            Mr. Lopez’s lack of recall would not support a finding for the court that would guarantee a finding  of trustworthiness to his statements.  In accord with our analytical framework the court found  no support to substantiate appropriate indicia of reliability for his statements. To keep such evidence out was the correct decision.  Here the hearsay rule prevailed. Critics have little to fear about the use of the residual exception when a court explains it’s analysis of the circumstantial guarantees of trustworthiness as in Vasquez. The hearsay rule prevails despite the residual exception.

            In the case of Chase Manhattan Bank v. Traffic Stream (BVI) Infrastructure Limited,¹⁵³ the court allowed admission, pursuant to the residual exception, into evidence of a news article that had appeared in a Chinese newspaper. In 1998 Chase Bank, acting as a trustee and Traffic Stream had entered into an indenture agreement in which Traffic Stream issued secured notes to finance a business venture involving the construction of toll roads in China.¹⁵⁴  In 1999, plaintiff Chase commenced litigation contending that Traffic Stream had defaulted on payment. Chase sought summary Judgment.  Defendant Traffic admitted default but argued that its default should be excused pursuant to the contract doctrine of impossibility of performance¹⁵⁵.  Traffic Stream contended that a change in Chinese policy delayed recoupment of money from the toll road projects, making it impossible for them to fulfill their obligation under the indenture.¹⁵⁶

            The facts of the case reveal that in the wake of the 1997 Asian financial crisis, the Chinese government had taken steps to strengthen its supervision of disbursement of foreign exchange involving Chinese companies doing business with foreign partners.¹⁵⁷ On September 13, 1998, the Chinese State Administration of Foreign Exchange gave notice of its change in policy.  The notice was a confidential document of the Chinese government that had not been publicly released.¹⁵⁸  However, news of the notice appeared in the People’s Daily, the official newspaper of the government on September 18, 1998.¹⁵⁹  Traffic Stream maintained that it was this change in foreign exchange supervision that made it impossible for them to perform.

            Chase objected to the introduction of the newspaper article on grounds that it was hearsay.¹⁶⁰  The court agreed that the Chinese newspaper article was hearsay but found the article admissible pursuant to the residual exception of Rule 807. The court found that Traffic Stream had given chase adequate notice of its intention to introduce the article.¹⁶¹  Perhaps, more importantly, the court found the newspaper article had been offered as evidence of a material fact, namely a change in Chinese policy which could have rendered Traffic Stream’ s performance under the indenture impossible.¹⁶²  The court, also, found that the article was the most probative evidence of the notice of change of policy that Traffic Stream could reasonably procure, because the notice itself had not been publicly released by the Chinese government.¹⁶³  Similarly, the court found because the notice itself was unavailable, the interests of justice would be served by the admission of the newspaper article.¹⁶⁴  The court further found with respect to Rule 807 the People’s Daily newspaper article had a sufficient guarantee of trustworthiness in that was published by the Chinese Communist Party Central Commission and was deemed to be authoritative and representative of the official opinion of the Chinese government.¹⁶⁵

            Although the article was admitted as evidence, Chase was ultimately granted summary judgment on the claim.¹⁶⁶  Nevertheless, the court gave a well reasoned analysis as to why the evidence should be found admissible pursuant to the residual exception. There had been adequate notice of the intent to use the newspaper article. And. There was a thoroughgoing analysis of the circumstantial guarantees of trustworthiness that surrounded the introduction of the article.  There was no abuse to the  traditional hearsay rule in this case.

            In John Paul Mitchell Systems  v. Quality King,¹⁶⁷ the residual exception was used to allow introduction of certain business records at a hearing on an injunction.  In this case John Paul Mitchell sought a preliminary injunction restraining the distributor Quality King from selling over a million dollars of Paul Mitchell hair care products.¹⁶⁸  Allegedly these products had traveled to China for distribution, but were diverted to Holland and then back to Quality King’s Long Island, New York warehouse.  John Paul Mitchell sought an injunction against Quality King in order to prevent irreparable damage to its exclusive salon only distribution policy.¹⁶⁹ In order to prove its case John Paul Mitchell sought introduction of business records of the company which it arranged to sell its products in China.  This was the firm, China Marketing & Distribution (CDM), a company John Paul found was defrauding it by diverting products from the Chinese market where it would be sold only in salons to other wholesalers who intended sale to direct retailers.¹⁷⁰  Quality King objected to introduction of the CDM business records on the ground that they were not authenticated.¹⁷¹

            The court found, pursuant to Rule 901(b)(1),¹⁷² that the document authentication requirement in this case was satisfied by the document’s form and content, taken together with other circumstances that indicated reliability of the documents.¹⁷³ Thus authenticated, the court found the documents admissible pursuant to  the residual exception because the records were particularly trustworthy.  In its analysis the court found that the trustworthiness of the documents was established by the facts that they were produced by the president of CDM against his interests in the litigation.¹⁷⁴ The court also found that the issue of whether the Paul Mitchell product was sold and shipped to Quality King was material to the litigation, and the documents were probative of the fact that CDM believed the product was shipped from its warehouse in China to Rotterdam.¹⁷⁵ The court further found that the documents were the most probative evidence available of the route the goods followed.¹⁷⁶  The court sound further still that Quality King had sufficient notice of the documents, as demonstrated by Quality King’s motion in limine to exclude them.¹⁷⁷  In the final analysis, the court found that it was in the best interests of justice to admit the documents.¹⁷⁸

            Although the documents were admitted pursuant to the residual exception John Paul Mitchell’s motion for preliminary injunction was denied.  The court found that it did not have the power to issue an injunction on a replevin claim.¹⁷⁹  Again, there appeared to be no abuse by the court of the residual exception in this case. 

            The foregoing has been a survey of the federal civil cases found since the 1997 amendment of Rule 807.  It does not appear from a review of these cases that there should be fear that the use of the residual exception is being abused.    In Herzog and Vasquez the courts did not allow statements pursuant to the exception because they could find no circumstantial guarantees of trustworthiness to the statements in question.  In Rotolo the statements were disallowed by the appeals court because adequate notice of the intended use of the evidence had not been given prior to trial by the plaintiffs. In Schering, Gonzalez, Chase Bank and John Paul Mitchell both the notice requirements and the requirement of circumstantial guarantees of trustworthiness were found to be adequate.  However, admission of such hearsay pursuant to the residual exception seldom determined the ultimate outcome of the case.

             Let us now turn to the federal criminal cases involving the residual exception since the 1997 amendment.  We will see that the analytical framework is just as important as in the civil cases, if not more so.

 

B. CRIMINAL CASES

            Since the 1997 Amendment the residual exception has been reported in federal criminal cases in numbers that are small. No more than eight such cases have been found.  This is approximately equal to the number of civil cases in which the exception was either mentioned or reported in federal civil cases during the same time period.  Although anecdotal, this provides further evidence that the residual exception is not being abused by the federal courts as a way of allowing inadmissible hearsay into evidence. The cases reported on herein come to us from the Second, Fourth, Fifth, Eighth and Ninth Circuit courts of appeals.

            The introduction of hearsay statements in the context of criminal cases, whether federal or state must be assessed in the light of defendant’s right to confrontation under the Sixth Amendment.¹⁸⁰  The Confrontation clause does not operate as an absolute ban on hearsay evidence.¹⁸¹  If the declarant is unavailable and the statement bears adequate indicia of reliability hearsay declarations may be received into evidence without violating a defendant’s right to confrontation.¹⁸²   The indicia of reliability requirement can be met either of two ways: (1) where the hearsay statement falls within a firmly rooted hearsay exception; or (2) where it is supported by a showing of particularized guarantees of trustworthiness.¹⁸³

            In U.S. v. Sanchez-Lima,¹⁸⁴the Ninth Circuit reversed the conviction of Sanchez-Lima for assault on a federal officer and determined that evidence he sought to admit at trial under the residual exception should have been admitted.  In 1996, Sanchez-Lima, an alien, and others illegally entering the U.S. from Mexico were arrested two miles east of the Otay Mesa port of entry by border Patrol Agents.¹⁸⁵  At the time of his apprehension Sanchez-Lima struck an agent with a rock. Defendant was arrested for assault on a federal officer in violation of 18 U.S. C.  §111.¹⁸⁶  At trial Sanchez-Lima asserted a self defense claim alleging he had been pistol whipped by the federal officer before striking him.¹⁸⁷

            In all, the Border Patrol agents apprehended twenty-two aliens that night.  The Border patrol and the FBI interviewed and videotaped all of these aliens the night of their apprehension.  At trial Sanchez-Lima alleged that these interviews contained evidence in support his self defense theory. The remaining aliens were deported on May 29, 1996.¹⁸⁸ The trial court did not allow admission of the videotaped statements.

            On appeal Sanchez-Lima asserted that the failure to admit the videotaped interviews pursuant to the residual exception denied him his Sixth Amendment right to present a defense.  The Ninth Circuit agreed.¹⁸⁹  That Court reviewed Rule 807 and determined that the videotaped statements contained circumstantial guarantees of trustworthiness and met the other criteria of the rule.  The government had adequate notice of the intended use of the evidence. The Court found the statements were trustworthy because the declarants statements (1) were under oath and subject to the penalty of perjury; (2) the statements were voluntary;(3) the statements were based on facts within their own personal knowledge; (4) the statements did not contradict any previous statements to government agents or defense investigators; and (5) the testimony was preserved on videotape for the jurors to view their demeanor.¹⁹⁰  The Court also found that the government had the opportunity to develop the testimony of these witnesses and had notice of the videotapes.¹⁹¹  The Court further found that the videotaped statements constituted evidence of a material fact regarding Sanchez-Lima’s self defense theory. Finally, the Court found that these statements were more probative than any other evidence which could be procured by reasonable efforts.¹⁹²

            In refusing to admit the sworn videotaped statements the district court effectively prevented Sanchez-Lima from exercising his Sixth Amendment right to present a defense.  The decision appears well reasoned and does no abuse to the hearsay rule.

            In U.S. v. Bryce,¹⁹³ the Second Circuit reviewed Bryce’s convictions for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine. The convictions grew out of law enforcement surveillance of persons suspected of narcotics trafficking.¹⁹⁴  Agents intercepted and recorded seven telephone conversations between Bryce and his co-defendant Johnson and one conversation between Johnson and another individual named Gomez.¹⁹⁵

            During the Bryce and Johnson conversations Bryce arranged to sell cocaine to Johnson.  Johnson, in turn telephoned Gomez and informed him that Bryce was selling cocaine.¹⁹⁶  Johnson and Gomez expressed concern during the conversation that the price quoted would depress the price in other transactions.  Nevertheless, after discussing matters with Gomez Johnson called Bryce back and said he would buy two kilograms of cocaine.¹⁹⁷  Johnson and Bryce agreed to meet in fifteen minutes.  The meeting never took place, because Bryce called Johnson several hours later to say he had only one left. Johnson pleaded with Bryce to sell him the one kilogram.¹⁹⁸  Bryce agreed and they arranged to meet later the day.  This meeting never happened because Johnson called Bryce five days later and asked if he still had the cocaine.¹⁹⁹  Bryce indicated that he did and they agreed to meet.  Several days later Johnson was arrested.  Soon thereafter, Bryce was also arrested.²⁰⁰ No evidence of the cocaine itself was presented at trial.

            On appeal Bryce challenged his conviction on, among other grounds, that the taped telephone conversation between Johnson and Gomez in which Johnson repeated Bryce’s claim that he had cocaine for sale and had distributed it to others was inadmissible hearsay.²⁰¹ The district court had admitted the telephone conversation pursuant to the residual exception of Rule 807.

            The Second Circuit in analyzing the rule and the facts found that Bryce did not dispute that the statements in the Johnson Gomez tape were not material, that the declarants were unable to testify, or the government complied with the notice requirement of the rule.²⁰² The Court found that Bryce’s objection was that the admission of the tape violated his Sixth Amendment confrontation rights and therefore could not have been deemed to advance the interests of justice.²⁰³ The Court believed that the resolution of the of the argument was linked to trustworthiness.  The Court found that the Johnson Gomez tape had a high degree of trustworthiness.²⁰⁴

            The Second Circuit had already held in U.S. v. Mathews²⁰⁵ that:

 

Ordinarily a confession of an accomplice resulting from formal police interrogation cannot be introduced as evidence of guilt of an accused, absent some circumstance indicating authorization or adoption.  On the other hand, if the statement is made to a person whom the declarant believes is an ally rather than a law enforcement official, and if the circumstances surrounding the portion of the statement that inculpates the defendant provide no reason to suspect that the inculpatory portion is any less trustworthy than the part of the statement that directly incriminates the declarant, the trustworthiness of the portion that inculpates the defendant may well be sufficiently established that its admission does not violate the Confrontation Clause.²⁰⁶

 

            Under this theory the Court found that the Johnson Gomez tape did not violate Bryce’s Confrontation rights.  The Court specifically found (1) the statements were obtained via a covert wiretap that neither Johnson nor Gomez was aware; (2) the statements were made during the same time period that Johnson was conversing with Bryce; (3)Johnson’s statements implicated both himself and Bryce as participants in a narcotics conspiracy; and (4) Gomez was Johnson’s colleague in the narcotics trade.²⁰⁷ Based on these factors the Court found there was little reason to believe that Johnson and Gomez had any motive to lie, or were lying.²⁰⁸ With this analysis the Court found the admission of the tape was proper under both Rule 807 and the Confrontation Clause. Here the court rightfully looked to the surrounding circumstances of Bryce’s drug activities to find support for the appropriate indicia of reliability that made the statement trustworthy. With such analysis it is unlikely that the residual exception will swallow the hearsay rule.

            Ultimately, the Second Circuit upheld Bryce’s conspiracy conviction, but reversed the possession with intent to distribute cocaine conviction on the ground that there was no corroborating evidence that Bryce actually did possess cocaine on the dates specified in the indictment.²⁰⁹

            In U.S. v. Papajohn,²¹⁰ the Eight Circuit found that use of the grand jury testimony of an unavailable witness admitted pursuant to the residual exception in an arson and conspiracy trial was proper. Ms. Papajohn and her husband, Donald Lee Earles were suspected of burning down their convenience store in order to gain insurance proceeds.²¹¹  A grand jury was convened before which Mr. Earle’s son, Donnie, testified three times.²¹² During Donnie’s first grand jury appearance, he testified that he did not know who burned down the store.  During his second grand jury appearance, he changed his story, stating that Ms. Papajohn and his father conspired to burn down the store for the insurance money.²¹³  During Donnie’s third grand jury appearance, he claimed his Fifth Amendment right to remain silent and refused to testify. ²¹⁴

            At the subsequent trial of Papajohn and Earles, Donnie again refused to testify.²¹⁵  The trial court declared Donnie an unavailable witness and allowed the government, over objections of the defense, and pursuant to the residual exception to the hearsay rule to read to the jury portions of the transcripts of all three of  Donnie’s appearances before the grand jury.²¹⁶  The jury convicted both defendants.²¹⁷

            On appeal, Papajohn argued that she should be granted a new trial on the basis of the Supreme Court’s holding in the case of Lilly v. Virginia.²¹⁸  In Lilly the Court held that the admission of a nontestifying accomplice’s confession violated the defendant’s right to confront his accuser.²¹⁹  However, the Eight Circuit distinguished the facts of Lilly:

…Donnie was never arrested or charged with a crime.  The obvious incentive that the captured accomplice in Lilly had to shift blame is not present in our case. 

We recognize that although Donnie was not charged with a crime at the time he made the statements, he might still have had some incentive to blame [defendants ], so that he would not be later charged with the arson.  It seems to us, however, that it can almost always be said that a statement by a declarant that incriminates another person in a crime will make it less likely that the declarant will be charged with the crime….We also find that the conditions under which the disputed hearsay statement was made in our case differ significantly than in Lilly.  In Lilly the accomplice’s statements were made in response to leading police questions, asked during custodial interrogation that took place very late at night, shortly after his arrest.²²⁰

 

            The court in Papajohn found that the grand jury testimony satisfied the requirement of having  equivalent circumstantial guarantees of trustworthiness required of Rule 807. The court found that Donnie’s testimony had been (1) given in a formal proceeding; (2) under oath;                       (3) before a grand jury.²²¹  Also, (4) Donnie was not in police custody, (5) nor had he been charged with any crime at the time the testimony was given.²²² Further, (6) he had been asked non-leading questions by the government, and (7) he answered them with lengthy narratives.²²³ Papajohn’s convictions were affirmed by the Eighth Circuit.²²⁴

            The Eight Circuit’s analysis of the appropriate indicia of reliability factors supporting residual exception as it applied to this situation does no harm the hearsay rule.  It is difficult to argue abuse of the hearsay rule here.

            In U.S.  V. Brothers Construction,²²⁵ the Fourth Circuit reached an opposite result with respect to grand jury testimony that had been admitted pursuant to the residual exception. Brothers Construction Company of Ohio and Tri-State Asphalt Corporation were convicted of conspiracy to defraud the United States,  mail fraud, and with making false statements to the government.  Their trial and convictions grew out of a scheme whereby the two companies falsified records in connection with obtaining highway construction subcontract work in the state of West Virginia.²²⁶ Specifically, the companies obtained federal highway money to comply with the development of “disadvantaged business enterprises”(“DBEs”).  However, no disadvantaged business employees ever performed any of the subcontract work.²²⁷

            Robert Samol, an officer and in-house counsel for Tri-State, had testified in the grand jury investigating the case that prior to sending the state a  letter of certification of the company meeting its DBE goals under its subcontract he learned that there had never been an independent DBE work force.²²⁸  At trial Samol invoked his rights under the Fifth amendment and refused to testify.²²⁹ The trial court determined that Samol was unavailable and concluded that his grand jury testimony was sufficiently reliable. The court admitted the grand jury testimony pursuant to the residual exception.²³⁰  On appeal both Brothers and Tri-state asserted that it was improper to have allowed the grand jury testimony read to the jury.²³¹ Here, the Fourth Circuit agreed.

            The court observed that the nature of grand jury testimony provided some indicia of trustworthiness because it was given in the solemn setting of the grand jury, under oath and the danger of perjury, and in the presence of jurors who were free to question and assess credibility, and a court reporter made an official transcript of the proceedings did not make grand jury testimony per se reliable.²³²

              The Court held that with respect to grand jury testimony they were still required to consider the totality of the circumstances of the testimony for particularized guarantees of trustworthiness.²³³

            In considering the totality of the circumstances in this case the Court found that Samol’s grand jury testimony was suspect.  During the oral argument of the case the government acknowledged that after Samol’s appearance at the grand jury, the government had begun an investigation to determine whether Samol had committed perjury through the same testimony that the government sought to introduce.²³⁴ The Court held that it had serious reservations about the reliability of testimony which, at least in part, the government found so untrustworthy that it would consider bringing a perjury charge.²³⁵  As a result, the Court concluded that Samol’s grand jury testimony was not properly admitted pursuant to the requirements of the residual exception. Such reasoning is similar to that used by the district court in Puerto Rico in the Vasquez case that found Mr. Lopez’s memory problems a weak foundation for the admission of statements pursuant to the residual exception. The determination to not admit the grand jury testimony in Brothers was the correct one and not in conflict with Papajohn when all of the circumstances are analyzed.

            Although the court found that the admission of the grand jury testimony against Brothers was an error, they found it to be harmless error.²³⁶  The Fourth Circuit found that there was other sufficient evidence to affirm the convictions of both Brothers and Tri-State.²³⁷

            In U.S. v. Phillips,²³⁸ the Fifth Circuit found that the trial court did not abuse its discretion in refusing to apply the residual exception to admit alleged exculpatory statements of a witness proffered by defendants.²³⁹ The case involved convictions on several schemes of local corruption involving ghost employees, payment of salary kickbacks, and misuse of state government funds by Phillips, the tax assessor for St. Helena Parish, Louisiana, and Newman, a friend and political supporter who owned the largest hardware store in the Parish.²⁴⁰

            Phillips and Newman were involved in many schemes. The Fifth Circuit found that the salient scheme for purposes of the review of the use of the residual exception involved Phillips, Newman, and Newman’s wife, Jean, who was deceased by the time of trial.²⁴¹  Starting in 1990, Phillips put Newman and his wife on the tax assessor payroll at a salary of $800 per month and health benefits.²⁴²  The health benefits were important because Jean had been diagnosed with cancer.  Jean subsequently died of cancer in 1992.²⁴³  She remained on the tax assessor payroll until one month prior to her death.²⁴⁴  Facts at trial showed that over the time period of this scheme Newman kicked back most of their $800 a month salary to Phillips, less what was need to pay federal taxes at the end of the year.²⁴⁵ Evidence at trial showed that Newman and his wife did little or no work for the tax assessor.²⁴⁶

 

            At trial defendants sought to admit exculpatory statements made by Jean Newman to her friend Margaret Carter to show that she was working for the assessor’s office.²⁴⁷ The trial court would not admit the statements under the residual exception.  If she been allowed to testify defendants maintain that Carter would have testified that one day, while in the hardware store, she noticed Jean working with several pieces of paper.  When Carter inquired about the nature of the paperwork, Jean allegedly responded that she was working on a project for Phillips that had something to do with land.²⁴⁸

            The Fifth Circuit, in a footnote, enumerated the requirements of Rule 807, and then held:

The passing comment made by Jean concerning employment is arguably vague.  It may be correct that Jean would have no reason to lie in making a passing comment to a casual acquaintance concerning the nature of any paperwork she was doing.  It may also be correct, however, that Jean’s motivation to lie – her desire to maintain the favorable status of her pseudo-employment for the purpose of receiving health coverage – was so strong that any statements made concerning her supposed employment with the assessor’s office cannot be trusted. ²⁴⁹

           

            The Court found that regardless of which option seemed more persuasive, neither presented a definite and firm conviction the district court made a clear error of judgment by excluding the statements.²⁵⁰  As such, the Court did not disturb the ruling of the trial court with respect to the hearsay exclusion.  Again, good analysis by the court of the circumstances and motivations for the proffered statement found that there was inadequate indicia of reliability to support the trustworthiness of the statement.

            Can one find abuse of the residual exception with respect to any of these federal criminal  cases?  Of course not.  The federal courts have used good analysis and common sense in assessing the equivalent guarantees of trustworthiness required of evidence admitted under Rule 807. In Sanchez-Lima, Bryce, and Papajohn the court found equivalent guarantees of trustworthiness for the statements after thoroughgoing analysis. In Brothers and Phillips analysis by the courts showed that the admission of the statements sought to be admitted were unreliable and not supported by equivalent guarantees of trustworthiness.  Although the standard used to reach the decision to admit the evidence pursuant to the residual exception was different, it appears that such decisions were solid and reasonable in each case,

              Let us now turn our attention to the various states who since 1997 have reported cases that involved the residual exception.  Could it be that state courts are abusing the hearsay rule by its overindulgent use of the residual exception?  The evidence from the cases says no.

 

IV. THE  RESIDUAL  EXCEPTION  IN  STATE  COURT  CASES

 

A. CIVIL CASES

            Our search of the reported use of the residual exception in state cases since 1997, yielded only a small number of such reports in civil cases.  Such cases were reported from the states of Colorado,²⁵¹ Delaware,²⁵² and Arkansas.²⁵³ A review of these cases shows that fears of the residual exception in state court cases swallowing the hearsay rule as we know it is highly unlikely.  The judges in the state courts appear to be very careful with respect to the admission of hearsay pursuant to the residual exception.  These judges use the same analytical framework of seeking to determine whether there are appropriate indicia of reliability to give the statements trustworthiness.  These same judges seek to determine whether there has been proper notice of intent to use the exception.

            In the Colorado case, Board of County Commissioners of Adams County v. City and County of Denver,²⁵⁴ the Colorado Court of Appeals upheld the introduction by plaintiffs, pursuant to the residual exception to the hearsay rule, of a study prepared for Defendant. The case involved a breach of contract action brought by the county concerning excessive noise levels by the defendant City of Denver’s airport.²⁵⁵ The study, prepared for Denver, showed that a sixth runway would increase noise levels.²⁵⁶   The court found the report was probative of the validity of Denver’s defenses ands that it was not inherently unreliable.²⁵⁷  Plaintiff county ultimately prevailed and received damages for the excessive noise.²⁵⁸

            The admission of hearsay statements were, also, admitted pursuant to the residual exception in a Delaware case.  In Juran, et al. v. Bron, et al.²⁵⁹ the Delaware Court of Chancery reviewed the trial of plaintiffs and defendants involved in a partnership venture.  Plaintiffs alleged fraud and breach of fiduciary duty against defendants.²⁶⁰  The court trial court had admitted into evidence a conversation of the son of one of defendants that went to the heart of the plaintiff’s fraud, bad faith, and fiduciary duty claims.²⁶¹  The Appeals Court upheld this ruling finding that the statements had circumstantial guarantees of trustworthiness.  The Court found that in an action for fraud and breach of fiduciary duty where few nonparties have knowledge of the facts, statements by a witness in a position to know the truth should be admitted.²⁶²

            Lincoln v. AAA Bail Bond Company²⁶³ was an Arkansas case where the introduction of evidence pursuant to the residual exception was found to be reversible error. In Lincoln appellant Lincoln brought suit to collect unpaid commissions he claimed to have earned prior to his termination.²⁶⁴  A judgment, however, was entered in favor of the appellee bail bond company.²⁶⁵  The Court of appeals reviewed the admission an exhibit relied upon by appellee to show that Lincoln owed the company money. The exhibit was a list concerning accounts receivable which allegedly reflected monies collected by Lincoln but not turned in to the company.²⁶⁶

              The Court of Appeals found the introduction of this evidence was  inadmissible under the residual exception.²⁶⁷  They held that the list had not been prepared in the regular course of business, but was prepared for a special purpose  — to show the court Lincoln owed the company money.²⁶⁸  The court also found that the source of the information contained in the exhibit lacked trustworthiness, since the information was provided by criminal defendants who had the incentive to inflate the amount of monies paid so as to reduce their own debts.²⁶⁹

            Each of these state courts was cognizant and discerning of the requirement that there be circumstantial guarantees of trustworthiness before evidence could be admitted under the residual exception. Although these state cases are far less analytical than those reported from the federal courts, they all articulate in a well reasoned way the reason the hearsay statements were admissible or inadmissible.  Again, in these states there should be no worry that the residual exception will swallow the hearsay rule.  It is clear the state court judges in the civil cases reported on here have not abused their power with respect to the residual exception.

 

B.  CRIMINAL CASES

            Let us now briefly examine the state criminal law cases reported since 1997, which have involved the residual exception. The state courts must often balance the residual exception against a defendant’s confrontation rights.  A review of the state criminal cases shows that such state courts are very careful concerning admission of hearsay pursuant to the residual exception.

            In Arkansas the Court of Appeals of that state have upheld trial judges’ refusal that a defendant be allowed to admit hearsay pursuant to that state’s residual exception on several occasions.  In Clark v. Arkansas,²⁷⁰ the defendant, on trial for murder, sought to introduce statements through a police detective who had allegedly heard that other persons had bragged to confidential police informants that they, and not defendant had committed the murder.²⁷¹  The trial court and the Appeals court found no guarantees of trustworthiness to such alleged statements and excluded the evidence.²⁷²

            In Bilyeu v. Arkansas,²⁷³ the Court of Appeals again upheld the trial court’s refusal to admit statements pursuant to residual exception.  Bilyeu, on trial for the death of his girlfriend’s nineteen month old son sought to introduce a diary, purportedly written by the girlfriend to show that he could not have killed the child on the day in question.²⁷⁴ The courts found that since the diary was unsigned and undated that it did not contain equivalent guarantees of trustworthiness required by the state’s residual exception.²⁷⁵

            In Williams v. Arkansas,²⁷⁶ defendant’s attempt to introduce hearsay through the residual exception also failed.  In this murder and kidnapping case Williams gave a statement concerning his involvement in the crimes at the time of his arrest.²⁷⁷  He later made a different and less inculpatory statement to Country detectives prior to trial.²⁷⁸  At trial the state introduced, in its case in chief, only Williams’ first statement.  Williams sought to introduce his second statement.  The court ruled that it was inadmissible under the residual exception because there was no guarantee of trustworthiness to this second statement which Williams made after a co-defendant had implicated him.²⁷⁹  The court contended that Williams had every reason to give detectives a self serving statement to minimize his participation in the crimes.²⁸⁰

            The Arkansas cases show that there is little likelihood that the residual exception will swallow the hearsay rule or that judges there are abusing the use of the exception. In Clark, Bilyeu or Williams none of the defendants could show the requisite indicia of reliability surrounding the statements they proffered to make one believe that they were trustworthy.

            In Colorado v. Meyer,²⁸¹ the court of appeals of that state upheld the prosecution’s right  to introduce, pursuant to the residual exception, a verified complaint to obtain a restraining order sworn out by the murder victim against defendant.²⁸²  The Court found that the complaint possessed sufficient indicia of reliability as a court document, and that the victim had little reason to fabricate.²⁸³  In that the statement possessed the necessary guarantees of trustworthiness, admission of the statement did not violate defendant’s right of confrontation.²⁸⁴

            In Delaware v. Anderson, et. al.,²⁸⁵ the court did not allow the prosecution to introduce, pursuant to that state’s residual exception, statements made by the victim in a felony murder case while he was in the hospital.  The victim gave three statements concerning the identity of the defendants before he died.²⁸⁶  The court found that over the course of the victim’s hospitalization he suffered nightmares and hallucinations.²⁸⁷  The court, also, found that over the course of the hospitalization the victim discussed the case with numerous people.²⁸⁸  The court maintained that such facts raised doubts as to whether the proffered statements against defendants came from the victim’s unaided memory.²⁸⁹  Lacking particularized guarantees of trustworthiness, the court excluded the statements because to admit them would have deprived defendants of their right to confrontation.²⁹⁰

            In an earlier case, Delaware v. Bowe et. al.,²⁹¹ the court had reached a similar finding with respect to the in hospital photo identifications of defendants by the victim nine days after an assault.

The court found that the photo identifications, sought to be introduced by the prosecution came after the victim had spoken with the detective investigating the case nine times.²⁹²  The court was not convinced that the identification was not influenced by the detective or by something other than a desire to tell the truth.²⁹³   There was no appropriate indicia of reliability to the identifications to be found in this situation. The identifications were disallowed pursuant to the residual exception.

            In Iowa v. Castaneda,²⁹⁴ the Iowa Supreme Court overturned defendant’s conviction for child abuse and remanded the case.  The court provided an explanation supporting the use of the residual exception on remand.  Yet, the court gave no thoroughgoing analysis for the trial court to follow in order to determine whether there existed  particularized guarantees of trustworthiness with respect to the reintroduction at the retrial of a videotaped statement of the child  victim.²⁹⁵

Castaneda is disappointing in this respect.

            The same court had given an excellent analysis of its findings of particularized guarantees of trustworthiness in the case of Iowa v. Hallum.²⁹⁶  In Hallum the Court allowed the prosecution during a murder trial, pursuant to the residual exception, to introduce defendant’s accomplice’s videotaped narrative of the crime.²⁹⁷

            The accomplice in that case was Carlos Medina.  The Iowa Supreme Court allowed Medina’s statement into evidence pursuant to the residual exception after finding (1) Medina was not offered leniency in exchange for his statement; (2) he did not attempt to shift blame to the defendant; (3) he unequivocally acknowledged that he committed serious offenses and did not attempt to avoid responsibility for his own acts; (4) he did not attempt to curry favor with the police; (5) he voluntarily gave his statement after being given his Miranda rights; (6) he had not been caught “red-handed” and so was not in a situation where his only recourse was to share blame by implicating the defendant; (7) His statement was given shortly after the commission of the crime while his memory was fresh; and (8) his statement was extremely detailed.²⁹⁸ This thoroughgoing analysis by the court demonstrated that thee were appropriate indicia of reliability to show that the statement was trustworthy.

            In Minnesota v. Martin,²⁹⁹The Supreme Court of Minnesota upheld the trial court’s refusal to allow defendant who was on trial for murder to introduce a double hearsay statement as part of his defense.³⁰⁰  The Court found that defendant had failed to establish sufficient guarantees of trustworthiness because he made no offer of proof about the circumstances of the conversations, about the declarant’s memory³⁰¹.  Additionally, the Court found that before defendant had offered this double hearsay testimony, he had already introduced extrinsic evidence to contradict the proffered testimony.³⁰²

            A year earlier in Minnesota v. Martin,³⁰³ involving the same defendant the Supreme Court of Minnesota reversed the state appellate court’s ruling that prior testimony of Martin’s co-defendants who were tried separately could be introduced at his trial by the prosecution.³⁰⁴  The Supreme Court found that the appeals court erred when it concluded that the entire portions of the co-defendants’ trial testimony bore sufficient indicia of reliability to merit admission under the residual exception and the Confrontation Clause.³⁰⁵ The Supreme Court found that some of the proffered testimony was so unreliable it would have to be subjected to cross examination.

            In the Matter of L.E.P.,³⁰⁶ a case involving a juvenile, the Minnesota Supreme Court examined the criteria state courts should articulate in evaluating statements by young children admitted pursuant to the residual exception.³⁰⁷ The criteria included evaluating the lack of motive to fabricate, spontaneity and demeanor of the child, expressions unexpected from a child of that age, and the absence of leading questions.³⁰⁸

            In Minnesota v. Wikan,³⁰⁹ the Court of Appeals upheld the prosecution’s introduction of prior inconsistent statements of a victim of spousal abuse pursuant to the state’s residual exception.  The court found that the prior statements implicating her spouse, which differed from her testimony at trial, possessed the requisite guarantees of trustworthiness.³¹⁰  The Court found that the statements were reliable because (1) they were against interest due to the relationship; (2) she did not appear confused when she made the statements; (3) the statements were corroborative of what other witnesses testified, and (4) they were made just after the event.³¹¹

            In Michigan v. Lee,³¹² the Court of Appeals of that state upheld the admission, pursuant to the state’s residual exception, statements of a victim of an armed robbery who died before the trial.  The declarant identified defendant as the perpetrator.  The Court found the statements had particularized guarantees of trustworthiness.³¹³  Among other factors, the court found were that (1) the victim suffered no memory loss from the incident; (2) that he was coherent when he made the statements; (3) he was not confused; (4) and the statements were voluntary.³¹⁴  Also, the court found that the statements were (5) not prompted by pressure from police or others.³¹⁵

            In Michigan v. Welch,³¹⁶ the Court of Appeals upheld the trial court’s decision to not allow a hearsay statement offered by the defendant pursuant to the residual exception.³¹⁷ Defendant on trial for the murder of a girlfriend he allegedly pushed off a bridge to her death sought the introduction of  statements by witnesses who allegedly heard the victim say she was going to kill herself moments before her plunge.³¹⁸  Here the court held that the statements were not reliable.  The court found that statement had not been related directly to the police officer who would testify.  The defense sought too have the police officer to testify to what a witness had overheard from others.³¹⁹  However, there was (1) no evidence that this witness actually heard the statement by the victim; (2) no other witnesses testified as to such statement; (3) sixteen minutes had elapsed between the victim’s plunge and the witness relating the information to the officer.³²⁰  The court also found unreliable the fact that the officer who approached the group of witnesses (4) found them laughing and giggling about the situation.³²¹ Finally, the court found the officer (5) had not written down the statement.³²² A sad set of fact that would not support a finding of equivalent guarantees of trustworthiness.

            In Nebraska v. Garner,³²³ the Supreme Court of that state upheld the trial court’s refusal to introduce tapes of a false confession at a murder trial.  Defendant, on trial for murder sought introduction of the taped confession of an 11 year boy who confessed to the crime.³²⁴  The 11 year old had been seen at the victim’s house prior to the murder.³²⁵  He was questioned by police for seven hours before defendant became the true suspect of the crime.  The 11 year old later said he made up the confession so that he could go home and go to sleep.³²⁶  The 11 year old was available and testified at trial.³²⁷  The Court found the tapes were inadmissible hearsay and that it was not an abuse of discretion for the trial court to not allow the tapes pursuant to the residual exception.³²⁸ There was no guarantee of trustworthiness to the tapes made under the conditions of this case.  The court rightly decided in this situation that it was best that the 11 year old who was available for the trial testify and be subjected to cross examination.

            In Nebraska v. Jacob,³²⁹the Nebraska Supreme Court again upheld a trial court’s refusal to allow defendant, Jacob,  on trial for murder to introduce evidence pursuant to the residual exception.  In this case Jacob sought introduction of a videotape deposition of a used car salesman in Maine.³³⁰ Jacob who had planned to fly to England sought to sell his vehicle in Maine, where he had driven after killing his girlfriend and her new lover in Nebraska.³³¹  He sought introduction of the videotape to show his innocent behavior prior to his arrest.³³²  The Nebraska trial court did no analysis but held that the videotape would not be admitted pursuant to the residual exception.  The Supreme Court found the trial court had not abused its discretion for the “residual exception is to be used rarely and only in exceptional circumstances.”³³³  The defense had done little to show that the proffered  videotape possessed any particularized guarantees of trustworthiness.  The court was correct not to admit the evidence.

            As this review illustrates the state courts are very cautious concerning introduction of hearsay pursuant to the residual exception in criminal cases. The Arkansas Supreme Court in three separate cases would not allow introduction of defense evidence pursuant to the residual exception. In Delaware the court in separate cases twice denied prosecutors the use of  residual hearsay of unreliable identifications by crime victims who were hospitalized.  The Iowa Supreme Court gave a very thoroughgoing analysis of appropriate indicia of reliability for introduction of the statements in Hallum. In the four cases considered by the Minnesota Supreme Court the court found particularized guarantees of trustworthiness in only two of the cases.  The Michigan courts allowed testimony pursuant to the residual exception in one case but not the second.  The Nebraska court gave short shrift to defendants’ requests to introduce hearsay pursuant to the residual exception in the two cases it considered.

            As a result of this review we need not fear that the use of the residual exception is being

 abused by judges in state criminal court cases.

 

C. THE FLORIDA CASES

            As noted earlier in this article Florida does not have a residual exception akin to Rule 807. However, Florida does have two sections of its evidence code directed to the types of circumstances where residual exceptions often are applied. Section 90.803(23) allows the use of out of court statements of children 11 years old or younger in child abuse cases.  Section 90.803(24), allows introduction of such statements by elderly or disabled adults. These may be viewed as “quasi-residual” exceptions.

              This survey would not be complete without commenting on the cases in Florida where hearsay statements have been offered pursuant these “quasi-residual” exceptions. The initial question is whether such cases require the same type of Rule 807 analysis to determine whether there are appropriate indicia of reliability and notice to establish trustworthiness.  The answer is, of course, no.  There is no need for an independent analytical framework in Florida because the statutes in question set out the requirements to be followed.  If the requirement of the statute are not met the evidence is not allowed.  A review of the cases reveals that the courts of Florida are very careful with the hearsay evidence sought to be introduced pursuant to their “quasi-residual” statutes.   

            The essence of  both statutes is that they seek to test the reliability of out of court statements.  In criminal cases notice must be given.  In all cases the judge must hold a hearing outside of the hearing of the jury to determine the reliability of such statements.³³⁴ If reliable, such statements may be introduced whether the declarant is available or unavailable.³³⁵  If the declarant is unavailable, the trial judge must determine whether the hearsay statement is reliable and from a trustworthy source without regard to corroborating evidence.³³⁶  If the answer is yes, then the judge must determine whether other corroborating evidence is present.³³⁷  If the answer to either question is no, then the hearsay statements are inadmissable.³³⁸

            In Doe v. Broward County School Board,³³⁹ a trainable mentally retarded girl with Downs Syndrome had been digitally penetrated by a mentally disabled male in an after school case program at an elementary school in Broward County.³⁴⁰ Her mother brought a personal injury lawsuit claiming negligent supervision.³⁴¹ The victim was unavailable to testify at the trial. The School Board made a motion in limine to exclude from trial the victim’s hearsay statements to her mother and a psychologist on the ground that the hearsay statements were not admissible pursuant to 90.803(23), because the victim was unavailable and there was no corroborating evidence of the incident.³⁴²  The trial court granted the motion in limine.  The court then granted the School Board’s motion for summary judgment based upon the court’s conclusion that 90.803 (23), preempted all other hearsay exceptions, and as a result, the victim had no evidence with which to prove her case.³⁴³

            The Florida Court of Appeals found that the trial judge had not abused its discretion in finding that there was no corroborating evidence of the incident which would allow the introduction of the hearsay statements pursuant to 90.803 (23).³⁴⁴ Yet, the appeals court reversed the summary judgment and remanded the case for the trial judge to determine whether the victim’s out of court statements may have been admitted pursuant to other hearsay exceptions.³⁴⁵

            In Florida v. Townsend,³⁴⁶ the Florida Supreme Court reversed defendant’s conviction for abuse on a child of two years old because of errors in the trial court’s failure to make adequate findings for the admission of the child victim’s hearsay statement. The Court found that:

Section 90.803 (23) (a) (1) mandates that the trial judge in a hearing conducted outside the presence of the jury, determine whether a hearsay statement is trustworthy and reliable by examining the time, content, and circumstances of the statement, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim and any other factor deemed appropriate,,, Other factors may include… a consideration of the statements’ spontaneity; whether the statement was made at the first available opportunity following the alleged incident… whether the child used terminology unexpected of a child of similar age; the motive or lack thereof to fabricate the statement…in sum, as noted by the United States supreme Court in Wright, a court is to use a totality of the circumstances evaluation in determining reliability.³⁴⁷

           

            The Court in Townsend found, however, that the trial judge merely listed each of the statements to be considered and summarily concluded, without explanation or factual findings, that the time, content, and circumstances of the statements to be admitted at trial were sufficient to reflect that the statements were reliable.³⁴⁸  The Court found such findings insufficient under both the Florida statute and the constitutional requirements of Idaho v. Wright.³⁴⁹

            Similarly, in Hill v. Florida,³⁵⁰ the state court of appeals reversed and remanded defendant’s conviction for sexual battery and a  lewd and lascivious act committed in the presence of a 4 year old..³⁵¹ The court found that, although some of the child’s out of court hearsay statements had been found reliable pursuant to 90.803 (23), the trial court had erred when it allowed the examining physician to testify as to the child victim’s statements about the defendant’s culpability without observing the safeguards of 90.803(23), with respect to such testimony. ³⁵²

            In Florida v. Jones,³⁵³ the Supreme Court of Florida determined that by providing safeguards outlined in 90.803(23), the legislature of the Florida had sought to strike a balance between the need to consider child hearsay statements in judicial proceedings and the rights of the accused.³⁵⁴  The Court held that 90.803 (23) comported with the confrontation clauses of both the federal Constitution and the Florida Constitution.³⁵⁵

            In stark contrast to these child abuse cases, the Florida Supreme Court in Conner v. Florida,³⁵⁶ held that the use of hearsay exception for elderly adults, pursuant to 90.803(24), was, in criminal cases unconstitutional.

            In that case defendant was convicted, on a plea of nolo contendre, of armed burglary, armed robbery and armed kidnaping.³⁵⁷  The victim was an 84 year old man who died prior to trial.  The trial court ruled that hearsay statements he gave to police about the crime were corroborated by other evidence and that the State would be allowed in a hearing to establish that the circumstances surrounding the statements guaranteed their reliability.³⁵⁸

             The Supreme Court of Florida found deficiencies with the statute as it applied to elderly persons.  The Court found that 90.803 (24), in defining elderly as an adult 60 years of age or older, applies to a much broader class of adult declarants than did the child abuse statute of 90. 803 (23).³⁵⁹  As written the statute applied to all persons over 60 years old.  The Court also found, unlike the child abuse statute which was limited to acts describing child abuse, neglect, or sexual abuse, under the 90.804 (24) exception for the elderly, declarants could describe any act of abuse, neglect any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any other violent act.³⁶⁰  Thus the elderly hearsay exception would not be limited to crimes concerning elder abuse.  Finally, the Court could not determine a list of factors for the elderly, unlike for the factors for children set out in 90.803 (23) that the Court believe would guarantee the reliability of the hearsay statements of the elderly adult.³⁶¹

            The case was well reasoned.  And, from such reasoning it is easy to presume that though Florida has no residual rule akin to 807, the “quasi-residual” exceptions it has adopted for the elderly and children will not swallow the hearsay rule as we know it.

 

V.  CONCLUSION

           

            This review of the twelve federal cases and twenty two state cases which relied on the residual exception in some part show that there has been no abuse of the rule by the courts at the federal or the state level since the 1997 amendment to the residual exception.  Courts appear vigilant with respect to analyzing the need for particularized guarantees of trustworthiness for statements proffered pursuant to the exception.  Very often, such analysis shows that the statements lack the particularized guarantees of trustworthiness needed to pass muster. We need the residual exception to the hearsay rule.  It is the exception that gives flexibility to the rule.  If the states are reluctant to adopt such residual exceptions they may well be advised to look at the Florida model, especially for child abuse and neglect cases.

           

           

 

---

¹ McCormick On Evidence, § 245 (5^th ed. 1999).

² Id. at § 245.

³ Id. at§ 245.

⁴ See, Glenn Weissenberger, Federal Rules of Evidence: Rules, Legislative History, Commentary and Authority (1999).

⁵ Fed. R.  Evid. 102 provides that “These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”

⁶ See, Fed. R. Evid. 803(1) – (23), 804(b)(1) – (6).

⁷ See, Fed. R. Evid.. 801(d)

⁸ Fed. R. Evid.. 803(24), provided:

                The following are not excluded from the hearsay rule, even though the declarant is available as witness:

                (24) Other exceptions.  A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) 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 (C) the general purpose of these rules and the interests of justice will best be served by the admission of statement into evidence.  However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including name and address of the declarant.

                Federal Rule 804(b)(5) is identical in language except for its preamble which states “the following are not excluded by the hearsay rule if the declarant is unavailable as a witness.”

⁹ See, Senate Comm.  on Judiciary, S. Rep. No. 1277, 93d Cong., 2d Sess.  18-20 (1974), reprinted in 1974 U.S. Code Cong. & Admin. News 7051,7065-66.

¹⁰ See, James W. Moore Et. Al., Moore’s Federal Practice, Federal Rules of Evidence ¶ 803.12 (1997 edition).

¹¹ See, James E. Beaver, The Residual Hearsay Exception Reconsidered, 20 Fla. St. U. L. Rev 787, 789 (1993).

¹²Id . at 790. But also, cf. G. Michael Fenner, The Residual Exception To The Hearsay Rule: The Complete Treatment, 33 Creighton L. Rev. 265. Fenner believes the residual exception is the safety valve of the hearsay rule.

¹³ Thomas Black, Federal Rules of Evidence 803(24) & 804(b)(5) – The Residual Exceptions – An Overview, 25 Houston L. Rev. 13, 56 (1988).

¹⁴ Fed. R. Evid. 807 became effective on December 1, 1997, See, Federal Rules of Evidence Handbook      ( Anderson Publishing 1999).

¹⁵ Fed. R. Evid. 807.

¹⁶ See Federal rules of Evidence Handbook, supra note 13 at 155.

¹⁷ Beaver, supra at note 10, at 790

¹⁸ Beaver, supra at note 10, at 791.

¹⁹ Beaver, supra at note 10 at 791.

²⁰See, McCormick, supra at § 324.

²¹ In May, 2001 the author, with assistance from the Barry University School of Law Library reference staff,  undertook an on-line search of cited cases referencing the residual exception since 1997.  The cases cited herein are a result of that search.

²² Fed. R. Evid. 801(a).

²³ Fed. R. Evid. 801(c).

²⁴ See, McCormick, supra at note 2, at § 246.

²⁵ See, McCormick, supra at § 254.

²⁶  See, McCormick, supra at§ 256.

²⁷ Fed. R. Evid. 803(2)

²⁸ Fed. R. Evid. 803(4)

²⁹ Fed. R. Evid. 803(6)

³⁰ Fed. R. Evid. 803(16)

³¹ Fed. R. Evid. 804(b)(2)

³² Fed. R. Evid 804(b)(3)

³³ Weinstein’s Federal Evidence, Volume 6, Table T1 (2d ed. 2000)

³⁴ Id. at T2- T7: The Alabama Rules of Evidence became effective 1/1/96; Alaska Rules effective 8/1/79; Arizona Rules effective 9/1/77; Arkansas Rules effective 7/1/76; Colorado Rules effective 1/1/80; Delaware Rules effective 1/1/80; Florida Rules effective 7/1/79; Hawaii Rules effective 1/1/81; Idaho Rules effective1/1/85; Indiana Rules effective 1/1/94; Iowa Rules effective 1/1/83; Kentucky Rules effective 1/1/92; Louisiana Rules effective 1/1/89; Maine Rules effective2/2/76; Maryland Rules effective 1/1/94; Michigan Rules effective 3/1/78; Minnesota Rules effective 7/1/77; Mississippi Rules effective 1/1/86; Montana Rules effective 7/1/77; Nebraska Rules effective 8/24/75; Nevada Rules effective 1/1/71(based on Preliminary Draft of the Federal Rules); New Hampshire Rules effective 1/1/85; New Jersey Rules effective 1/1/93; New Mexico Rules effective 1/1/73 ( amended 7/1/76 to conform to the changes made to the draft Federal Rules by Congress); North Carolina Rules effective 7/1/84; North Dakota    Rules effective 2/15/77; Ohio rules effective 7/1/80; Oklahoma Rules effective 10/1/78; Oregon Rules effective 1/1/82; Pennsylvania Rules effective 10/1/98; Puerto Rico Rules effective 10/1/79; Rhode Island Rules effective 10/1/87; South Carolina Rules effective 9/3/95; South Dakota Rules effective 7/1/78; Tennessee Rules effective 1/1/90; Texas Rules effective 3/1/98; Utah Rules effective 9/1/83; Vermont Rules effective 4/1/83; Washington Rules effective 4/2/79; West Virginia Rules effective2/1/85; Wisconsin Rules effective 7/1/74(based on Final Draft of the Federal Rules); Wyoming rules effective 1/1/78.  The Military Rules of Evidence are based on the Federal Rules and were adopted 3/12/80.

³⁵ Id. at Table T1.

³⁶ Id. at Table T7.

³⁷ Id. at Table T106 – T112.    

³⁸ Id. at Table T159 – T161.The states that have adopted residual exceptions are: Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Louisiana, Maryland, Michigan, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Puerto Rico, Rhode Island South Dakota, Utah, West Virginia, Wisconsin, Wyoming, and the U.S. Military.

³⁹ Id. at Table T159 – T161.

                 See also, Colo. R. Evid. 807, effective January 1, 1999.

⁴⁰ Id. at Table T159 – T161.

⁴¹ Id. at T160.

⁴² The State of Nevada has no residual exception where the declarant is available.  Nevada does provide a residual exception akin to Rule 807 when the declarant is unavailable.  However, the Nevada rule omits the notice requirement.

⁴³ Id. at T160 and T162.

⁴⁴ See, Fla. R. Evid. §§ 90.803(23) and 90.803(24).

⁴⁵ Florida R. Evid. §90.803(23)(a).

⁴⁶Id. at §90.803(23)(a) 1.

⁴⁷ Id. at§90.803(23)(a) 2(a) and (b).

⁴⁸ Id. at § 90.903 (a) 2 (b).

⁴⁹ Id. at §90.803(23)(b).

⁵⁰ Id. at § 90.803(23)(c).

⁵¹ Id. at § 90.803(24)(a) – (c).

⁵² See, Amendments to the Florida Evidence Code, 25 F.L.W. S909 ( Fla. Oct.26 2000).

⁵³ Id.

⁵⁴ 497 U.S. 805 (1990)

⁵⁵ Id. at 827.

⁵⁶ Id. at 823 .

⁵⁷ Id. at 823 .

⁵⁸ Id. at 824 -25 .

⁵⁹ Id. at 826  .

⁶⁰ See, Fed. R. Evid. 804(b)(2).

⁶¹ McCormick, supra. § 324.

⁶² Id.

⁶³ Id.

⁶⁴ Id.

⁶⁵ Id.

⁶⁶ Id.

⁶⁷ Id.

⁶⁸ Id.

⁶⁹ See, Beaver, supra at 797.

⁷⁰ See, Beaver, supra at 797 -98, citing Karme v. Commissioner, 673 F.2d 1062(9th Cir. 1982), where the court found that bank records bore circumstantial guarantees of trustworthiness because of the distant location of the bank and because there was no evidence to suggest the bank records were anything other than what they purported to be.

⁷¹ Id.

⁷² Id. at 798.

⁷³ Fenner, supra at 303.

⁷⁴ Id.

⁷⁵ See, Fed. R. Evid. 102

⁷⁶ See, Gonzalez v. Digital,8 F. Supp.2d 194 ( E.D.N.Y. 1998) and Chase Bank v. Traffic Stream, 86 F. Supp. 2d 244 (E.D.N.Y. 2000) infra.

⁷⁷ See, John Paul Mitchell v. Quality King,106 F. Supp. 2d 462 (E.D.N.Y. 2000), infra.

⁷⁸ See, United States v. Gomez, 191 F. 3d 1214 (10^th Circ. 1999).

⁷⁹ See, United States v. Sanchez-Lima, 161 F. 3d 545 ( 9^th Cir. 1998), infra.

⁸⁰S ee, Iowa v. Hallum, 585 N.W. 2d 249 (1998), infra.

⁸¹ Beaver, supra at 798.

⁸² Fed. R. Evid. 807.

⁸³ Fed. R. Evid. 807.

⁸⁴ Fenner, supra at 279.

⁸⁵ Id.

⁸⁶  Id. at 281

⁸⁷ See, Fenner, supra at 280 and Beaver, supra at 802.

⁸⁸ Fed. R. Evid. 807

⁸⁹ See, Fenner, supra at 280, citing United States v. Iaconetti, 406 F. Supp. 554 (E.D.N.Y. 1976), aff’d F.2d 574 (2d Cir. 1976), cert. denied 429 U.S. 1041 (1977).

⁹⁰ 193 F.3d 1241 (11^th Cir 1999).

⁹¹ Id. at 1243.

⁹² Id at 1263.

⁹³ Id at 1249.

⁹⁴ Id. at 1244-1245.

⁹⁵ Id.

⁹⁶Id. at 1252.

⁹⁷ Id at 1252-53.

⁹⁸ Id.

⁹⁹ Id.

¹⁰⁰ Id.

¹⁰¹ Id. at 1254, citing Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547,549 (5^th Cir.1987).

¹⁰² Id at 1254.

¹⁰³ Id.

¹⁰⁴ Id. at 1255.

¹⁰⁵ Id.

¹⁰⁶ 189 F. 3d 218 (2d Cir. 1999).

¹⁰⁷ Id. at 240.

¹⁰⁸ Id. at 219.

¹⁰⁹ Id. at 220.

¹¹⁰ Id. at 223.

¹¹¹ Id. at 224.

¹¹² Id. at 240.

¹¹³  Fed. R. Evid 803(3) provides: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (3) A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition ( such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

¹¹⁴ 189 F.3d 218 at 231.

¹¹⁵ Id.

¹¹⁶ Id. at 232.

¹¹⁷ Id. at. 234.

¹¹⁸ Id. at 238.

¹¹⁹ 150 F.3d 223 (2d Cir. 1998).

¹²⁰ The notice requirement of Fed. R. Evid. 807 provides: However, a statement may not be admitted under this exception unless 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, including the name and address of the declarant.

¹²¹ Id. at 224.

¹²²Id.

¹²³ Id.

¹²⁴ Id. at 226

¹²⁵ Id. at 224

¹²⁶ Id.

¹²⁷ Id. at 225.

¹²⁸ Id.

¹²⁹ Id.

¹³⁰ 8 F. Supp. 2d 194 (E.D. N.Y. 1998).

¹³¹ Id. at 196.

¹³² Id.

¹³³ Id. at 197.

¹³⁴ Id.

¹³⁵ Id.

¹³⁶ Id. at 201.

¹³⁷ Id.

¹³⁸ Id.

¹³⁹ Id.

¹⁴⁰ Id.

¹⁴¹ Id.

¹⁴² Id. at 202

¹⁴³ 24 F. Supp. 2d 197.

¹⁴⁴ Id. at 198.

¹⁴⁵ See, P.R. Law Ann. tit. 9 § 1751.

¹⁴⁶  24 F. Supp. 2d at 199.

¹⁴⁷ Id.

¹⁴⁸ See, P.R. law Ann. tit 9§ 1751.

¹⁴⁹  24 F. Supp. 2d at 199.

¹⁵⁰ Id. at 200.

¹⁵¹ Id.

¹⁵² Id.

¹⁵³ 86 F. Supp. 2d 244 (S.D. N.Y. 2000)

¹⁵⁴ Id. at 246.

¹⁵⁵ Id. at 247.

¹⁵⁶ Id.

¹⁵⁷ Id at 251.

¹⁵⁸ Id. at 251, note 12.

¹⁵⁹ Id. at 251, note 13.

¹⁶⁰ Id. at 253.

¹⁶¹ Id. at 254, note 17.

¹⁶² Id. at 254.

¹⁶³ Id.

¹⁶⁴ Id.

¹⁶⁵ Id.

¹⁶⁶ Id at 262.

¹⁶⁷ 106 F. Supp. 2d 462 (E.D. N.T. 2000).

¹⁶⁸ Id. at 465.

¹⁶⁹ Id.

¹⁷⁰ Id. at 467-469.

¹⁷¹ Id. at 471-472.

¹⁷² Fed. R. Evid. 901(b)(4) provides, in relevant part: “… the following are examples of authentication or identification conforming to this rule: (4) Distinctive Characteristics and the like.  Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”

¹⁷³ 106 F. Supp.2d at 472.

¹⁷⁴ Id at 473.

¹⁷⁵ Id.

¹⁷⁶ Id.

¹⁷⁷ Id.

¹⁷⁸ Id.

¹⁷⁹ Id. at 478.

¹⁸⁰ U.S. Constitution, Amend. VI, provides in relevant part: “

 In all criminal cases, the accused shall enjoy the right….to be confronted with the witnesses against him…”

¹⁸¹ See, Idaho v. Wright supra. At 813.

¹⁸² Ohio v. Roberts, 448 U.S.56, 66 (1980).

¹⁸³ Wright, supra. at 816.

¹⁸⁴ 161 F. 3d 545 (9^th Cir.  1998).

¹⁸⁵ Id. at 546.

¹⁸⁶ 18 U.S.C. § 111 provides, in relevant part:

¹⁸⁷ 161 F. 3d at547.

¹⁸⁸ Id.

¹⁸⁹ Id.

¹⁹⁰ Id.

¹⁹¹ Id at 548.

¹⁹² Id.

¹⁹³ 208 F. 3d 346 (2d Cir. 1999).

¹⁹⁴ Id. at 349.

¹⁹⁵ Id.

¹⁹⁶ Id.

¹⁹⁷ Id.

¹⁹⁸ Id.

¹⁹⁹Id.

²⁰⁰ Id.

²⁰¹ Id. at 350.

²⁰² Id. at 351.

²⁰³ Id.

²⁰⁴ Id.

²⁰⁵ 20 F. 3d 538 (2d Cir. 1994).

²⁰⁶ Id. at 545-46.

²⁰⁷ 208 F. 3d at 351.

²⁰⁸ Id.

²⁰⁹ Id. at 356.

²¹⁰ 212 F. 3d 1112 (8^th Cir. 2000).

²¹¹ Id. at 1116.

²¹² Id.

²¹³ Id.

²¹⁴ Id.

²¹⁵ Id.

²¹⁶ Id.

²¹⁷ The appeal in this case was only brought by Ms. Papajohn.  She appealed her convictions for one count of conspiracy to commit arson and mail fraud, one count of aiding and abetting arson, and two counts of mail fraud. Id. at 1115.

²¹⁸ 527 U.S. 116 (1999).

²¹⁹ Id. at119.

²²⁰ 212 F.3d at 1120.

²²¹ Id.

²²² Id.

²²³ Id.

²²⁴ Id. at 1122.

²²⁵ 219 F. 3d 300 (4^th Cir. 2000).

²²⁶ Id. at 304-306.

²²⁷ Id at 306-308.

²²⁸ Id. at 308.

²²⁹ Id. 309.

²³⁰ Id. at 309-310.

²³¹ Id.

²³² Id. at 310.

²³³ Id.

²³⁴ Id.

²³⁵ Id.

²³⁶ Id.

²³⁷ Id. at 321.

²³⁸ 219 F. 3d 404 ( 5^th Cir. 2000).

²³⁹ Id. at 419.

²⁴⁰ The defendants were each convicted on all counts of a twenty nine count indictment charging conspiracy, mail fraud, engaging in an illegal monetary transaction, theft from a federally funded program, money laundering, and perjury. Id. at 407.

²⁴¹ Id. at 408 and 419.

²⁴² Id. at 407-408.

²⁴³ Id.

²⁴⁴ Id at 408.

²⁴⁵ Id.

²⁴⁶ Id.

²⁴⁷ Id. at 419.

²⁴⁸ Id.

²⁴⁹ Id.

²⁵⁰ Id.

²⁵¹ Colorado R. Evid. 804(b)(5) provides: Declarant Unavailable…A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

                N.B. On January 1, 1999, Colorado transferred its two part residual exceptions into one new Rule 807 Residual Exception.

²⁵² Delaware R. Evid. 803(24) Provides: the following is not excluded by D.R. E. 802, the hearsay rule:

                A statement not specifically covered by any of the foregoing exceptions but having circumstantial guarantees of trustworthiness, if the court determines that :

                (A) the statement is offered as a evidence of a material fact;

(B) 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

                (C) the general purposes of these rules and the interest of justice will best be served by admission of the statement into evidence.

²⁵³Arkansas R. Evid. 803(24) provides: Other Exceptions.  A statement not specifically covered by any of the foregoing exceptions but having equivalent guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) 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 (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.  However, a statement may not be admitted under this exception unless the proponent makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

²⁵⁴ 2001 Colo. App. LEXIS 564 (March 29, 2001).

²⁵⁵ Id. at 1.

²⁵⁶ Id. at 25.

²⁵⁷ Id. at 26

²⁵⁸ Id. at 29.

²⁵⁹ 1999 Del. Ch. Lexis 232.

²⁶⁰ Id. at 1.

²⁶¹ Id. at 10-11.

²⁶² Id. at 12.

²⁶³ 1998 Ark. App. LEXIS 863.

²⁶⁴ Id. at 1.

²⁶⁵ Id.

²⁶⁶ Id. at 3.

²⁶⁷ Id. at 6.

²⁶⁸ Id.

²⁶⁹ Id.

²⁷⁰ 1998 Ark. App. LEXIS 747(October 1998).

²⁷¹ Id. at 1.

²⁷² Id. at 12.

²⁷³ 1998 Ark. App. LEXIS 66 (February 1998)

²⁷⁴ Id. at 4.

²⁷⁵ Id. at 5.

²⁷⁶ 946 S.W. 2d. 678 (1997).

²⁷⁷ Id. at. 684.

²⁷⁸ Id. at 684.

²⁷⁹ Id.

²⁸⁰ Id.

²⁸¹ 952 P. 2d 774.

²⁸² Id. at 777.

²⁸³ Id.

²⁸⁴ Id.

²⁸⁵ 2000 Del. Super. Lexis 60 (2000).

²⁸⁶ Id at 1.

²⁸⁷ Id. at 12.

²⁸⁸ Id.

²⁸⁹ Id.

²⁹⁰ Id.

²⁹¹ 1997 Del. Super. LEXIS 603 (1997).

²⁹² Id. at 4.

²⁹³ Id. at 9.

²⁹⁴ 621 N.W. 2d 435 (2001).

²⁹⁵ Id. at 443-448.

²⁹⁶ 585 N.W. 2d 249 (1999).

²⁹⁷ Id. at 257-259. Some of the factors the Court found relevant to reliability was that the accomplice gave his statement without being offered leniency; he did not attempt to shift blame to defendant; he did not try to avoid responsibility for his own acts in the crime; he did not attempt to curry favor with the police; he had not been caught red-handed in the act; and he gave his statement voluntarily after being given his Miranda warnings.

²⁹⁸ Id. at 257.

²⁹⁹ 614 N.W. 2d 214 (2000).

³⁰⁰ Id. at 225.

³⁰¹ Id.

³⁰² Id.

³⁰³ 591 N.W. 2d 481 (1999).

³⁰⁴ Id. at 484.

³⁰⁵ Id.

³⁰⁶ 594 N.W. 2d 163 (1999).

 

³⁰⁷ Id. at 170-71.

³⁰⁸ Id. at 173.

³⁰⁹ 1997 Minn. App. LEXIS 271(1997).

³¹⁰ Id. at 6.

³¹¹ Id. at 6- 7.

³¹² 622 N.W. 2d 71 (2000).

³¹³ Id. at 76.

³¹⁴ Id. at 80.

³¹⁵ Id.

³¹⁶ 574 N.W. 2d 682.

³¹⁷ Id. at 685.

³¹⁸ Id. at 684.

³¹⁹ Id.

³²⁰ Id.

³²¹ Id.

³²² Id.

³²³ 614 N.W. 2d 319.

³²⁴ Id. at 323.

³²⁵ Id. at 323-24.

³²⁶ Id.

³²⁷ Id. at 329.

³²⁸ Id. 330.

³²⁹ 574 N.W. 2d 117 (1998).

³³⁰ Id. at 139.

³³¹ Id. at 128.

³³² Id. at 139.

³³³ Id.

³³⁴ See, Fla.  Evid. R. 90.903 (23) (a) (1) and 90.803 (24) (a) (1).

³³⁵ See, Fla. Evid. R. 903 (23) (a) (2) and 90.803 (24) (a) (2).

³³⁶ State v. Townsend, 635 So. 2d 949, 957 (Fla. 1994).

³³⁷ Id.

³³⁸ Id.

³³⁹ 744 So. 2d 1068 (4^th DCA Fla. 1999)

³⁴⁰ Id. at 1070.

³⁴¹ Id.

³⁴² Id.

³⁴³ Id.

³⁴⁴ Id. at 1071.

³⁴⁵ Id. at 1073. Specifically, the court of appeals remanded the case in order that the trial court might determine whether the victim’s out of court statements to the psychologist, not relating to the identity of the perpetrator, were admissible under the medical diagnosis and treatment exception and whether the victim’s out of court statements to her mother were admissible as excited utterances.

³⁴⁶ 635 So 2d 949 (Fla. 1994).

³⁴⁷ Id. at 957-58.

³⁴⁸ Id. at. 958.

³⁴⁹ Id.

³⁵⁰ 643 So. 2d 653 (Fla 2d DCA, 1994).

³⁵¹ Id at. 654.

³⁵² Id.

³⁵³ 625 So. 2d 821 (Fla. 1993).

³⁵⁴ Id. at 826.

³⁵⁵ Id.

³⁵⁶ 748 So. 2d 950 (Fla. 2000).

³⁵⁷ Id. at 953.

³⁵⁸ Id.

³⁵⁹ Id. at 958.

³⁶⁰Id.

³⁶¹ Id.

This Birdsong article was originally published in the Nova Law Review, Volume 26, Number 1.

It teaches Evidence law students about the residual exception to the Federal Rules of Evidence.

Read and learn.

 

 

THE RESIDUAL EXCEPTION TO THE HEARSAY RULE – HAS IT BEEN ABUSED – A SURVEY SINCE THE 1997 AMENDMENT

 

                                                          By: Leonard Birdsong

                                                                        © 2001

                                   

 

 

I

I. INTRODUCTION

 

        In our legal system of trial by jury a good deal of the law of evidence is given to exploring hearsay and its exceptions. The factors upon which the value of testimony depends are the perception, memory, narration and sincerity of the witness.¹ In order to encourage witnesses to put forth their best efforts and to expose inaccuracies that might be present with respect to any of these factors our trial system has developed what is known as the testimonial ideal.  That is, witnesses are required to testify under oath, testify in person, and be subject to cross examination.  The rule against hearsay is designed to insure compliance with these ideals.  When one of them is absent a hearsay objection becomes pertinent.² Hearsay evidence is often characterized as unreliable and untrustworthy.  Nevertheless courts constantly admit hearsay evidence under the numerous exceptions found in the common law and in latter day statutes. Hearsay evidence exhibits a wide range of reliability. The effort to adjust the rules of admissibility of hearsay evidence to variations in reliability has been a major motivating factor in the movement to liberalize evidence law.³

            The Federal Rules of Evidence, adopted in 1975,⁴ for use in the federal courts and adopted by many states have helped liberalize the introduction of trustworthy hearsay evidence at trials.⁵  The Federal Rules of Evidence recognize twenty eight standard exceptions to the hearsay rule⁶.  In addition to those exceptions and the “nonhearsay” exceptions⁷, the Congress in promulgating the Federal Rules, adopted rules 803(24) and 804(b)(5), as residual hearsay exceptions.  Such rules allowed introduction of such hearsay statements not specifically covered by any of the named exceptions but having circumstantial guarantees of trustworthiness if the court determined that certain stated conditions were met.⁸

            It was intended that the residual exceptions would be used sparingly by the courts and only in rare and exceptional circumstances.⁹  The Advisory Committee cautioned that the residual exceptions “do not contemplate an unfettered exercise of judicial discretion, but they do provide for treating new and presently unanticipated situations which demonstrate trustworthiness within the spirit of the specifically stated exceptions”¹⁰

            Of all of the exceptions to the hearsay rule, the residual exceptions have probably generated the greatest amount of controversy.¹¹  One evidence scholar, James Beaver, who has examined the use of the residual exceptions fears that the residual exceptions will swallow the hearsay rule.¹²   Another scholar, Thomas Black, believes that  the residual exceptions may be used in such a manner in the federal courts as to abuse traditional concepts of evidence.¹³ As this article will demonstrate such fears are totally unfound.

              In 1997, the residual exceptions of Rules 803(24) and 804(b)(5), were amended and cast in to one new rule, Federal Rule of Evidence 807.¹⁴  The amended rule provides:

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) 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 (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.  However, a statement may not be admitted under this exception unless 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, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.¹⁵

 

 

 

            In amending the residual exception the Advisory Committee noted that “the contents of Rule 803(24) and Rule 804(b)(5) have been combined and transferred to the new Rule 807.  This was done to facilitate additions to Rules 803 and 804.  No change in meaning is intended.”¹⁶

            Prior to the 1997, amendment the aforementioned scholar, James Beaver, surveyed the use of the residual exceptions and found that between 1975 and 1993, the residual exceptions and their state equivalents were reported in more than 140 federal cases and in more than ninety state cases¹⁷.  He concludes that such figures suggest that the residual exceptions were being used more than in rare and exceptional circumstances.¹⁸  He, also, maintained that the residual exceptions weaken the hearsay rule and cautioned states to refuse to adopt the residuals on the ground that they were undesirable and unnecessary.¹⁹ Another scholar, John Strong, the general editor of McCormick On Evidence  believes resort to the exception has been substantial and is surprised by its prominent use by prosecutors in federal courts.²⁰

            A review of recent cases reveals that the admission of residual hearsay pursuant to the exception is being used sparingly and only after a good deal of analysis by both the federal courts and by the courts of states which allow the exception.²¹  In Beaver’s survey he found that the residual exception was reported in 140 federal cases and ninety state cases.  He believes that this was abuse of the rule and that we better be careful.  However, such analysis, relying solely on the number of reported cases, is flawed.  Everything is relative.  The use of the residual exception as reported in 140 cases over a twenty three year period does not seem astounding given there are thirteen federal Circuit Courts of appeals in the country.  Nor does it seem astounding that the residual exception was reported in ninety state cases during the same period.  We have fifty state court systems many with a two tier appellate court system consisting of a court of appeal and a higher state supreme court.

            If Beaver had analyzed exactly how the residual exception was used in each case he would have found no abuse.   The purpose of this article is to survey and analyze the pertinent reported federal and state decisions addressing admission of residual hearsay since the 1997 amendment to the residual exception. Such survey and analysis reveals that there is little likelihood that the hearsay rule will be swallowed by the residual exception.  A secondary purpose of this article is to provide civil trial lawyers, defense attorneys, prosecutors and judges examples of how the circumstantial guarantees of trustworthiness of the residual exception have been argued and analyzed in federal and state courts in recent years.

           

II. HEARSAY, THE FEDERAL RULES OF EVIDENCE, AND THE STATES

            In order to understand the residual exception one must appreciate the definition of hearsay under the Federal Rules.  The rules first define a statement as “an oral or written assertion or nonverbal conduct of person if it is intended by the person as a statement.”²² Thus, hearsay, under the rules, is “a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”²³The definition is an affirmative one which says that an out of court assertion offered to prove the truth of the matter asserted is hearsay.²⁴ Exceptions to the hearsay rule usually are justified on the ground that evidence meeting the requirements of the exception possesses special reliability and often special need, such as the unavailability of the declarant²⁵. That is, there is an objective guaranty of trustworthiness to such statements.²⁶

            The often cited examples of exceptions that exhibit such guarantees of trustworthiness are the excited utterance,²⁷ statements for purposes of medical diagnosis,²⁸ records of regularly conducted activity, ²⁹statements in ancient documents,³⁰ the dying declaration,³¹ and, of course, statements against interest.³²

            Forty one states, Puerto Rico, and the military have adopted the Federal Rules of Evidence.³³  The majority of these states adopted rules of evidence based on the final Federal Rules of Evidence.³⁴  As the Federal Rules of Evidence are amended some states also promptly amend their corresponding rules to maintain similarity with the federal rules.³⁵ The following states have not adopted rules of evidence based on the Federal Rules: California, Connecticut, the District of Columbia, Georgia, Illinois, Kansas, Massachusetts, Missouri, New York, Virginia and the Virgin Islands.³⁶

            The forty one states, Puerto Rico, and the military that have adopted the Federal Rules have all adopted rules similar to the hearsay rule of 801.³⁷  However, not all of these states have adopted the residual exceptions.³⁸  Of the states which have adopted such residual exceptions, Colorado appears to be the only state to have already amended their rules to combine the 803(24) and 804(b)(5) into one Rule 807 as have the Federal Rules of Evidence. ³⁹ The states which have not adopted a residual exception are Alabama, Florida, Kentucky, Maine, New Jersey, Ohio, South Carolina, Tennessee, Texas, Vermont, and Washington.⁴⁰ The state of Louisiana limits its residual exception to civil cases⁴¹.  The states of Nevada⁴² and Wisconsin omit the notice requirement of the Federal Rule.⁴³

            Although Florida has not adopted a residual exception akin to Rule 807, it has two sections of its evidence code⁴⁴ which speak to the kinds of circumstances where residual hearsay exceptions often are applied. These may be thought of as “quasi residual” exceptions. Section 90.803(23) allows the use of out of court statements of a child 11 years old or less describing child abuse, neglect , or sexual abuse against the child,⁴⁵ after the court holds a hearing to determine reliability of such statements.⁴⁶ The statute is applicable whether the child is available or unavailable to testify.⁴⁷ If the child is unavailable to testify and the statements are deemed to be reliable by the court there must be other corroborating evidence of the offense before such statement may be used.⁴⁸ There is also a ten day notice requirement that must be given to a defendant in a criminal case.⁴⁹ Finally, the court, under this statute must make specific findings of fact on the record as to the basis for its ruling to admit or exclude the statements⁵⁰. Section 90.803(24) of Florida’s law is identical, except that it applies to elderly or disabled adults.⁵¹

            Florida promulgated such hearsay exceptions for children in 1985.⁵²  The Florida exception was expanded to the elderly in 1995.⁵³ However, it was not until after 1990 that a number of other states were confronted with the need for such exceptions.  This was as a result of the Supreme Court’s ruling in Idaho v. Wright.⁵⁴  In Wright, a child sexual abuse case, the Court was required to decide whether the admission at trial of certain hearsay statements admitted under Idaho’s residual exception violated the defendant’s rights under the Confrontation Clause of the Sixth Amendment.  The hearsay statements were made by a child declarant to an examining pediatrician.  At trial the child was unavailable as a witness.  The pediatrician testified as to the child’s statements concerning the abuse.  The Supreme Court affirmed the Idaho Supreme Court which ruled that the defendant’s right to confrontation had been denied by admission of the testimony.⁵⁵ The Court held that the State of Idaho could not use other evidence corroborating the truth of such a hearsay statement to support a finding that the statement bore particularized guarantees of trustworthiness.⁵⁶  In other words, to be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.⁵⁷  The Court in Wright declined to endorse a mechanical test for determining “particularized guarantees of trustworthiness;”⁵⁸ however, the Court alluded to a number of factors that might make the hearsay statements made by a child in an abuse case reliable, including spontaneity and consistent repetition, lack of motive to fabricate, mental state of the declarant, and use of terminology unexpected of a child of similar age.⁵⁹

 

            III.  AN ANALYTICAL FRAMEWORK  FOR  EXAMINING

                 THE RESIDUAL EXCEPTION

A. APPROPRIATE INDICIA OF RELIABILITY

            All  hearsay exceptions must exhibit an element of trustworthiness which derives from certain  appropriate indicia of reliability.  One often cited example of such trustworthy hearsay exception is the dying declaration.⁶⁰  It has long been considered reliable that a man would not go to his death with a lie on his lips.  Obviously,  fear of retribution in the afterlife provides the appropriate indicia of reliability to make the dying declaration trustworthy.  So how do we find the appropriate indicia in the residual hearsay exception? 

            Rule 807 provides that a statement not specifically covered by 803 or 804, but having “equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule….”  In applying the residual exception then, the most important issue is whether such statement does offer “equivalent circumstantial guarantees of trustworthiness” to those found in other specific hearsay exceptions.⁶¹  The factors supporting trustworthiness are varied but a few recurring factors may be pertinent to the determination of admissibility.  Among them would be: whether the declarant had a motivation to speak truthfully;⁶² the spontaneity of the statement;⁶³ the time lapse between the event and the statement;⁶⁴ whether the declarant was under oath;⁶⁵ whether declarant had been cross examined;⁶⁶ whether the declarant has recanted or reaffirmed the statement;⁶⁷ and whether the declarant’s first hand knowledge is clearly demonstrated.⁶⁸  A court may, also, consider whether such out of court statement was corroborated by the declarant who was available and testified at trial of the case.⁶⁹ Further, a court might look to circumstances surrounding the extrajudicial statement to determine trustworthiness.⁷⁰  In an effort to determine whether circumstantial guarantees of trustworthiness exist a court may look to matters that occur at trial; said court may look to extrinsic corroboration of the statement; a court may look to surrounding circumstances concerning the statement; or the court may look to all of these to determine trustworthiness.⁷¹

            Beaver is troubled by this approach.  He complains that with respect to the residual exception “a court need not be consistent in its standards.  The standard used can very easily be changed to meet the necessities of current political expediency or judicial whim. We have a container into which anything can be poured,”⁷² he contends.

            Such  criticism of the standards for allowing statements pursuant to the residual exception is flaccid. The appropriate position with respect to the question of standards is that espoused by Fenner who maintains that without some residual exception, a statutory set of rules of evidence simply would not work.⁷³ The pressure to admit hearsay evidence that does not fall under the fixed, specific exceptions would lead to one of two things: the evidence would not be admitted and injustice would be done, or one of the other exceptions would be misread to say that it does cover the evidence in question,⁷⁴ We should always remember that the Federal Rules are to be construed to secure fairness in administration and help to the development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.⁷⁵

            The standards for determining the circumstantial guarantees of trustworthiness  of residual statements must vary. In the cases reviewed herein decided since the 1997 amendment to Rule 807 we will find courts that admit residual hearsay because there is little likelihood of fabrication or inaccuracies with respect to the statements to admitted;⁷⁶ we will find a court that admits such out of court statements on the ground that they were business records produced by a defendant against his interest in litigation and thus trustworthy; ⁷⁷

            In the criminal area we will find courts that undertake extensive analysis to determine whether the residual hearsay statements were sufficiently detailed that they would have been difficult to fabricate, whether there was a lack of evidence of coercion, whether the declarants had personal knowledge of the events, a determination of how soon the statements were made after the event.⁷⁸ Other courts will look to whether the statements sought to be admitted pursuant to the residual exception were made under oath and subject to the penalty of perjury, whether such statements had been made voluntarily, and whether they contradicted previous statements by the declarants.⁷⁹ We will also see a court in criminal case which will examine whether the declarant was offered leniency in exchange for his statement, will examine whether the declarant attempted to shift blame from himself to the accused, will examine whether the declarant took full responsibility for his role in the offense, examine whether the declarant was caught “red-handed” and merely tried to share his blame by implicating another, and determine whether the declarant was given his Miranda rights.⁸⁰

            As Beaver notes, the courts need not be consistent in its use of standards.⁸¹ What is most important with respect to any residual exception analysis is the determination that such evidence, which might meet the standard of circumstantial guarantees of trustworthiness, is  evidence  offered as evidence of a material fact; that the evidence is the most probative evidence available on the point for which it is offered, that the interests of justice will be served by admitting the evidence, and whether there was notice of the evidence.⁸²

            One must bear this analytical framework in mind as we survey the recent cases in an effort to determine whether the residual hearsay rule is being abused.

 

            B.  NOTICE

            The notice requirement of Rule 807 is very important. What does notice mean? When and how must notice be given? The residual exception is not available unless offering counsel gives opposing counsel advance notice of his or her intention to offer the out of court statement, and the particulars of the statement, including the name and address of the of the out of court declarant.⁸³

            Rule 807 does not require pretrial notice of an intention to use Rule 807.  All it requires is notice of an intention to offer the particular statements; not notice of an intention to use any particular hearsay exception.⁸⁴ Once counsel has notified opposing counsel of an intention to offer the statement in question, then it can be offered under Rule 807.⁸⁵ The notice may be formal or less formal. Fenner reminds us the pretrial notice may be a document filed with court styled “Notice of Intention to Use Rule 807 Evidence,” or it may be a letter sent to opposing counsel stating an intention to introduce particular statements, including the names and addresses of the proposed declarants.⁸⁶

            The timing of the notice has been problematic.  Both Fenner and Beaver note that prior to the 1997, amendment some courts interpreted the notice requirement more in accord with the spirit of the law than with the letter of the law.  This often creates inconsistency in application of the notice requirement.⁸⁷  The rule provides that notice must be “sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the evidence.”⁸⁸ Fenner claims that some courts stress the “fair opportunity” part of the notice requirement over the “in advance of the trial or hearing” part.  He notes that one influential court has said that in cases where the need to use this exception does not become apparent until after the trial has begun, midtrial notice given enough in advance of the actual use of the evidence can satisfy the rule’s pretrial notice requirement.⁸⁹

            The cases surveyed herein reveal that variations of the flexible approach to notice requirement predominate.  Although this does not appear consistent with the plain meaning of the rule, we shall see that the interests of justice require such flexibility.  Even less formal notice is better than no notice.

            With this analytical framework in mind with respect to appropriate indicia of reliability and notice let us survey the recent cases relying on the residual exception to determine whether the rule is being abused.

 

IV. RULE 807 CASES IN THE FEDERAL COURTS

A. CIVIL CASES

            Since the 1997 amendment to the Federal Rules the residual exception was cited as an issue in seven civil cases in the federal courts. The cases come from the Second and Eleventh Circuit Courts of Appeal, federal district courts in the Eastern District of New York, and the district court for Puerto Rico. It will be clear from a review of these civil cases that judges are not abusing their authority with respect admitting unreliable hearsay pursuant to the residual exception.

            The Eleventh Circuit Court of Appeals gave short shrift to a plaintiff’s argument that the residual exception of Rule 807 should be admissible to allow hearsay of a dead witness to help substantiate her claim of copyright infringement. In  Herzog v. Castle Rock Entertainment⁹⁰ the plaintiff, Herzog, brought a copyright action against  the writer, director, producer, and distributor of the motion picture “Lone Star.” Plaintiff alleged that defendants infringed her copyright for a screenplay she had written entitled “Concealed.”⁹¹ The District Court granted defendant’s motion for summary judgment and Herzog appealed.  The Eleventh Circuit, relying on the district court’s opinion upheld the grant of summary judgment on the grounds that Herzog had failed to establish that Sayles, the writer director of Lone Star had had a reasonable opportunity to view her screen play and; the motion picture and screenplay were not substantially similar.⁹²

            Herzog’s burden was to show that her screenplay was a copyrighted work and that Sayles had copied it.  Herzog submitted a certificate of copyright for her screenplay to the court. The second requirement, proof of copying, she attempted to prove circumstantially by demonstrating that the person who copied the work had access to her copyrighted screenplay.⁹³

             Herzog averred that she had written the screenplay as a requirement for her Master Degree in film studies at the University of Miami.  She had given her screenplay to Cosford, one of her professors for review.  He had never returned it to her.⁹⁴  After “Lone Star” was released she learned that Sayles was an acquaintance of Cosford and that Sayles and Cosford had met for lunch in Miami during the time Cosford had her screenplay.⁹⁵  Herzog theorized that Cosford had shown Sayles her work.  By the time of the law suit Cosford had died and was, thus, unavailable to testify as to whether he had shown Sayles the screenplay.⁹⁶

            Herzog sought to introduce, under Rule 807, hearsay statements of Allegro, another Professor at the University of Miami.⁹⁷  Allegro testified at deposition that Cosford told him that he was reading Herzog’s screenplay and he found it interesting.⁹⁸ Allegro, further, testified that during this same time period Sayles was in Miami and Cosford came out of his office at the university and announced to Allegro that he was on his way to his home to pick up Sayles to take him to lunch.⁹⁹  Allegro, also, testified that he only inferred from Cosford’s statements that he was picking up Sayles at his home and that he had never actually saw Sayles and Cosford together.¹⁰⁰

            Courts cannot properly consider hearsay evidence in ruling on motions for summary judgement.¹⁰¹  Defendants argued that the proffered testimony of Allegro would be inadmissible hearsay. ¹⁰²  There were no equivalent guarantees of trustworthiness found in those conversations. The Eleventh Circuit Court agreed on the ground that Rule 807 requires the equivalent circumstantial guarantees of trustworthiness covered by exceptions in Rule 803 and Rule 804. The Court undertook the requisite analysis for circumstantial guarantees of trustworthiness and found that the conversations had taken place five years earlier and Allegro was vague and not precise or knowledgeable in his memory of the conversations.¹⁰³  This was hearsay of the worst kind.  The court found that even it such hearsay was admissible to show that Cosford had a copy of Herzog’s screenplay and that Sayles had stayed at Cosford’s home in 1993, said evidence did not establish that (1)Cosford had a copy of the screenplay with him when he met Sayles for lunch and that he allowed Sayles to see it and (2) that Sayles was not truthful when he averred he  had never heard of Herzog’s composition.¹⁰⁴  Also, there was no allegation that Cosford previously contributed creative ideas or material to Sayles.¹⁰⁵

            The hearsay was not admitted despite proper pretrial notice be given under the residual exception. No appropriate indicia of reliability could be found on the facts of the case. The Eleventh Circuit did not abuse its powers by allowing the admission of unreliable hearsay pursuant to the residual exception in Herzog.

            In Schering v. Pfizer¹⁰⁶ the Second Circuit found that although certain surveys offered by plaintiffs in a false advertising case called for statements concerning memory, this did not automatically preclude their admission under the residual exception of Rule 807.¹⁰⁷ The plaintiff, Schering, was a pharmaceutical company that produces Claritin, a prescription antihistamine.  UCB, a European pharmaceutical company, developed a competing product called Zyrtec.  UCB licensed Pfizer, a Delaware corporation to promote Zyrtec in the United States.¹⁰⁸ In 1996 Schering brought action against UCB and Pfizer alleging false advertising with respect to Zyrtec in violation of Lanham Act and a prior settlement agreement between the parties.¹⁰⁹

             At a 1998, hearing on a preliminary injunction plaintiff Schering sought to introduce five surveys concerning the marketing and sale of Zyrtec to doctors. Pfizer responded to the motion on grounds that the surveys were inadmissible as hearsay.¹¹⁰ The district court agreed and issued a written opinion disallowing the surveys for any purpose.  The trial court, also, denied the injunction.¹¹¹ Schering appealed.  The Second Circuit found that the surveys should have been allowed, vacated the judgment, and remanded the case for further hearing concerning the surveys concerning memory statements.¹¹²

            Five surveys Schering had sought to introduce called for more information than the 803(3)¹¹³ exception to the hearsay rule would allow.  The court found that those surveys went beyond the state of mind of those surveyed and called for memory or belief to prove the facts remembered or believed¹¹⁴. However, Pfizer had also sought to introduce the surveys under the residual hearsay exception.  The court examined the surveys and Rule 807 and found that the lower court had abused its discretion by not allowing admission of the surveys pursuant to the residual exception.  The Second Circuit held that the trial court had been in error to rule against the use of out-of-court memory statements to prove facts remembered.¹¹⁵

             The Court reminded us that “unlike Rule 803(3), which explicitly excludes from its purview memory statements offered to establish the facts remembered, the residual hearsay rule contains no such limitation.  There is a reason for this difference.  Almost any statement used to describe events that a speaker has experienced in the past can be characterized as a ‘memory,’ which is a presently-existing state of mind when it is conveyed. If such statements were admissible under Rule 803(3) to prove the fact remembered, parties could thus offer hearsay to establish almost any past fact, a result that would indeed mark the ‘the virtual destruction of the hearsay rule’…The residual hearsay rule, by contrast, escapes this problem by setting forth its own set of requirements, which included necessity and trustworthiness before it will allow for a statement’s admission.”¹¹⁶ The court held that memory surveys, in principle, may have greater circumstantial guarantees of trustworthiness than many other traditional exceptions to the hearsay rule, but that it was the methodological validity of the survey that had to be examined before a guaranty of trustworthiness could be assured.¹¹⁷

            In Schering the court found that there was long standing notice of the intent to introduce the surveys.  The Court, further, found that the surveys were trustworthy and necessary and concluded that “In the context of survey evidence, the interests of justice and the general purposes of the rules of evidence are generally best served by the admission of the surveys that meet these two criteria.¹¹⁸  A review of the case shows that the residual exception is not being abused in the Second Circuit, but instead, the exception is being put to a strong analytical process as to its application.

            In Rotolo v. Digital,¹¹⁹ the Second Circuit overturned a trial court judgment on the ground that the notice requirement of 807¹²⁰ had not been met. In the case plaintiff Rotolo brought a products liability case against Digital, alleging that she suffered repetitive stress injuries resulting from the use of their computer keyboard.¹²¹ Plaintiff presented evidence of her injuries and presented evidence from medical witnesses to bolster her claim.¹²² Rotolo’s attorneys also came into possession of a videotape made by Apple Computer Corporation.  The tape which was received in evidence contained the voice and images of three Apple consultants who asserted and emphasized  the existence of a possible causal connection between computer keyboard use and repetitive stress injury. Digital objected to the introduction of the videotape as hearsay.¹²³

            The Second Circuit agreed that the videotape contained inadmissible hearsay and vacated judgment and remanded the case.¹²⁴ The Court found that the consultants that appeared in the videotape, two identified as physicians and one as an engineer were unsworn witnesses, whose qualifications were not expounded upon or subjected to cross-examination.   Rotolo’s counsel had informed the trial court that he was not offering the videotape because it was publicly available but offered it “as appropriate and compelling state of the art proof as to what could be known.”¹²⁵ The Court held it was error to admit the report. Before a defendant who has never seen an unpublished report that is not part of the published literature can be said to have non-hearsay notice, it must be shown that the defendant “was at least inferentially put on notice by the report.”¹²⁶  Digital presented proof that it had no such notice of the report or that they should have seen it as a part of the published literature on the industry.¹²⁷

            The court held a rule 807 residual exception inapplicable to the videotape evidence because the advance notice of intent to use that section was not used.¹²⁸  The Court further found that the district court…”misadvised the jury that it might consider the videotape evidence of ‘what might have been made available to these defendants [sic] and what was in the field to show what their state of mind was or should have been….Simply put, the Apple videotape was inadmissible hearsay”.¹²⁹ No notice no residual exception.  No abuse there.

            Rotolo v. Digital was decided on July 24, 1998.  A month earlier the same company, Digital, had not fared as well in a similar case heard in the  District Court of the Eastern District of New York.  On June 8, 1998, plaintiffs prevailed in the case of Gonzalez v. Digital.¹³⁰  Much of that case concerned the Rule 807 residual exception.  Although notice was also at issue,  the court in Gonzalez reached a result opposite that of the court in Rotolo.

            In Gonzalez a number of plaintiffs had sued Digital claiming that their upper body, arm, or hand problems had been caused by repeated use of Digital’s computer keyboards and that they had not been properly warned by Digital of the possibility of such injury.¹³¹ Plaintiffs sought to introduce documents and two videotapes, one produced by IBM and the other produced by Apple Computer which addressed the comfort disorders of keyboard users.  Digital moved to exclude such evidence, alleging among other reasons, that it was hearsay.¹³²  The district court found that the proffered evidence was relevant to the proceedings on the theory that evidence of the current state of mind of large producers in this industry was relevant.¹³³  It allowed the inference that given the then state of the art, members of the industry as a whole had, or should have had, the same “state of mind” with respect to possible users that needed to be considered by each of the manufactures even though they were operating separately.¹³⁴  Since Digital had a duty to keep abreast of scientific knowledge, discoveries and advances it was presumed to know what was imparted thereby.¹³⁵ Thus the documents and videos were deemed relevant.

            The court ruled that with respect to the hearsay objection to the evidence that such documents would be admitted pursuant to the residual exception.¹³⁶  The Court specifically found that the notice requirement of 807 had been met for Digital had notice for an extended time – a whole year and one half prior to trial –  that the evidence had been proposed.¹³⁷  The court also found that the proffered evidence offered evidence of a material fact and the internal materials were highly probative.¹³⁸  The court further found that the general interests of justice and the standards of trustworthiness had been met in the case.  The court maintained that the fear of fabrication or of inaccuracies inherent in much hearsay was unfounded because these videos had been created for legitimate business reasons and were less likely to have been fabricated than would testimony of a live witness.¹³⁹  The court also found that with respect to inaccuracies, the videos were more likely to be more accurate than a live witnesses because they were created internally and with great care.¹⁴⁰  The court did not find the inability to cross-examine with respect of the videotapes compelling because Digital could call its own experts or those who created the videotapes to refute contentions of notice.¹⁴¹

            The court allowed admission of the documents and videotapes under the residual rule to show the state of mind of other producers in the industry on the issue of notice.¹⁴² Though notice was informal in this case, the court found that a proposal made by plaintiffs to use the evidence a year and a half prior to trial met the notice requirement.  This stands in stark contrast to Rotolo where there was no advance notice of the intent to use the evidence. Again, in Gonzalez, the district court followed a well reasoned analytical framework to determine whether the evidence bore adequate circumstantial guarantees of trustworthiness and that there was proper notice.  Such analytical approach to admitting evidence pursuant to the residual  exception should put to rest fears by Beaver and others  that the residual exception will swallow the hearsay rule.

 

            In Vasquez v. National Car Rental,¹⁴³ the district court in Puerto Rico held that a statement by a driver in an auto accident was not admissible under the Rule 807 residual exception.  Mr. and Mrs. Lopez had rented a car from defendant at Puerto Rico’s international airport on December 26, 1997. Shortly thereafter they were in an auto accident with another vehicle driven by Gonzalez.  Mr. Lopez, the driver of the rented vehicle died several days later as a result of his injuries.  Mrs. Lopez, the passenger was, also, injured and subsequently died.  Suit was brought pursuant to a diversity action by Mrs. Lopez’s daughters, the Vazquezs.¹⁴⁴  Plaintiffs sued National because under Puerto Rio Law the owner of a leased vehicle is accountable for its lessee’s negligence.¹⁴⁵

            National sought admission into evidence of certain portions of Ms. Vazquez’s deposition testimony in which she described Mr. Lopez’s utterances right after the accident.  According to plaintiff, Vasquez, her mother  told her that immediately after the accident Mr. Lopez uttered to her the words “What hit us?”¹⁴⁶  National offered this evidence because it cast doubt as to who hit whom. National argued that because Mr. Lopez did not explicitedly say that he ran a red light or was negligent in his driving there was uncertainty as to whether he was negligent.¹⁴⁷ Under Puerto Rico Law defendant’s liability hinged on the driver’s (i.e. lessees’ liability).¹⁴⁸  If National could prove that Mr. Lopez was not driving negligently defendant would not be liable. National acknowledged that such statement would be hearsay but sought to have it admitted under the residual hearsay rule.¹⁴⁹

            The court reviewed Rule 807 and the facts and found that there was adequate notice of intent to use the statements.  Yet, the court did not allow the hearsay evidence on the grounds that the evidence fell below the threshold of trustworthiness required by the Rule.  The court found that even though in the hospital, the circumstances that surrounded Mr. Lopez’s remarks did not assure the Court that he was under a condition that would still his capacity of reflection or that he was under any pressure to tell the truth.¹⁵⁰  The Court found further that defendant had failed to prove that Mr. Lopez had reliable knowledge of the events that transpired on the night of the accident.  Ms. Vazquez in her deposition testified that Mr. Lopez was not clear as to the events that transpired, and that he really did not recall what happened.¹⁵¹  The Court disallowed the evidence and said it could not rely on an individual’s account of an event if that individual acknowledged that he did not recall the specifics of the event,¹⁵² as had Mr. Lopez.

            Mr. Lopez’s lack of recall would not support a finding for the court that would guarantee a finding  of trustworthiness to his statements.  In accord with our analytical framework the court found  no support to substantiate appropriate indicia of reliability for his statements. To keep such evidence out was the correct decision.  Here the hearsay rule prevailed. Critics have little to fear about the use of the residual exception when a court explains it’s analysis of the circumstantial guarantees of trustworthiness as in Vasquez. The hearsay rule prevails despite the residual exception.

            In the case of Chase Manhattan Bank v. Traffic Stream (BVI) Infrastructure Limited,¹⁵³ the court allowed admission, pursuant to the residual exception, into evidence of a news article that had appeared in a Chinese newspaper. In 1998 Chase Bank, acting as a trustee and Traffic Stream had entered into an indenture agreement in which Traffic Stream issued secured notes to finance a business venture involving the construction of toll roads in China.¹⁵⁴  In 1999, plaintiff Chase commenced litigation contending that Traffic Stream had defaulted on payment. Chase sought summary Judgment.  Defendant Traffic admitted default but argued that its default should be excused pursuant to the contract doctrine of impossibility of performance¹⁵⁵.  Traffic Stream contended that a change in Chinese policy delayed recoupment of money from the toll road projects, making it impossible for them to fulfill their obligation under the indenture.¹⁵⁶

            The facts of the case reveal that in the wake of the 1997 Asian financial crisis, the Chinese government had taken steps to strengthen its supervision of disbursement of foreign exchange involving Chinese companies doing business with foreign partners.¹⁵⁷ On September 13, 1998, the Chinese State Administration of Foreign Exchange gave notice of its change in policy.  The notice was a confidential document of the Chinese government that had not been publicly released.¹⁵⁸  However, news of the notice appeared in the People’s Daily, the official newspaper of the government on September 18, 1998.¹⁵⁹  Traffic Stream maintained that it was this change in foreign exchange supervision that made it impossible for them to perform.

            Chase objected to the introduction of the newspaper article on grounds that it was hearsay.¹⁶⁰  The court agreed that the Chinese newspaper article was hearsay but found the article admissible pursuant to the residual exception of Rule 807. The court found that Traffic Stream had given chase adequate notice of its intention to introduce the article.¹⁶¹  Perhaps, more importantly, the court found the newspaper article had been offered as evidence of a material fact, namely a change in Chinese policy which could have rendered Traffic Stream’ s performance under the indenture impossible.¹⁶²  The court, also, found that the article was the most probative evidence of the notice of change of policy that Traffic Stream could reasonably procure, because the notice itself had not been publicly released by the Chinese government.¹⁶³  Similarly, the court found because the notice itself was unavailable, the interests of justice would be served by the admission of the newspaper article.¹⁶⁴  The court further found with respect to Rule 807 the People’s Daily newspaper article had a sufficient guarantee of trustworthiness in that was published by the Chinese Communist Party Central Commission and was deemed to be authoritative and representative of the official opinion of the Chinese government.¹⁶⁵

            Although the article was admitted as evidence, Chase was ultimately granted summary judgment on the claim.¹⁶⁶  Nevertheless, the court gave a well reasoned analysis as to why the evidence should be found admissible pursuant to the residual exception. There had been adequate notice of the intent to use the newspaper article. And. There was a thoroughgoing analysis of the circumstantial guarantees of trustworthiness that surrounded the introduction of the article.  There was no abuse to the  traditional hearsay rule in this case.

            In John Paul Mitchell Systems  v. Quality King,¹⁶⁷ the residual exception was used to allow introduction of certain business records at a hearing on an injunction.  In this case John Paul Mitchell sought a preliminary injunction restraining the distributor Quality King from selling over a million dollars of Paul Mitchell hair care products.¹⁶⁸  Allegedly these products had traveled to China for distribution, but were diverted to Holland and then back to Quality King’s Long Island, New York warehouse.  John Paul Mitchell sought an injunction against Quality King in order to prevent irreparable damage to its exclusive salon only distribution policy.¹⁶⁹ In order to prove its case John Paul Mitchell sought introduction of business records of the company which it arranged to sell its products in China.  This was the firm, China Marketing & Distribution (CDM), a company John Paul found was defrauding it by diverting products from the Chinese market where it would be sold only in salons to other wholesalers who intended sale to direct retailers.¹⁷⁰  Quality King objected to introduction of the CDM business records on the ground that they were not authenticated.¹⁷¹

            The court found, pursuant to Rule 901(b)(1),¹⁷² that the document authentication requirement in this case was satisfied by the document’s form and content, taken together with other circumstances that indicated reliability of the documents.¹⁷³ Thus authenticated, the court found the documents admissible pursuant to  the residual exception because the records were particularly trustworthy.  In its analysis the court found that the trustworthiness of the documents was established by the facts that they were produced by the president of CDM against his interests in the litigation.¹⁷⁴ The court also found that the issue of whether the Paul Mitchell product was sold and shipped to Quality King was material to the litigation, and the documents were probative of the fact that CDM believed the product was shipped from its warehouse in China to Rotterdam.¹⁷⁵ The court further found that the documents were the most probative evidence available of the route the goods followed.¹⁷⁶  The court sound further still that Quality King had sufficient notice of the documents, as demonstrated by Quality King’s motion in limine to exclude them.¹⁷⁷  In the final analysis, the court found that it was in the best interests of justice to admit the documents.¹⁷⁸

            Although the documents were admitted pursuant to the residual exception John Paul Mitchell’s motion for preliminary injunction was denied.  The court found that it did not have the power to issue an injunction on a replevin claim.¹⁷⁹  Again, there appeared to be no abuse by the court of the residual exception in this case. 

            The foregoing has been a survey of the federal civil cases found since the 1997 amendment of Rule 807.  It does not appear from a review of these cases that there should be fear that the use of the residual exception is being abused.    In Herzog and Vasquez the courts did not allow statements pursuant to the exception because they could find no circumstantial guarantees of trustworthiness to the statements in question.  In Rotolo the statements were disallowed by the appeals court because adequate notice of the intended use of the evidence had not been given prior to trial by the plaintiffs. In Schering, Gonzalez, Chase Bank and John Paul Mitchell both the notice requirements and the requirement of circumstantial guarantees of trustworthiness were found to be adequate.  However, admission of such hearsay pursuant to the residual exception seldom determined the ultimate outcome of the case.

             Let us now turn to the federal criminal cases involving the residual exception since the 1997 amendment.  We will see that the analytical framework is just as important as in the civil cases, if not more so.

 

B. CRIMINAL CASES

            Since the 1997 Amendment the residual exception has been reported in federal criminal cases in numbers that are small. No more than eight such cases have been found.  This is approximately equal to the number of civil cases in which the exception was either mentioned or reported in federal civil cases during the same time period.  Although anecdotal, this provides further evidence that the residual exception is not being abused by the federal courts as a way of allowing inadmissible hearsay into evidence. The cases reported on herein come to us from the Second, Fourth, Fifth, Eighth and Ninth Circuit courts of appeals.

            The introduction of hearsay statements in the context of criminal cases, whether federal or state must be assessed in the light of defendant’s right to confrontation under the Sixth Amendment.¹⁸⁰  The Confrontation clause does not operate as an absolute ban on hearsay evidence.¹⁸¹  If the declarant is unavailable and the statement bears adequate indicia of reliability hearsay declarations may be received into evidence without violating a defendant’s right to confrontation.¹⁸²   The indicia of reliability requirement can be met either of two ways: (1) where the hearsay statement falls within a firmly rooted hearsay exception; or (2) where it is supported by a showing of particularized guarantees of trustworthiness.¹⁸³

            In U.S. v. Sanchez-Lima,¹⁸⁴the Ninth Circuit reversed the conviction of Sanchez-Lima for assault on a federal officer and determined that evidence he sought to admit at trial under the residual exception should have been admitted.  In 1996, Sanchez-Lima, an alien, and others illegally entering the U.S. from Mexico were arrested two miles east of the Otay Mesa port of entry by border Patrol Agents.¹⁸⁵  At the time of his apprehension Sanchez-Lima struck an agent with a rock. Defendant was arrested for assault on a federal officer in violation of 18 U.S. C.  §111.¹⁸⁶  At trial Sanchez-Lima asserted a self defense claim alleging he had been pistol whipped by the federal officer before striking him.¹⁸⁷

            In all, the Border Patrol agents apprehended twenty-two aliens that night.  The Border patrol and the FBI interviewed and videotaped all of these aliens the night of their apprehension.  At trial Sanchez-Lima alleged that these interviews contained evidence in support his self defense theory. The remaining aliens were deported on May 29, 1996.¹⁸⁸ The trial court did not allow admission of the videotaped statements.

            On appeal Sanchez-Lima asserted that the failure to admit the videotaped interviews pursuant to the residual exception denied him his Sixth Amendment right to present a defense.  The Ninth Circuit agreed.¹⁸⁹  That Court reviewed Rule 807 and determined that the videotaped statements contained circumstantial guarantees of trustworthiness and met the other criteria of the rule.  The government had adequate notice of the intended use of the evidence. The Court found the statements were trustworthy because the declarants statements (1) were under oath and subject to the penalty of perjury; (2) the statements were voluntary;(3) the statements were based on facts within their own personal knowledge; (4) the statements did not contradict any previous statements to government agents or defense investigators; and (5) the testimony was preserved on videotape for the jurors to view their demeanor.¹⁹⁰  The Court also found that the government had the opportunity to develop the testimony of these witnesses and had notice of the videotapes.¹⁹¹  The Court further found that the videotaped statements constituted evidence of a material fact regarding Sanchez-Lima’s self defense theory. Finally, the Court found that these statements were more probative than any other evidence which could be procured by reasonable efforts.¹⁹²

            In refusing to admit the sworn videotaped statements the district court effectively prevented Sanchez-Lima from exercising his Sixth Amendment right to present a defense.  The decision appears well reasoned and does no abuse to the hearsay rule.

            In U.S. v. Bryce,¹⁹³ the Second Circuit reviewed Bryce’s convictions for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine. The convictions grew out of law enforcement surveillance of persons suspected of narcotics trafficking.¹⁹⁴  Agents intercepted and recorded seven telephone conversations between Bryce and his co-defendant Johnson and one conversation between Johnson and another individual named Gomez.¹⁹⁵

            During the Bryce and Johnson conversations Bryce arranged to sell cocaine to Johnson.  Johnson, in turn telephoned Gomez and informed him that Bryce was selling cocaine.¹⁹⁶  Johnson and Gomez expressed concern during the conversation that the price quoted would depress the price in other transactions.  Nevertheless, after discussing matters with Gomez Johnson called Bryce back and said he would buy two kilograms of cocaine.¹⁹⁷  Johnson and Bryce agreed to meet in fifteen minutes.  The meeting never took place, because Bryce called Johnson several hours later to say he had only one left. Johnson pleaded with Bryce to sell him the one kilogram.¹⁹⁸  Bryce agreed and they arranged to meet later the day.  This meeting never happened because Johnson called Bryce five days later and asked if he still had the cocaine.¹⁹⁹  Bryce indicated that he did and they agreed to meet.  Several days later Johnson was arrested.  Soon thereafter, Bryce was also arrested.²⁰⁰ No evidence of the cocaine itself was presented at trial.

            On appeal Bryce challenged his conviction on, among other grounds, that the taped telephone conversation between Johnson and Gomez in which Johnson repeated Bryce’s claim that he had cocaine for sale and had distributed it to others was inadmissible hearsay.²⁰¹ The district court had admitted the telephone conversation pursuant to the residual exception of Rule 807.

            The Second Circuit in analyzing the rule and the facts found that Bryce did not dispute that the statements in the Johnson Gomez tape were not material, that the declarants were unable to testify, or the government complied with the notice requirement of the rule.²⁰² The Court found that Bryce’s objection was that the admission of the tape violated his Sixth Amendment confrontation rights and therefore could not have been deemed to advance the interests of justice.²⁰³ The Court believed that the resolution of the of the argument was linked to trustworthiness.  The Court found that the Johnson Gomez tape had a high degree of trustworthiness.²⁰⁴

            The Second Circuit had already held in U.S. v. Mathews²⁰⁵ that:

 

Ordinarily a confession of an accomplice resulting from formal police interrogation cannot be introduced as evidence of guilt of an accused, absent some circumstance indicating authorization or adoption.  On the other hand, if the statement is made to a person whom the declarant believes is an ally rather than a law enforcement official, and if the circumstances surrounding the portion of the statement that inculpates the defendant provide no reason to suspect that the inculpatory portion is any less trustworthy than the part of the statement that directly incriminates the declarant, the trustworthiness of the portion that inculpates the defendant may well be sufficiently established that its admission does not violate the Confrontation Clause.²⁰⁶

 

            Under this theory the Court found that the Johnson Gomez tape did not violate Bryce’s Confrontation rights.  The Court specifically found (1) the statements were obtained via a covert wiretap that neither Johnson nor Gomez was aware; (2) the statements were made during the same time period that Johnson was conversing with Bryce; (3)Johnson’s statements implicated both himself and Bryce as participants in a narcotics conspiracy; and (4) Gomez was Johnson’s colleague in the narcotics trade.²⁰⁷ Based on these factors the Court found there was little reason to believe that Johnson and Gomez had any motive to lie, or were lying.²⁰⁸ With this analysis the Court found the admission of the tape was proper under both Rule 807 and the Confrontation Clause. Here the court rightfully looked to the surrounding circumstances of Bryce’s drug activities to find support for the appropriate indicia of reliability that made the statement trustworthy. With such analysis it is unlikely that the residual exception will swallow the hearsay rule.

            Ultimately, the Second Circuit upheld Bryce’s conspiracy conviction, but reversed the possession with intent to distribute cocaine conviction on the ground that there was no corroborating evidence that Bryce actually did possess cocaine on the dates specified in the indictment.²⁰⁹

            In U.S. v. Papajohn,²¹⁰ the Eight Circuit found that use of the grand jury testimony of an unavailable witness admitted pursuant to the residual exception in an arson and conspiracy trial was proper. Ms. Papajohn and her husband, Donald Lee Earles were suspected of burning down their convenience store in order to gain insurance proceeds.²¹¹  A grand jury was convened before which Mr. Earle’s son, Donnie, testified three times.²¹² During Donnie’s first grand jury appearance, he testified that he did not know who burned down the store.  During his second grand jury appearance, he changed his story, stating that Ms. Papajohn and his father conspired to burn down the store for the insurance money.²¹³  During Donnie’s third grand jury appearance, he claimed his Fifth Amendment right to remain silent and refused to testify. ²¹⁴

            At the subsequent trial of Papajohn and Earles, Donnie again refused to testify.²¹⁵  The trial court declared Donnie an unavailable witness and allowed the government, over objections of the defense, and pursuant to the residual exception to the hearsay rule to read to the jury portions of the transcripts of all three of  Donnie’s appearances before the grand jury.²¹⁶  The jury convicted both defendants.²¹⁷

            On appeal, Papajohn argued that she should be granted a new trial on the basis of the Supreme Court’s holding in the case of Lilly v. Virginia.²¹⁸  In Lilly the Court held that the admission of a nontestifying accomplice’s confession violated the defendant’s right to confront his accuser.²¹⁹  However, the Eight Circuit distinguished the facts of Lilly:

…Donnie was never arrested or charged with a crime.  The obvious incentive that the captured accomplice in Lilly had to shift blame is not present in our case. 

We recognize that although Donnie was not charged with a crime at the time he made the statements, he might still have had some incentive to blame [defendants ], so that he would not be later charged with the arson.  It seems to us, however, that it can almost always be said that a statement by a declarant that incriminates another person in a crime will make it less likely that the declarant will be charged with the crime….We also find that the conditions under which the disputed hearsay statement was made in our case differ significantly than in Lilly.  In Lilly the accomplice’s statements were made in response to leading police questions, asked during custodial interrogation that took place very late at night, shortly after his arrest.²²⁰

 

            The court in Papajohn found that the grand jury testimony satisfied the requirement of having  equivalent circumstantial guarantees of trustworthiness required of Rule 807. The court found that Donnie’s testimony had been (1) given in a formal proceeding; (2) under oath;                       (3) before a grand jury.²²¹  Also, (4) Donnie was not in police custody, (5) nor had he been charged with any crime at the time the testimony was given.²²² Further, (6) he had been asked non-leading questions by the government, and (7) he answered them with lengthy narratives.²²³ Papajohn’s convictions were affirmed by the Eighth Circuit.²²⁴

            The Eight Circuit’s analysis of the appropriate indicia of reliability factors supporting residual exception as it applied to this situation does no harm the hearsay rule.  It is difficult to argue abuse of the hearsay rule here.

            In U.S.  V. Brothers Construction,²²⁵ the Fourth Circuit reached an opposite result with respect to grand jury testimony that had been admitted pursuant to the residual exception. Brothers Construction Company of Ohio and Tri-State Asphalt Corporation were convicted of conspiracy to defraud the United States,  mail fraud, and with making false statements to the government.  Their trial and convictions grew out of a scheme whereby the two companies falsified records in connection with obtaining highway construction subcontract work in the state of West Virginia.²²⁶ Specifically, the companies obtained federal highway money to comply with the development of “disadvantaged business enterprises”(“DBEs”).  However, no disadvantaged business employees ever performed any of the subcontract work.²²⁷

            Robert Samol, an officer and in-house counsel for Tri-State, had testified in the grand jury investigating the case that prior to sending the state a  letter of certification of the company meeting its DBE goals under its subcontract he learned that there had never been an independent DBE work force.²²⁸  At trial Samol invoked his rights under the Fifth amendment and refused to testify.²²⁹ The trial court determined that Samol was unavailable and concluded that his grand jury testimony was sufficiently reliable. The court admitted the grand jury testimony pursuant to the residual exception.²³⁰  On appeal both Brothers and Tri-state asserted that it was improper to have allowed the grand jury testimony read to the jury.²³¹ Here, the Fourth Circuit agreed.

            The court observed that the nature of grand jury testimony provided some indicia of trustworthiness because it was given in the solemn setting of the grand jury, under oath and the danger of perjury, and in the presence of jurors who were free to question and assess credibility, and a court reporter made an official transcript of the proceedings did not make grand jury testimony per se reliable.²³²

              The Court held that with respect to grand jury testimony they were still required to consider the totality of the circumstances of the testimony for particularized guarantees of trustworthiness.²³³

            In considering the totality of the circumstances in this case the Court found that Samol’s grand jury testimony was suspect.  During the oral argument of the case the government acknowledged that after Samol’s appearance at the grand jury, the government had begun an investigation to determine whether Samol had committed perjury through the same testimony that the government sought to introduce.²³⁴ The Court held that it had serious reservations about the reliability of testimony which, at least in part, the government found so untrustworthy that it would consider bringing a perjury charge.²³⁵  As a result, the Court concluded that Samol’s grand jury testimony was not properly admitted pursuant to the requirements of the residual exception. Such reasoning is similar to that used by the district court in Puerto Rico in the Vasquez case that found Mr. Lopez’s memory problems a weak foundation for the admission of statements pursuant to the residual exception. The determination to not admit the grand jury testimony in Brothers was the correct one and not in conflict with Papajohn when all of the circumstances are analyzed.

            Although the court found that the admission of the grand jury testimony against Brothers was an error, they found it to be harmless error.²³⁶  The Fourth Circuit found that there was other sufficient evidence to affirm the convictions of both Brothers and Tri-State.²³⁷

            In U.S. v. Phillips,²³⁸ the Fifth Circuit found that the trial court did not abuse its discretion in refusing to apply the residual exception to admit alleged exculpatory statements of a witness proffered by defendants.²³⁹ The case involved convictions on several schemes of local corruption involving ghost employees, payment of salary kickbacks, and misuse of state government funds by Phillips, the tax assessor for St. Helena Parish, Louisiana, and Newman, a friend and political supporter who owned the largest hardware store in the Parish.²⁴⁰

            Phillips and Newman were involved in many schemes. The Fifth Circuit found that the salient scheme for purposes of the review of the use of the residual exception involved Phillips, Newman, and Newman’s wife, Jean, who was deceased by the time of trial.²⁴¹  Starting in 1990, Phillips put Newman and his wife on the tax assessor payroll at a salary of $800 per month and health benefits.²⁴²  The health benefits were important because Jean had been diagnosed with cancer.  Jean subsequently died of cancer in 1992.²⁴³  She remained on the tax assessor payroll until one month prior to her death.²⁴⁴  Facts at trial showed that over the time period of this scheme Newman kicked back most of their $800 a month salary to Phillips, less what was need to pay federal taxes at the end of the year.²⁴⁵ Evidence at trial showed that Newman and his wife did little or no work for the tax assessor.²⁴⁶

 

            At trial defendants sought to admit exculpatory statements made by Jean Newman to her friend Margaret Carter to show that she was working for the assessor’s office.²⁴⁷ The trial court would not admit the statements under the residual exception.  If she been allowed to testify defendants maintain that Carter would have testified that one day, while in the hardware store, she noticed Jean working with several pieces of paper.  When Carter inquired about the nature of the paperwork, Jean allegedly responded that she was working on a project for Phillips that had something to do with land.²⁴⁸

            The Fifth Circuit, in a footnote, enumerated the requirements of Rule 807, and then held:

The passing comment made by Jean concerning employment is arguably vague.  It may be correct that Jean would have no reason to lie in making a passing comment to a casual acquaintance concerning the nature of any paperwork she was doing.  It may also be correct, however, that Jean’s motivation to lie – her desire to maintain the favorable status of her pseudo-employment for the purpose of receiving health coverage – was so strong that any statements made concerning her supposed employment with the assessor’s office cannot be trusted. ²⁴⁹

           

            The Court found that regardless of which option seemed more persuasive, neither presented a definite and firm conviction the district court made a clear error of judgment by excluding the statements.²⁵⁰  As such, the Court did not disturb the ruling of the trial court with respect to the hearsay exclusion.  Again, good analysis by the court of the circumstances and motivations for the proffered statement found that there was inadequate indicia of reliability to support the trustworthiness of the statement.

            Can one find abuse of the residual exception with respect to any of these federal criminal  cases?  Of course not.  The federal courts have used good analysis and common sense in assessing the equivalent guarantees of trustworthiness required of evidence admitted under Rule 807. In Sanchez-Lima, Bryce, and Papajohn the court found equivalent guarantees of trustworthiness for the statements after thoroughgoing analysis. In Brothers and Phillips analysis by the courts showed that the admission of the statements sought to be admitted were unreliable and not supported by equivalent guarantees of trustworthiness.  Although the standard used to reach the decision to admit the evidence pursuant to the residual exception was different, it appears that such decisions were solid and reasonable in each case,

              Let us now turn our attention to the various states who since 1997 have reported cases that involved the residual exception.  Could it be that state courts are abusing the hearsay rule by its overindulgent use of the residual exception?  The evidence from the cases says no.

 

IV. THE  RESIDUAL  EXCEPTION  IN  STATE  COURT  CASES

 

A. CIVIL CASES

            Our search of the reported use of the residual exception in state cases since 1997, yielded only a small number of such reports in civil cases.  Such cases were reported from the states of Colorado,²⁵¹ Delaware,²⁵² and Arkansas.²⁵³ A review of these cases shows that fears of the residual exception in state court cases swallowing the hearsay rule as we know it is highly unlikely.  The judges in the state courts appear to be very careful with respect to the admission of hearsay pursuant to the residual exception.  These judges use the same analytical framework of seeking to determine whether there are appropriate indicia of reliability to give the statements trustworthiness.  These same judges seek to determine whether there has been proper notice of intent to use the exception.

            In the Colorado case, Board of County Commissioners of Adams County v. City and County of Denver,²⁵⁴ the Colorado Court of Appeals upheld the introduction by plaintiffs, pursuant to the residual exception to the hearsay rule, of a study prepared for Defendant. The case involved a breach of contract action brought by the county concerning excessive noise levels by the defendant City of Denver’s airport.²⁵⁵ The study, prepared for Denver, showed that a sixth runway would increase noise levels.²⁵⁶   The court found the report was probative of the validity of Denver’s defenses ands that it was not inherently unreliable.²⁵⁷  Plaintiff county ultimately prevailed and received damages for the excessive noise.²⁵⁸

            The admission of hearsay statements were, also, admitted pursuant to the residual exception in a Delaware case.  In Juran, et al. v. Bron, et al.²⁵⁹ the Delaware Court of Chancery reviewed the trial of plaintiffs and defendants involved in a partnership venture.  Plaintiffs alleged fraud and breach of fiduciary duty against defendants.²⁶⁰  The court trial court had admitted into evidence a conversation of the son of one of defendants that went to the heart of the plaintiff’s fraud, bad faith, and fiduciary duty claims.²⁶¹  The Appeals Court upheld this ruling finding that the statements had circumstantial guarantees of trustworthiness.  The Court found that in an action for fraud and breach of fiduciary duty where few nonparties have knowledge of the facts, statements by a witness in a position to know the truth should be admitted.²⁶²

            Lincoln v. AAA Bail Bond Company²⁶³ was an Arkansas case where the introduction of evidence pursuant to the residual exception was found to be reversible error. In Lincoln appellant Lincoln brought suit to collect unpaid commissions he claimed to have earned prior to his termination.²⁶⁴  A judgment, however, was entered in favor of the appellee bail bond company.²⁶⁵  The Court of appeals reviewed the admission an exhibit relied upon by appellee to show that Lincoln owed the company money. The exhibit was a list concerning accounts receivable which allegedly reflected monies collected by Lincoln but not turned in to the company.²⁶⁶

              The Court of Appeals found the introduction of this evidence was  inadmissible under the residual exception.²⁶⁷  They held that the list had not been prepared in the regular course of business, but was prepared for a special purpose  — to show the court Lincoln owed the company money.²⁶⁸  The court also found that the source of the information contained in the exhibit lacked trustworthiness, since the information was provided by criminal defendants who had the incentive to inflate the amount of monies paid so as to reduce their own debts.²⁶⁹

            Each of these state courts was cognizant and discerning of the requirement that there be circumstantial guarantees of trustworthiness before evidence could be admitted under the residual exception. Although these state cases are far less analytical than those reported from the federal courts, they all articulate in a well reasoned way the reason the hearsay statements were admissible or inadmissible.  Again, in these states there should be no worry that the residual exception will swallow the hearsay rule.  It is clear the state court judges in the civil cases reported on here have not abused their power with respect to the residual exception.

 

B.  CRIMINAL CASES

            Let us now briefly examine the state criminal law cases reported since 1997, which have involved the residual exception. The state courts must often balance the residual exception against a defendant’s confrontation rights.  A review of the state criminal cases shows that such state courts are very careful concerning admission of hearsay pursuant to the residual exception.

            In Arkansas the Court of Appeals of that state have upheld trial judges’ refusal that a defendant be allowed to admit hearsay pursuant to that state’s residual exception on several occasions.  In Clark v. Arkansas,²⁷⁰ the defendant, on trial for murder, sought to introduce statements through a police detective who had allegedly heard that other persons had bragged to confidential police informants that they, and not defendant had committed the murder.²⁷¹  The trial court and the Appeals court found no guarantees of trustworthiness to such alleged statements and excluded the evidence.²⁷²

            In Bilyeu v. Arkansas,²⁷³ the Court of Appeals again upheld the trial court’s refusal to admit statements pursuant to residual exception.  Bilyeu, on trial for the death of his girlfriend’s nineteen month old son sought to introduce a diary, purportedly written by the girlfriend to show that he could not have killed the child on the day in question.²⁷⁴ The courts found that since the diary was unsigned and undated that it did not contain equivalent guarantees of trustworthiness required by the state’s residual exception.²⁷⁵

            In Williams v. Arkansas,²⁷⁶ defendant’s attempt to introduce hearsay through the residual exception also failed.  In this murder and kidnapping case Williams gave a statement concerning his involvement in the crimes at the time of his arrest.²⁷⁷  He later made a different and less inculpatory statement to Country detectives prior to trial.²⁷⁸  At trial the state introduced, in its case in chief, only Williams’ first statement.  Williams sought to introduce his second statement.  The court ruled that it was inadmissible under the residual exception because there was no guarantee of trustworthiness to this second statement which Williams made after a co-defendant had implicated him.²⁷⁹  The court contended that Williams had every reason to give detectives a self serving statement to minimize his participation in the crimes.²⁸⁰

            The Arkansas cases show that there is little likelihood that the residual exception will swallow the hearsay rule or that judges there are abusing the use of the exception. In Clark, Bilyeu or Williams none of the defendants could show the requisite indicia of reliability surrounding the statements they proffered to make one believe that they were trustworthy.

            In Colorado v. Meyer,²⁸¹ the court of appeals of that state upheld the prosecution’s right  to introduce, pursuant to the residual exception, a verified complaint to obtain a restraining order sworn out by the murder victim against defendant.²⁸²  The Court found that the complaint possessed sufficient indicia of reliability as a court document, and that the victim had little reason to fabricate.²⁸³  In that the statement possessed the necessary guarantees of trustworthiness, admission of the statement did not violate defendant’s right of confrontation.²⁸⁴

            In Delaware v. Anderson, et. al.,²⁸⁵ the court did not allow the prosecution to introduce, pursuant to that state’s residual exception, statements made by the victim in a felony murder case while he was in the hospital.  The victim gave three statements concerning the identity of the defendants before he died.²⁸⁶  The court found that over the course of the victim’s hospitalization he suffered nightmares and hallucinations.²⁸⁷  The court, also, found that over the course of the hospitalization the victim discussed the case with numerous people.²⁸⁸  The court maintained that such facts raised doubts as to whether the proffered statements against defendants came from the victim’s unaided memory.²⁸⁹  Lacking particularized guarantees of trustworthiness, the court excluded the statements because to admit them would have deprived defendants of their right to confrontation.²⁹⁰

            In an earlier case, Delaware v. Bowe et. al.,²⁹¹ the court had reached a similar finding with respect to the in hospital photo identifications of defendants by the victim nine days after an assault.

The court found that the photo identifications, sought to be introduced by the prosecution came after the victim had spoken with the detective investigating the case nine times.²⁹²  The court was not convinced that the identification was not influenced by the detective or by something other than a desire to tell the truth.²⁹³   There was no appropriate indicia of reliability to the identifications to be found in this situation. The identifications were disallowed pursuant to the residual exception.

            In Iowa v. Castaneda,²⁹⁴ the Iowa Supreme Court overturned defendant’s conviction for child abuse and remanded the case.  The court provided an explanation supporting the use of the residual exception on remand.  Yet, the court gave no thoroughgoing analysis for the trial court to follow in order to determine whether there existed  particularized guarantees of trustworthiness with respect to the reintroduction at the retrial of a videotaped statement of the child  victim.²⁹⁵

Castaneda is disappointing in this respect.

            The same court had given an excellent analysis of its findings of particularized guarantees of trustworthiness in the case of Iowa v. Hallum.²⁹⁶  In Hallum the Court allowed the prosecution during a murder trial, pursuant to the residual exception, to introduce defendant’s accomplice’s videotaped narrative of the crime.²⁹⁷

            The accomplice in that case was Carlos Medina.  The Iowa Supreme Court allowed Medina’s statement into evidence pursuant to the residual exception after finding (1) Medina was not offered leniency in exchange for his statement; (2) he did not attempt to shift blame to the defendant; (3) he unequivocally acknowledged that he committed serious offenses and did not attempt to avoid responsibility for his own acts; (4) he did not attempt to curry favor with the police; (5) he voluntarily gave his statement after being given his Miranda rights; (6) he had not been caught “red-handed” and so was not in a situation where his only recourse was to share blame by implicating the defendant; (7) His statement was given shortly after the commission of the crime while his memory was fresh; and (8) his statement was extremely detailed.²⁹⁸ This thoroughgoing analysis by the court demonstrated that thee were appropriate indicia of reliability to show that the statement was trustworthy.

            In Minnesota v. Martin,²⁹⁹The Supreme Court of Minnesota upheld the trial court’s refusal to allow defendant who was on trial for murder to introduce a double hearsay statement as part of his defense.³⁰⁰  The Court found that defendant had failed to establish sufficient guarantees of trustworthiness because he made no offer of proof about the circumstances of the conversations, about the declarant’s memory³⁰¹.  Additionally, the Court found that before defendant had offered this double hearsay testimony, he had already introduced extrinsic evidence to contradict the proffered testimony.³⁰²

            A year earlier in Minnesota v. Martin,³⁰³ involving the same defendant the Supreme Court of Minnesota reversed the state appellate court’s ruling that prior testimony of Martin’s co-defendants who were tried separately could be introduced at his trial by the prosecution.³⁰⁴  The Supreme Court found that the appeals court erred when it concluded that the entire portions of the co-defendants’ trial testimony bore sufficient indicia of reliability to merit admission under the residual exception and the Confrontation Clause.³⁰⁵ The Supreme Court found that some of the proffered testimony was so unreliable it would have to be subjected to cross examination.

            In the Matter of L.E.P.,³⁰⁶ a case involving a juvenile, the Minnesota Supreme Court examined the criteria state courts should articulate in evaluating statements by young children admitted pursuant to the residual exception.³⁰⁷ The criteria included evaluating the lack of motive to fabricate, spontaneity and demeanor of the child, expressions unexpected from a child of that age, and the absence of leading questions.³⁰⁸

            In Minnesota v. Wikan,³⁰⁹ the Court of Appeals upheld the prosecution’s introduction of prior inconsistent statements of a victim of spousal abuse pursuant to the state’s residual exception.  The court found that the prior statements implicating her spouse, which differed from her testimony at trial, possessed the requisite guarantees of trustworthiness.³¹⁰  The Court found that the statements were reliable because (1) they were against interest due to the relationship; (2) she did not appear confused when she made the statements; (3) the statements were corroborative of what other witnesses testified, and (4) they were made just after the event.³¹¹

            In Michigan v. Lee,³¹² the Court of Appeals of that state upheld the admission, pursuant to the state’s residual exception, statements of a victim of an armed robbery who died before the trial.  The declarant identified defendant as the perpetrator.  The Court found the statements had particularized guarantees of trustworthiness.³¹³  Among other factors, the court found were that (1) the victim suffered no memory loss from the incident; (2) that he was coherent when he made the statements; (3) he was not confused; (4) and the statements were voluntary.³¹⁴  Also, the court found that the statements were (5) not prompted by pressure from police or others.³¹⁵

            In Michigan v. Welch,³¹⁶ the Court of Appeals upheld the trial court’s decision to not allow a hearsay statement offered by the defendant pursuant to the residual exception.³¹⁷ Defendant on trial for the murder of a girlfriend he allegedly pushed off a bridge to her death sought the introduction of  statements by witnesses who allegedly heard the victim say she was going to kill herself moments before her plunge.³¹⁸  Here the court held that the statements were not reliable.  The court found that statement had not been related directly to the police officer who would testify.  The defense sought too have the police officer to testify to what a witness had overheard from others.³¹⁹  However, there was (1) no evidence that this witness actually heard the statement by the victim; (2) no other witnesses testified as to such statement; (3) sixteen minutes had elapsed between the victim’s plunge and the witness relating the information to the officer.³²⁰  The court also found unreliable the fact that the officer who approached the group of witnesses (4) found them laughing and giggling about the situation.³²¹ Finally, the court found the officer (5) had not written down the statement.³²² A sad set of fact that would not support a finding of equivalent guarantees of trustworthiness.

            In Nebraska v. Garner,³²³ the Supreme Court of that state upheld the trial court’s refusal to introduce tapes of a false confession at a murder trial.  Defendant, on trial for murder sought introduction of the taped confession of an 11 year boy who confessed to the crime.³²⁴  The 11 year old had been seen at the victim’s house prior to the murder.³²⁵  He was questioned by police for seven hours before defendant became the true suspect of the crime.  The 11 year old later said he made up the confession so that he could go home and go to sleep.³²⁶  The 11 year old was available and testified at trial.³²⁷  The Court found the tapes were inadmissible hearsay and that it was not an abuse of discretion for the trial court to not allow the tapes pursuant to the residual exception.³²⁸ There was no guarantee of trustworthiness to the tapes made under the conditions of this case.  The court rightly decided in this situation that it was best that the 11 year old who was available for the trial testify and be subjected to cross examination.

            In Nebraska v. Jacob,³²⁹the Nebraska Supreme Court again upheld a trial court’s refusal to allow defendant, Jacob,  on trial for murder to introduce evidence pursuant to the residual exception.  In this case Jacob sought introduction of a videotape deposition of a used car salesman in Maine.³³⁰ Jacob who had planned to fly to England sought to sell his vehicle in Maine, where he had driven after killing his girlfriend and her new lover in Nebraska.³³¹  He sought introduction of the videotape to show his innocent behavior prior to his arrest.³³²  The Nebraska trial court did no analysis but held that the videotape would not be admitted pursuant to the residual exception.  The Supreme Court found the trial court had not abused its discretion for the “residual exception is to be used rarely and only in exceptional circumstances.”³³³  The defense had done little to show that the proffered  videotape possessed any particularized guarantees of trustworthiness.  The court was correct not to admit the evidence.

            As this review illustrates the state courts are very cautious concerning introduction of hearsay pursuant to the residual exception in criminal cases. The Arkansas Supreme Court in three separate cases would not allow introduction of defense evidence pursuant to the residual exception. In Delaware the court in separate cases twice denied prosecutors the use of  residual hearsay of unreliable identifications by crime victims who were hospitalized.  The Iowa Supreme Court gave a very thoroughgoing analysis of appropriate indicia of reliability for introduction of the statements in Hallum. In the four cases considered by the Minnesota Supreme Court the court found particularized guarantees of trustworthiness in only two of the cases.  The Michigan courts allowed testimony pursuant to the residual exception in one case but not the second.  The Nebraska court gave short shrift to defendants’ requests to introduce hearsay pursuant to the residual exception in the two cases it considered.

            As a result of this review we need not fear that the use of the residual exception is being

 abused by judges in state criminal court cases.

 

C. THE FLORIDA CASES

            As noted earlier in this article Florida does not have a residual exception akin to Rule 807. However, Florida does have two sections of its evidence code directed to the types of circumstances where residual exceptions often are applied. Section 90.803(23) allows the use of out of court statements of children 11 years old or younger in child abuse cases.  Section 90.803(24), allows introduction of such statements by elderly or disabled adults. These may be viewed as “quasi-residual” exceptions.

              This survey would not be complete without commenting on the cases in Florida where hearsay statements have been offered pursuant these “quasi-residual” exceptions. The initial question is whether such cases require the same type of Rule 807 analysis to determine whether there are appropriate indicia of reliability and notice to establish trustworthiness.  The answer is, of course, no.  There is no need for an independent analytical framework in Florida because the statutes in question set out the requirements to be followed.  If the requirement of the statute are not met the evidence is not allowed.  A review of the cases reveals that the courts of Florida are very careful with the hearsay evidence sought to be introduced pursuant to their “quasi-residual” statutes.   

            The essence of  both statutes is that they seek to test the reliability of out of court statements.  In criminal cases notice must be given.  In all cases the judge must hold a hearing outside of the hearing of the jury to determine the reliability of such statements.³³⁴ If reliable, such statements may be introduced whether the declarant is available or unavailable.³³⁵  If the declarant is unavailable, the trial judge must determine whether the hearsay statement is reliable and from a trustworthy source without regard to corroborating evidence.³³⁶  If the answer is yes, then the judge must determine whether other corroborating evidence is present.³³⁷  If the answer to either question is no, then the hearsay statements are inadmissable.³³⁸

            In Doe v. Broward County School Board,³³⁹ a trainable mentally retarded girl with Downs Syndrome had been digitally penetrated by a mentally disabled male in an after school case program at an elementary school in Broward County.³⁴⁰ Her mother brought a personal injury lawsuit claiming negligent supervision.³⁴¹ The victim was unavailable to testify at the trial. The School Board made a motion in limine to exclude from trial the victim’s hearsay statements to her mother and a psychologist on the ground that the hearsay statements were not admissible pursuant to 90.803(23), because the victim was unavailable and there was no corroborating evidence of the incident.³⁴²  The trial court granted the motion in limine.  The court then granted the School Board’s motion for summary judgment based upon the court’s conclusion that 90.803 (23), preempted all other hearsay exceptions, and as a result, the victim had no evidence with which to prove her case.³⁴³

            The Florida Court of Appeals found that the trial judge had not abused its discretion in finding that there was no corroborating evidence of the incident which would allow the introduction of the hearsay statements pursuant to 90.803 (23).³⁴⁴ Yet, the appeals court reversed the summary judgment and remanded the case for the trial judge to determine whether the victim’s out of court statements may have been admitted pursuant to other hearsay exceptions.³⁴⁵

            In Florida v. Townsend,³⁴⁶ the Florida Supreme Court reversed defendant’s conviction for abuse on a child of two years old because of errors in the trial court’s failure to make adequate findings for the admission of the child victim’s hearsay statement. The Court found that:

Section 90.803 (23) (a) (1) mandates that the trial judge in a hearing conducted outside the presence of the jury, determine whether a hearsay statement is trustworthy and reliable by examining the time, content, and circumstances of the statement, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim and any other factor deemed appropriate,,, Other factors may include… a consideration of the statements’ spontaneity; whether the statement was made at the first available opportunity following the alleged incident… whether the child used terminology unexpected of a child of similar age; the motive or lack thereof to fabricate the statement…in sum, as noted by the United States supreme Court in Wright, a court is to use a totality of the circumstances evaluation in determining reliability.³⁴⁷

           

            The Court in Townsend found, however, that the trial judge merely listed each of the statements to be considered and summarily concluded, without explanation or factual findings, that the time, content, and circumstances of the statements to be admitted at trial were sufficient to reflect that the statements were reliable.³⁴⁸  The Court found such findings insufficient under both the Florida statute and the constitutional requirements of Idaho v. Wright.³⁴⁹

            Similarly, in Hill v. Florida,³⁵⁰ the state court of appeals reversed and remanded defendant’s conviction for sexual battery and a  lewd and lascivious act committed in the presence of a 4 year old..³⁵¹ The court found that, although some of the child’s out of court hearsay statements had been found reliable pursuant to 90.803 (23), the trial court had erred when it allowed the examining physician to testify as to the child victim’s statements about the defendant’s culpability without observing the safeguards of 90.803(23), with respect to such testimony. ³⁵²

            In Florida v. Jones,³⁵³ the Supreme Court of Florida determined that by providing safeguards outlined in 90.803(23), the legislature of the Florida had sought to strike a balance between the need to consider child hearsay statements in judicial proceedings and the rights of the accused.³⁵⁴  The Court held that 90.803 (23) comported with the confrontation clauses of both the federal Constitution and the Florida Constitution.³⁵⁵

            In stark contrast to these child abuse cases, the Florida Supreme Court in Conner v. Florida,³⁵⁶ held that the use of hearsay exception for elderly adults, pursuant to 90.803(24), was, in criminal cases unconstitutional.

            In that case defendant was convicted, on a plea of nolo contendre, of armed burglary, armed robbery and armed kidnaping.³⁵⁷  The victim was an 84 year old man who died prior to trial.  The trial court ruled that hearsay statements he gave to police about the crime were corroborated by other evidence and that the State would be allowed in a hearing to establish that the circumstances surrounding the statements guaranteed their reliability.³⁵⁸

             The Supreme Court of Florida found deficiencies with the statute as it applied to elderly persons.  The Court found that 90.803 (24), in defining elderly as an adult 60 years of age or older, applies to a much broader class of adult declarants than did the child abuse statute of 90. 803 (23).³⁵⁹  As written the statute applied to all persons over 60 years old.  The Court also found, unlike the child abuse statute which was limited to acts describing child abuse, neglect, or sexual abuse, under the 90.804 (24) exception for the elderly, declarants could describe any act of abuse, neglect any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any other violent act.³⁶⁰  Thus the elderly hearsay exception would not be limited to crimes concerning elder abuse.  Finally, the Court could not determine a list of factors for the elderly, unlike for the factors for children set out in 90.803 (23) that the Court believe would guarantee the reliability of the hearsay statements of the elderly adult.³⁶¹

            The case was well reasoned.  And, from such reasoning it is easy to presume that though Florida has no residual rule akin to 807, the “quasi-residual” exceptions it has adopted for the elderly and children will not swallow the hearsay rule as we know it.

 

V.  CONCLUSION

           

            This review of the twelve federal cases and twenty two state cases which relied on the residual exception in some part show that there has been no abuse of the rule by the courts at the federal or the state level since the 1997 amendment to the residual exception.  Courts appear vigilant with respect to analyzing the need for particularized guarantees of trustworthiness for statements proffered pursuant to the exception.  Very often, such analysis shows that the statements lack the particularized guarantees of trustworthiness needed to pass muster. We need the residual exception to the hearsay rule.  It is the exception that gives flexibility to the rule.  If the states are reluctant to adopt such residual exceptions they may well be advised to look at the Florida model, especially for child abuse and neglect cases.

           

           

 

---

¹ McCormick On Evidence, § 245 (5^th ed. 1999).

² Id. at § 245.

³ Id. at§ 245.

⁴ See, Glenn Weissenberger, Federal Rules of Evidence: Rules, Legislative History, Commentary and Authority (1999).

⁵ Fed. R.  Evid. 102 provides that “These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”

⁶ See, Fed. R. Evid. 803(1) – (23), 804(b)(1) – (6).

⁷ See, Fed. R. Evid.. 801(d)

⁸ Fed. R. Evid.. 803(24), provided:

                The following are not excluded from the hearsay rule, even though the declarant is available as witness:

                (24) Other exceptions.  A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) 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 (C) the general purpose of these rules and the interests of justice will best be served by the admission of statement into evidence.  However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including name and address of the declarant.

                Federal Rule 804(b)(5) is identical in language except for its preamble which states “the following are not excluded by the hearsay rule if the declarant is unavailable as a witness.”

⁹ See, Senate Comm.  on Judiciary, S. Rep. No. 1277, 93d Cong., 2d Sess.  18-20 (1974), reprinted in 1974 U.S. Code Cong. & Admin. News 7051,7065-66.

¹⁰ See, James W. Moore Et. Al., Moore’s Federal Practice, Federal Rules of Evidence ¶ 803.12 (1997 edition).

¹¹ See, James E. Beaver, The Residual Hearsay Exception Reconsidered, 20 Fla. St. U. L. Rev 787, 789 (1993).

¹²Id . at 790. But also, cf. G. Michael Fenner, The Residual Exception To The Hearsay Rule: The Complete Treatment, 33 Creighton L. Rev. 265. Fenner believes the residual exception is the safety valve of the hearsay rule.

¹³ Thomas Black, Federal Rules of Evidence 803(24) & 804(b)(5) – The Residual Exceptions – An Overview, 25 Houston L. Rev. 13, 56 (1988).

¹⁴ Fed. R. Evid. 807 became effective on December 1, 1997, See, Federal Rules of Evidence Handbook      ( Anderson Publishing 1999).

¹⁵ Fed. R. Evid. 807.

¹⁶ See Federal rules of Evidence Handbook, supra note 13 at 155.

¹⁷ Beaver, supra at note 10, at 790

¹⁸ Beaver, supra at note 10, at 791.

¹⁹ Beaver, supra at note 10 at 791.

²⁰See, McCormick, supra at § 324.

²¹ In May, 2001 the author, with assistance from the Barry University School of Law Library reference staff,  undertook an on-line search of cited cases referencing the residual exception since 1997.  The cases cited herein are a result of that search.

²² Fed. R. Evid. 801(a).

²³ Fed. R. Evid. 801(c).

²⁴ See, McCormick, supra at note 2, at § 246.

²⁵ See, McCormick, supra at § 254.

²⁶  See, McCormick, supra at§ 256.

²⁷ Fed. R. Evid. 803(2)

²⁸ Fed. R. Evid. 803(4)

²⁹ Fed. R. Evid. 803(6)

³⁰ Fed. R. Evid. 803(16)

³¹ Fed. R. Evid. 804(b)(2)

³² Fed. R. Evid 804(b)(3)

³³ Weinstein’s Federal Evidence, Volume 6, Table T1 (2d ed. 2000)

³⁴ Id. at T2- T7: The Alabama Rules of Evidence became effective 1/1/96; Alaska Rules effective 8/1/79; Arizona Rules effective 9/1/77; Arkansas Rules effective 7/1/76; Colorado Rules effective 1/1/80; Delaware Rules effective 1/1/80; Florida Rules effective 7/1/79; Hawaii Rules effective 1/1/81; Idaho Rules effective1/1/85; Indiana Rules effective 1/1/94; Iowa Rules effective 1/1/83; Kentucky Rules effective 1/1/92; Louisiana Rules effective 1/1/89; Maine Rules effective2/2/76; Maryland Rules effective 1/1/94; Michigan Rules effective 3/1/78; Minnesota Rules effective 7/1/77; Mississippi Rules effective 1/1/86; Montana Rules effective 7/1/77; Nebraska Rules effective 8/24/75; Nevada Rules effective 1/1/71(based on Preliminary Draft of the Federal Rules); New Hampshire Rules effective 1/1/85; New Jersey Rules effective 1/1/93; New Mexico Rules effective 1/1/73 ( amended 7/1/76 to conform to the changes made to the draft Federal Rules by Congress); North Carolina Rules effective 7/1/84; North Dakota    Rules effective 2/15/77; Ohio rules effective 7/1/80; Oklahoma Rules effective 10/1/78; Oregon Rules effective 1/1/82; Pennsylvania Rules effective 10/1/98; Puerto Rico Rules effective 10/1/79; Rhode Island Rules effective 10/1/87; South Carolina Rules effective 9/3/95; South Dakota Rules effective 7/1/78; Tennessee Rules effective 1/1/90; Texas Rules effective 3/1/98; Utah Rules effective 9/1/83; Vermont Rules effective 4/1/83; Washington Rules effective 4/2/79; West Virginia Rules effective2/1/85; Wisconsin Rules effective 7/1/74(based on Final Draft of the Federal Rules); Wyoming rules effective 1/1/78.  The Military Rules of Evidence are based on the Federal Rules and were adopted 3/12/80.

³⁵ Id. at Table T1.

³⁶ Id. at Table T7.

³⁷ Id. at Table T106 – T112.    

³⁸ Id. at Table T159 – T161.The states that have adopted residual exceptions are: Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Louisiana, Maryland, Michigan, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Puerto Rico, Rhode Island South Dakota, Utah, West Virginia, Wisconsin, Wyoming, and the U.S. Military.

³⁹ Id. at Table T159 – T161.

                 See also, Colo. R. Evid. 807, effective January 1, 1999.

⁴⁰ Id. at Table T159 – T161.

⁴¹ Id. at T160.

⁴² The State of Nevada has no residual exception where the declarant is available.  Nevada does provide a residual exception akin to Rule 807 when the declarant is unavailable.  However, the Nevada rule omits the notice requirement.

⁴³ Id. at T160 and T162.

⁴⁴ See, Fla. R. Evid. §§ 90.803(23) and 90.803(24).

⁴⁵ Florida R. Evid. §90.803(23)(a).

⁴⁶Id. at §90.803(23)(a) 1.

⁴⁷ Id. at§90.803(23)(a) 2(a) and (b).

⁴⁸ Id. at § 90.903 (a) 2 (b).

⁴⁹ Id. at §90.803(23)(b).

⁵⁰ Id. at § 90.803(23)(c).

⁵¹ Id. at § 90.803(24)(a) – (c).

⁵² See, Amendments to the Florida Evidence Code, 25 F.L.W. S909 ( Fla. Oct.26 2000).

⁵³ Id.

⁵⁴ 497 U.S. 805 (1990)

⁵⁵ Id. at 827.

⁵⁶ Id. at 823 .

⁵⁷ Id. at 823 .

⁵⁸ Id. at 824 -25 .

⁵⁹ Id. at 826  .

⁶⁰ See, Fed. R. Evid. 804(b)(2).

⁶¹ McCormick, supra. § 324.

⁶² Id.

⁶³ Id.

⁶⁴ Id.

⁶⁵ Id.

⁶⁶ Id.

⁶⁷ Id.

⁶⁸ Id.

⁶⁹ See, Beaver, supra at 797.

⁷⁰ See, Beaver, supra at 797 -98, citing Karme v. Commissioner, 673 F.2d 1062(9th Cir. 1982), where the court found that bank records bore circumstantial guarantees of trustworthiness because of the distant location of the bank and because there was no evidence to suggest the bank records were anything other than what they purported to be.

⁷¹ Id.

⁷² Id. at 798.

⁷³ Fenner, supra at 303.

⁷⁴ Id.

⁷⁵ See, Fed. R. Evid. 102

⁷⁶ See, Gonzalez v. Digital,8 F. Supp.2d 194 ( E.D.N.Y. 1998) and Chase Bank v. Traffic Stream, 86 F. Supp. 2d 244 (E.D.N.Y. 2000) infra.

⁷⁷ See, John Paul Mitchell v. Quality King,106 F. Supp. 2d 462 (E.D.N.Y. 2000), infra.

⁷⁸ See, United States v. Gomez, 191 F. 3d 1214 (10^th Circ. 1999).

⁷⁹ See, United States v. Sanchez-Lima, 161 F. 3d 545 ( 9^th Cir. 1998), infra.

⁸⁰S ee, Iowa v. Hallum, 585 N.W. 2d 249 (1998), infra.

⁸¹ Beaver, supra at 798.

⁸² Fed. R. Evid. 807.

⁸³ Fed. R. Evid. 807.

⁸⁴ Fenner, supra at 279.

⁸⁵ Id.

⁸⁶  Id. at 281

⁸⁷ See, Fenner, supra at 280 and Beaver, supra at 802.

⁸⁸ Fed. R. Evid. 807

⁸⁹ See, Fenner, supra at 280, citing United States v. Iaconetti, 406 F. Supp. 554 (E.D.N.Y. 1976), aff’d F.2d 574 (2d Cir. 1976), cert. denied 429 U.S. 1041 (1977).

⁹⁰ 193 F.3d 1241 (11^th Cir 1999).

⁹¹ Id. at 1243.

⁹² Id at 1263.

⁹³ Id at 1249.

⁹⁴ Id. at 1244-1245.

⁹⁵ Id.

⁹⁶Id. at 1252.

⁹⁷ Id at 1252-53.

⁹⁸ Id.

⁹⁹ Id.

¹⁰⁰ Id.

¹⁰¹ Id. at 1254, citing Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547,549 (5^th Cir.1987).

¹⁰² Id at 1254.

¹⁰³ Id.

¹⁰⁴ Id. at 1255.

¹⁰⁵ Id.

¹⁰⁶ 189 F. 3d 218 (2d Cir. 1999).

¹⁰⁷ Id. at 240.

¹⁰⁸ Id. at 219.

¹⁰⁹ Id. at 220.

¹¹⁰ Id. at 223.

¹¹¹ Id. at 224.

¹¹² Id. at 240.

¹¹³  Fed. R. Evid 803(3) provides: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (3) A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition ( such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

¹¹⁴ 189 F.3d 218 at 231.

¹¹⁵ Id.

¹¹⁶ Id. at 232.

¹¹⁷ Id. at. 234.

¹¹⁸ Id. at 238.

¹¹⁹ 150 F.3d 223 (2d Cir. 1998).

¹²⁰ The notice requirement of Fed. R. Evid. 807 provides: However, a statement may not be admitted under this exception unless 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, including the name and address of the declarant.

¹²¹ Id. at 224.

¹²²Id.

¹²³ Id.

¹²⁴ Id. at 226

¹²⁵ Id. at 224

¹²⁶ Id.

¹²⁷ Id. at 225.

¹²⁸ Id.

¹²⁹ Id.

¹³⁰ 8 F. Supp. 2d 194 (E.D. N.Y. 1998).

¹³¹ Id. at 196.

¹³² Id.

¹³³ Id. at 197.

¹³⁴ Id.

¹³⁵ Id.

¹³⁶ Id. at 201.

¹³⁷ Id.

¹³⁸ Id.

¹³⁹ Id.

¹⁴⁰ Id.

¹⁴¹ Id.

¹⁴² Id. at 202

¹⁴³ 24 F. Supp. 2d 197.

¹⁴⁴ Id. at 198.

¹⁴⁵ See, P.R. Law Ann. tit. 9 § 1751.

¹⁴⁶  24 F. Supp. 2d at 199.

¹⁴⁷ Id.

¹⁴⁸ See, P.R. law Ann. tit 9§ 1751.

¹⁴⁹  24 F. Supp. 2d at 199.

¹⁵⁰ Id. at 200.

¹⁵¹ Id.

¹⁵² Id.

¹⁵³ 86 F. Supp. 2d 244 (S.D. N.Y. 2000)

¹⁵⁴ Id. at 246.

¹⁵⁵ Id. at 247.

¹⁵⁶ Id.

¹⁵⁷ Id at 251.

¹⁵⁸ Id. at 251, note 12.

¹⁵⁹ Id. at 251, note 13.

¹⁶⁰ Id. at 253.

¹⁶¹ Id. at 254, note 17.

¹⁶² Id. at 254.

¹⁶³ Id.

¹⁶⁴ Id.

¹⁶⁵ Id.

¹⁶⁶ Id at 262.

¹⁶⁷ 106 F. Supp. 2d 462 (E.D. N.T. 2000).

¹⁶⁸ Id. at 465.

¹⁶⁹ Id.

¹⁷⁰ Id. at 467-469.

¹⁷¹ Id. at 471-472.

¹⁷² Fed. R. Evid. 901(b)(4) provides, in relevant part: “… the following are examples of authentication or identification conforming to this rule: (4) Distinctive Characteristics and the like.  Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”

¹⁷³ 106 F. Supp.2d at 472.

¹⁷⁴ Id at 473.

¹⁷⁵ Id.

¹⁷⁶ Id.

¹⁷⁷ Id.

¹⁷⁸ Id.

¹⁷⁹ Id. at 478.

¹⁸⁰ U.S. Constitution, Amend. VI, provides in relevant part: “

 In all criminal cases, the accused shall enjoy the right….to be confronted with the witnesses against him…”

¹⁸¹ See, Idaho v. Wright supra. At 813.

¹⁸² Ohio v. Roberts, 448 U.S.56, 66 (1980).

¹⁸³ Wright, supra. at 816.

¹⁸⁴ 161 F. 3d 545 (9^th Cir.  1998).

¹⁸⁵ Id. at 546.

¹⁸⁶ 18 U.S.C. § 111 provides, in relevant part:

¹⁸⁷ 161 F. 3d at547.

¹⁸⁸ Id.

¹⁸⁹ Id.

¹⁹⁰ Id.

¹⁹¹ Id at 548.

¹⁹² Id.

¹⁹³ 208 F. 3d 346 (2d Cir. 1999).

¹⁹⁴ Id. at 349.

¹⁹⁵ Id.

¹⁹⁶ Id.

¹⁹⁷ Id.

¹⁹⁸ Id.

¹⁹⁹Id.

²⁰⁰ Id.

²⁰¹ Id. at 350.

²⁰² Id. at 351.

²⁰³ Id.

²⁰⁴ Id.

²⁰⁵ 20 F. 3d 538 (2d Cir. 1994).

²⁰⁶ Id. at 545-46.

²⁰⁷ 208 F. 3d at 351.

²⁰⁸ Id.

²⁰⁹ Id. at 356.

²¹⁰ 212 F. 3d 1112 (8^th Cir. 2000).

²¹¹ Id. at 1116.

²¹² Id.

²¹³ Id.

²¹⁴ Id.

²¹⁵ Id.

²¹⁶ Id.

²¹⁷ The appeal in this case was only brought by Ms. Papajohn.  She appealed her convictions for one count of conspiracy to commit arson and mail fraud, one count of aiding and abetting arson, and two counts of mail fraud. Id. at 1115.

²¹⁸ 527 U.S. 116 (1999).

²¹⁹ Id. at119.

²²⁰ 212 F.3d at 1120.

²²¹ Id.

²²² Id.

²²³ Id.

²²⁴ Id. at 1122.

²²⁵ 219 F. 3d 300 (4^th Cir. 2000).

²²⁶ Id. at 304-306.

²²⁷ Id at 306-308.

²²⁸ Id. at 308.

²²⁹ Id. 309.

²³⁰ Id. at 309-310.

²³¹ Id.

²³² Id. at 310.

²³³ Id.

²³⁴ Id.

²³⁵ Id.

²³⁶ Id.

²³⁷ Id. at 321.

²³⁸ 219 F. 3d 404 ( 5^th Cir. 2000).

²³⁹ Id. at 419.

²⁴⁰ The defendants were each convicted on all counts of a twenty nine count indictment charging conspiracy, mail fraud, engaging in an illegal monetary transaction, theft from a federally funded program, money laundering, and perjury. Id. at 407.

²⁴¹ Id. at 408 and 419.

²⁴² Id. at 407-408.

²⁴³ Id.

²⁴⁴ Id at 408.

²⁴⁵ Id.

²⁴⁶ Id.

²⁴⁷ Id. at 419.

²⁴⁸ Id.

²⁴⁹ Id.

²⁵⁰ Id.

²⁵¹ Colorado R. Evid. 804(b)(5) provides: Declarant Unavailable…A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

                N.B. On January 1, 1999, Colorado transferred its two part residual exceptions into one new Rule 807 Residual Exception.

²⁵² Delaware R. Evid. 803(24) Provides: the following is not excluded by D.R. E. 802, the hearsay rule:

                A statement not specifically covered by any of the foregoing exceptions but having circumstantial guarantees of trustworthiness, if the court determines that :

                (A) the statement is offered as a evidence of a material fact;

(B) 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

                (C) the general purposes of these rules and the interest of justice will best be served by admission of the statement into evidence.

²⁵³Arkansas R. Evid. 803(24) provides: Other Exceptions.  A statement not specifically covered by any of the foregoing exceptions but having equivalent guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) 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 (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.  However, a statement may not be admitted under this exception unless the proponent makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

²⁵⁴ 2001 Colo. App. LEXIS 564 (March 29, 2001).

²⁵⁵ Id. at 1.

²⁵⁶ Id. at 25.

²⁵⁷ Id. at 26

²⁵⁸ Id. at 29.

²⁵⁹ 1999 Del. Ch. Lexis 232.

²⁶⁰ Id. at 1.

²⁶¹ Id. at 10-11.

²⁶² Id. at 12.

²⁶³ 1998 Ark. App. LEXIS 863.

²⁶⁴ Id. at 1.

²⁶⁵ Id.

²⁶⁶ Id. at 3.

²⁶⁷ Id. at 6.

²⁶⁸ Id.

²⁶⁹ Id.

²⁷⁰ 1998 Ark. App. LEXIS 747(October 1998).

²⁷¹ Id. at 1.

²⁷² Id. at 12.

²⁷³ 1998 Ark. App. LEXIS 66 (February 1998)

²⁷⁴ Id. at 4.

²⁷⁵ Id. at 5.

²⁷⁶ 946 S.W. 2d. 678 (1997).

²⁷⁷ Id. at. 684.

²⁷⁸ Id. at 684.

²⁷⁹ Id.

²⁸⁰ Id.

²⁸¹ 952 P. 2d 774.

²⁸² Id. at 777.

²⁸³ Id.

²⁸⁴ Id.

²⁸⁵ 2000 Del. Super. Lexis 60 (2000).

²⁸⁶ Id at 1.

²⁸⁷ Id. at 12.

²⁸⁸ Id.

²⁸⁹ Id.

²⁹⁰ Id.

²⁹¹ 1997 Del. Super. LEXIS 603 (1997).

²⁹² Id. at 4.

²⁹³ Id. at 9.

²⁹⁴ 621 N.W. 2d 435 (2001).

²⁹⁵ Id. at 443-448.

²⁹⁶ 585 N.W. 2d 249 (1999).

²⁹⁷ Id. at 257-259. Some of the factors the Court found relevant to reliability was that the accomplice gave his statement without being offered leniency; he did not attempt to shift blame to defendant; he did not try to avoid responsibility for his own acts in the crime; he did not attempt to curry favor with the police; he had not been caught red-handed in the act; and he gave his statement voluntarily after being given his Miranda warnings.

²⁹⁸ Id. at 257.

²⁹⁹ 614 N.W. 2d 214 (2000).

³⁰⁰ Id. at 225.

³⁰¹ Id.

³⁰² Id.

³⁰³ 591 N.W. 2d 481 (1999).

³⁰⁴ Id. at 484.

³⁰⁵ Id.

³⁰⁶ 594 N.W. 2d 163 (1999).

 

³⁰⁷ Id. at 170-71.

³⁰⁸ Id. at 173.

³⁰⁹ 1997 Minn. App. LEXIS 271(1997).

³¹⁰ Id. at 6.

³¹¹ Id. at 6- 7.

³¹² 622 N.W. 2d 71 (2000).

³¹³ Id. at 76.

³¹⁴ Id. at 80.

³¹⁵ Id.

³¹⁶ 574 N.W. 2d 682.

³¹⁷ Id. at 685.

³¹⁸ Id. at 684.

³¹⁹ Id.

³²⁰ Id.

³²¹ Id.

³²² Id.

³²³ 614 N.W. 2d 319.

³²⁴ Id. at 323.

³²⁵ Id. at 323-24.

³²⁶ Id.

³²⁷ Id. at 329.

³²⁸ Id. 330.

³²⁹ 574 N.W. 2d 117 (1998).

³³⁰ Id. at 139.

³³¹ Id. at 128.

³³² Id. at 139.

³³³ Id.

³³⁴ See, Fla.  Evid. R. 90.903 (23) (a) (1) and 90.803 (24) (a) (1).

³³⁵ See, Fla. Evid. R. 903 (23) (a) (2) and 90.803 (24) (a) (2).

³³⁶ State v. Townsend, 635 So. 2d 949, 957 (Fla. 1994).

³³⁷ Id.

³³⁸ Id.

³³⁹ 744 So. 2d 1068 (4^th DCA Fla. 1999)

³⁴⁰ Id. at 1070.

³⁴¹ Id.

³⁴² Id.

³⁴³ Id.

³⁴⁴ Id. at 1071.

³⁴⁵ Id. at 1073. Specifically, the court of appeals remanded the case in order that the trial court might determine whether the victim’s out of court statements to the psychologist, not relating to the identity of the perpetrator, were admissible under the medical diagnosis and treatment exception and whether the victim’s out of court statements to her mother were admissible as excited utterances.

³⁴⁶ 635 So 2d 949 (Fla. 1994).

³⁴⁷ Id. at 957-58.

³⁴⁸ Id. at. 958.

³⁴⁹ Id.

³⁵⁰ 643 So. 2d 653 (Fla 2d DCA, 1994).

³⁵¹ Id at. 654.

³⁵² Id.

³⁵³ 625 So. 2d 821 (Fla. 1993).

³⁵⁴ Id. at 826.

³⁵⁵ Id.

³⁵⁶ 748 So. 2d 950 (Fla. 2000).

³⁵⁷ Id. at 953.

³⁵⁸ Id.

³⁵⁹ Id. at 958.

³⁶⁰Id.

³⁶¹ Id.

This Birdsong article was originally published in the Nova Law Review, Volume 26, Number 1.

It teaches Evidence law students about the residual exception to the Federal Rules of Evidence.

Read and learn.

 

 

THE RESIDUAL EXCEPTION TO THE HEARSAY RULE – HAS IT BEEN ABUSED – A SURVEY SINCE THE 1997 AMENDMENT

 

                                                          By: Leonard Birdsong

                                                                        © 2001

                                   

 

 

I

I. INTRODUCTION

 

        In our legal system of trial by jury a good deal of the law of evidence is given to exploring hearsay and its exceptions. The factors upon which the value of testimony depends are the perception, memory, narration and sincerity of the witness.¹ In order to encourage witnesses to put forth their best efforts and to expose inaccuracies that might be present with respect to any of these factors our trial system has developed what is known as the testimonial ideal.  That is, witnesses are required to testify under oath, testify in person, and be subject to cross examination.  The rule against hearsay is designed to insure compliance with these ideals.  When one of them is absent a hearsay objection becomes pertinent.² Hearsay evidence is often characterized as unreliable and untrustworthy.  Nevertheless courts constantly admit hearsay evidence under the numerous exceptions found in the common law and in latter day statutes. Hearsay evidence exhibits a wide range of reliability. The effort to adjust the rules of admissibility of hearsay evidence to variations in reliability has been a major motivating factor in the movement to liberalize evidence law.³

            The Federal Rules of Evidence, adopted in 1975,⁴ for use in the federal courts and adopted by many states have helped liberalize the introduction of trustworthy hearsay evidence at trials.⁵  The Federal Rules of Evidence recognize twenty eight standard exceptions to the hearsay rule⁶.  In addition to those exceptions and the “nonhearsay” exceptions⁷, the Congress in promulgating the Federal Rules, adopted rules 803(24) and 804(b)(5), as residual hearsay exceptions.  Such rules allowed introduction of such hearsay statements not specifically covered by any of the named exceptions but having circumstantial guarantees of trustworthiness if the court determined that certain stated conditions were met.⁸

            It was intended that the residual exceptions would be used sparingly by the courts and only in rare and exceptional circumstances.⁹  The Advisory Committee cautioned that the residual exceptions “do not contemplate an unfettered exercise of judicial discretion, but they do provide for treating new and presently unanticipated situations which demonstrate trustworthiness within the spirit of the specifically stated exceptions”¹⁰

            Of all of the exceptions to the hearsay rule, the residual exceptions have probably generated the greatest amount of controversy.¹¹  One evidence scholar, James Beaver, who has examined the use of the residual exceptions fears that the residual exceptions will swallow the hearsay rule.¹²   Another scholar, Thomas Black, believes that  the residual exceptions may be used in such a manner in the federal courts as to abuse traditional concepts of evidence.¹³ As this article will demonstrate such fears are totally unfound.

              In 1997, the residual exceptions of Rules 803(24) and 804(b)(5), were amended and cast in to one new rule, Federal Rule of Evidence 807.¹⁴  The amended rule provides:

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) 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 (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.  However, a statement may not be admitted under this exception unless 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, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.¹⁵

 

 

 

            In amending the residual exception the Advisory Committee noted that “the contents of Rule 803(24) and Rule 804(b)(5) have been combined and transferred to the new Rule 807.  This was done to facilitate additions to Rules 803 and 804.  No change in meaning is intended.”¹⁶

            Prior to the 1997, amendment the aforementioned scholar, James Beaver, surveyed the use of the residual exceptions and found that between 1975 and 1993, the residual exceptions and their state equivalents were reported in more than 140 federal cases and in more than ninety state cases¹⁷.  He concludes that such figures suggest that the residual exceptions were being used more than in rare and exceptional circumstances.¹⁸  He, also, maintained that the residual exceptions weaken the hearsay rule and cautioned states to refuse to adopt the residuals on the ground that they were undesirable and unnecessary.¹⁹ Another scholar, John Strong, the general editor of McCormick On Evidence  believes resort to the exception has been substantial and is surprised by its prominent use by prosecutors in federal courts.²⁰

            A review of recent cases reveals that the admission of residual hearsay pursuant to the exception is being used sparingly and only after a good deal of analysis by both the federal courts and by the courts of states which allow the exception.²¹  In Beaver’s survey he found that the residual exception was reported in 140 federal cases and ninety state cases.  He believes that this was abuse of the rule and that we better be careful.  However, such analysis, relying solely on the number of reported cases, is flawed.  Everything is relative.  The use of the residual exception as reported in 140 cases over a twenty three year period does not seem astounding given there are thirteen federal Circuit Courts of appeals in the country.  Nor does it seem astounding that the residual exception was reported in ninety state cases during the same period.  We have fifty state court systems many with a two tier appellate court system consisting of a court of appeal and a higher state supreme court.

            If Beaver had analyzed exactly how the residual exception was used in each case he would have found no abuse.   The purpose of this article is to survey and analyze the pertinent reported federal and state decisions addressing admission of residual hearsay since the 1997 amendment to the residual exception. Such survey and analysis reveals that there is little likelihood that the hearsay rule will be swallowed by the residual exception.  A secondary purpose of this article is to provide civil trial lawyers, defense attorneys, prosecutors and judges examples of how the circumstantial guarantees of trustworthiness of the residual exception have been argued and analyzed in federal and state courts in recent years.

           

II. HEARSAY, THE FEDERAL RULES OF EVIDENCE, AND THE STATES

            In order to understand the residual exception one must appreciate the definition of hearsay under the Federal Rules.  The rules first define a statement as “an oral or written assertion or nonverbal conduct of person if it is intended by the person as a statement.”²² Thus, hearsay, under the rules, is “a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”²³The definition is an affirmative one which says that an out of court assertion offered to prove the truth of the matter asserted is hearsay.²⁴ Exceptions to the hearsay rule usually are justified on the ground that evidence meeting the requirements of the exception possesses special reliability and often special need, such as the unavailability of the declarant²⁵. That is, there is an objective guaranty of trustworthiness to such statements.²⁶

            The often cited examples of exceptions that exhibit such guarantees of trustworthiness are the excited utterance,²⁷ statements for purposes of medical diagnosis,²⁸ records of regularly conducted activity, ²⁹statements in ancient documents,³⁰ the dying declaration,³¹ and, of course, statements against interest.³²

            Forty one states, Puerto Rico, and the military have adopted the Federal Rules of Evidence.³³  The majority of these states adopted rules of evidence based on the final Federal Rules of Evidence.³⁴  As the Federal Rules of Evidence are amended some states also promptly amend their corresponding rules to maintain similarity with the federal rules.³⁵ The following states have not adopted rules of evidence based on the Federal Rules: California, Connecticut, the District of Columbia, Georgia, Illinois, Kansas, Massachusetts, Missouri, New York, Virginia and the Virgin Islands.³⁶

            The forty one states, Puerto Rico, and the military that have adopted the Federal Rules have all adopted rules similar to the hearsay rule of 801.³⁷  However, not all of these states have adopted the residual exceptions.³⁸  Of the states which have adopted such residual exceptions, Colorado appears to be the only state to have already amended their rules to combine the 803(24) and 804(b)(5) into one Rule 807 as have the Federal Rules of Evidence. ³⁹ The states which have not adopted a residual exception are Alabama, Florida, Kentucky, Maine, New Jersey, Ohio, South Carolina, Tennessee, Texas, Vermont, and Washington.⁴⁰ The state of Louisiana limits its residual exception to civil cases⁴¹.  The states of Nevada⁴² and Wisconsin omit the notice requirement of the Federal Rule.⁴³

            Although Florida has not adopted a residual exception akin to Rule 807, it has two sections of its evidence code⁴⁴ which speak to the kinds of circumstances where residual hearsay exceptions often are applied. These may be thought of as “quasi residual” exceptions. Section 90.803(23) allows the use of out of court statements of a child 11 years old or less describing child abuse, neglect , or sexual abuse against the child,⁴⁵ after the court holds a hearing to determine reliability of such statements.⁴⁶ The statute is applicable whether the child is available or unavailable to testify.⁴⁷ If the child is unavailable to testify and the statements are deemed to be reliable by the court there must be other corroborating evidence of the offense before such statement may be used.⁴⁸ There is also a ten day notice requirement that must be given to a defendant in a criminal case.⁴⁹ Finally, the court, under this statute must make specific findings of fact on the record as to the basis for its ruling to admit or exclude the statements⁵⁰. Section 90.803(24) of Florida’s law is identical, except that it applies to elderly or disabled adults.⁵¹

            Florida promulgated such hearsay exceptions for children in 1985.⁵²  The Florida exception was expanded to the elderly in 1995.⁵³ However, it was not until after 1990 that a number of other states were confronted with the need for such exceptions.  This was as a result of the Supreme Court’s ruling in Idaho v. Wright.⁵⁴  In Wright, a child sexual abuse case, the Court was required to decide whether the admission at trial of certain hearsay statements admitted under Idaho’s residual exception violated the defendant’s rights under the Confrontation Clause of the Sixth Amendment.  The hearsay statements were made by a child declarant to an examining pediatrician.  At trial the child was unavailable as a witness.  The pediatrician testified as to the child’s statements concerning the abuse.  The Supreme Court affirmed the Idaho Supreme Court which ruled that the defendant’s right to confrontation had been denied by admission of the testimony.⁵⁵ The Court held that the State of Idaho could not use other evidence corroborating the truth of such a hearsay statement to support a finding that the statement bore particularized guarantees of trustworthiness.⁵⁶  In other words, to be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.⁵⁷  The Court in Wright declined to endorse a mechanical test for determining “particularized guarantees of trustworthiness;”⁵⁸ however, the Court alluded to a number of factors that might make the hearsay statements made by a child in an abuse case reliable, including spontaneity and consistent repetition, lack of motive to fabricate, mental state of the declarant, and use of terminology unexpected of a child of similar age.⁵⁹

 

            III.  AN ANALYTICAL FRAMEWORK  FOR  EXAMINING

                 THE RESIDUAL EXCEPTION

A. APPROPRIATE INDICIA OF RELIABILITY

            All  hearsay exceptions must exhibit an element of trustworthiness which derives from certain  appropriate indicia of reliability.  One often cited example of such trustworthy hearsay exception is the dying declaration.⁶⁰  It has long been considered reliable that a man would not go to his death with a lie on his lips.  Obviously,  fear of retribution in the afterlife provides the appropriate indicia of reliability to make the dying declaration trustworthy.  So how do we find the appropriate indicia in the residual hearsay exception? 

            Rule 807 provides that a statement not specifically covered by 803 or 804, but having “equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule….”  In applying the residual exception then, the most important issue is whether such statement does offer “equivalent circumstantial guarantees of trustworthiness” to those found in other specific hearsay exceptions.⁶¹  The factors supporting trustworthiness are varied but a few recurring factors may be pertinent to the determination of admissibility.  Among them would be: whether the declarant had a motivation to speak truthfully;⁶² the spontaneity of the statement;⁶³ the time lapse between the event and the statement;⁶⁴ whether the declarant was under oath;⁶⁵ whether declarant had been cross examined;⁶⁶ whether the declarant has recanted or reaffirmed the statement;⁶⁷ and whether the declarant’s first hand knowledge is clearly demonstrated.⁶⁸  A court may, also, consider whether such out of court statement was corroborated by the declarant who was available and testified at trial of the case.⁶⁹ Further, a court might look to circumstances surrounding the extrajudicial statement to determine trustworthiness.⁷⁰  In an effort to determine whether circumstantial guarantees of trustworthiness exist a court may look to matters that occur at trial; said court may look to extrinsic corroboration of the statement; a court may look to surrounding circumstances concerning the statement; or the court may look to all of these to determine trustworthiness.⁷¹

            Beaver is troubled by this approach.  He complains that with respect to the residual exception “a court need not be consistent in its standards.  The standard used can very easily be changed to meet the necessities of current political expediency or judicial whim. We have a container into which anything can be poured,”⁷² he contends.

            Such  criticism of the standards for allowing statements pursuant to the residual exception is flaccid. The appropriate position with respect to the question of standards is that espoused by Fenner who maintains that without some residual exception, a statutory set of rules of evidence simply would not work.⁷³ The pressure to admit hearsay evidence that does not fall under the fixed, specific exceptions would lead to one of two things: the evidence would not be admitted and injustice would be done, or one of the other exceptions would be misread to say that it does cover the evidence in question,⁷⁴ We should always remember that the Federal Rules are to be construed to secure fairness in administration and help to the development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.⁷⁵

            The standards for determining the circumstantial guarantees of trustworthiness  of residual statements must vary. In the cases reviewed herein decided since the 1997 amendment to Rule 807 we will find courts that admit residual hearsay because there is little likelihood of fabrication or inaccuracies with respect to the statements to admitted;⁷⁶ we will find a court that admits such out of court statements on the ground that they were business records produced by a defendant against his interest in litigation and thus trustworthy; ⁷⁷

            In the criminal area we will find courts that undertake extensive analysis to determine whether the residual hearsay statements were sufficiently detailed that they would have been difficult to fabricate, whether there was a lack of evidence of coercion, whether the declarants had personal knowledge of the events, a determination of how soon the statements were made after the event.⁷⁸ Other courts will look to whether the statements sought to be admitted pursuant to the residual exception were made under oath and subject to the penalty of perjury, whether such statements had been made voluntarily, and whether they contradicted previous statements by the declarants.⁷⁹ We will also see a court in criminal case which will examine whether the declarant was offered leniency in exchange for his statement, will examine whether the declarant attempted to shift blame from himself to the accused, will examine whether the declarant took full responsibility for his role in the offense, examine whether the declarant was caught “red-handed” and merely tried to share his blame by implicating another, and determine whether the declarant was given his Miranda rights.⁸⁰

            As Beaver notes, the courts need not be consistent in its use of standards.⁸¹ What is most important with respect to any residual exception analysis is the determination that such evidence, which might meet the standard of circumstantial guarantees of trustworthiness, is  evidence  offered as evidence of a material fact; that the evidence is the most probative evidence available on the point for which it is offered, that the interests of justice will be served by admitting the evidence, and whether there was notice of the evidence.⁸²

            One must bear this analytical framework in mind as we survey the recent cases in an effort to determine whether the residual hearsay rule is being abused.

 

            B.  NOTICE

            The notice requirement of Rule 807 is very important. What does notice mean? When and how must notice be given? The residual exception is not available unless offering counsel gives opposing counsel advance notice of his or her intention to offer the out of court statement, and the particulars of the statement, including the name and address of the of the out of court declarant.⁸³

            Rule 807 does not require pretrial notice of an intention to use Rule 807.  All it requires is notice of an intention to offer the particular statements; not notice of an intention to use any particular hearsay exception.⁸⁴ Once counsel has notified opposing counsel of an intention to offer the statement in question, then it can be offered under Rule 807.⁸⁵ The notice may be formal or less formal. Fenner reminds us the pretrial notice may be a document filed with court styled “Notice of Intention to Use Rule 807 Evidence,” or it may be a letter sent to opposing counsel stating an intention to introduce particular statements, including the names and addresses of the proposed declarants.⁸⁶

            The timing of the notice has been problematic.  Both Fenner and Beaver note that prior to the 1997, amendment some courts interpreted the notice requirement more in accord with the spirit of the law than with the letter of the law.  This often creates inconsistency in application of the notice requirement.⁸⁷  The rule provides that notice must be “sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the evidence.”⁸⁸ Fenner claims that some courts stress the “fair opportunity” part of the notice requirement over the “in advance of the trial or hearing” part.  He notes that one influential court has said that in cases where the need to use this exception does not become apparent until after the trial has begun, midtrial notice given enough in advance of the actual use of the evidence can satisfy the rule’s pretrial notice requirement.⁸⁹

            The cases surveyed herein reveal that variations of the flexible approach to notice requirement predominate.  Although this does not appear consistent with the plain meaning of the rule, we shall see that the interests of justice require such flexibility.  Even less formal notice is better than no notice.

            With this analytical framework in mind with respect to appropriate indicia of reliability and notice let us survey the recent cases relying on the residual exception to determine whether the rule is being abused.

 

IV. RULE 807 CASES IN THE FEDERAL COURTS

A. CIVIL CASES

            Since the 1997 amendment to the Federal Rules the residual exception was cited as an issue in seven civil cases in the federal courts. The cases come from the Second and Eleventh Circuit Courts of Appeal, federal district courts in the Eastern District of New York, and the district court for Puerto Rico. It will be clear from a review of these civil cases that judges are not abusing their authority with respect admitting unreliable hearsay pursuant to the residual exception.

            The Eleventh Circuit Court of Appeals gave short shrift to a plaintiff’s argument that the residual exception of Rule 807 should be admissible to allow hearsay of a dead witness to help substantiate her claim of copyright infringement. In  Herzog v. Castle Rock Entertainment⁹⁰ the plaintiff, Herzog, brought a copyright action against  the writer, director, producer, and distributor of the motion picture “Lone Star.” Plaintiff alleged that defendants infringed her copyright for a screenplay she had written entitled “Concealed.”⁹¹ The District Court granted defendant’s motion for summary judgment and Herzog appealed.  The Eleventh Circuit, relying on the district court’s opinion upheld the grant of summary judgment on the grounds that Herzog had failed to establish that Sayles, the writer director of Lone Star had had a reasonable opportunity to view her screen play and; the motion picture and screenplay were not substantially similar.⁹²

            Herzog’s burden was to show that her screenplay was a copyrighted work and that Sayles had copied it.  Herzog submitted a certificate of copyright for her screenplay to the court. The second requirement, proof of copying, she attempted to prove circumstantially by demonstrating that the person who copied the work had access to her copyrighted screenplay.⁹³

             Herzog averred that she had written the screenplay as a requirement for her Master Degree in film studies at the University of Miami.  She had given her screenplay to Cosford, one of her professors for review.  He had never returned it to her.⁹⁴  After “Lone Star” was released she learned that Sayles was an acquaintance of Cosford and that Sayles and Cosford had met for lunch in Miami during the time Cosford had her screenplay.⁹⁵  Herzog theorized that Cosford had shown Sayles her work.  By the time of the law suit Cosford had died and was, thus, unavailable to testify as to whether he had shown Sayles the screenplay.⁹⁶

            Herzog sought to introduce, under Rule 807, hearsay statements of Allegro, another Professor at the University of Miami.⁹⁷  Allegro testified at deposition that Cosford told him that he was reading Herzog’s screenplay and he found it interesting.⁹⁸ Allegro, further, testified that during this same time period Sayles was in Miami and Cosford came out of his office at the university and announced to Allegro that he was on his way to his home to pick up Sayles to take him to lunch.⁹⁹  Allegro, also, testified that he only inferred from Cosford’s statements that he was picking up Sayles at his home and that he had never actually saw Sayles and Cosford together.¹⁰⁰

            Courts cannot properly consider hearsay evidence in ruling on motions for summary judgement.¹⁰¹  Defendants argued that the proffered testimony of Allegro would be inadmissible hearsay. ¹⁰²  There were no equivalent guarantees of trustworthiness found in those conversations. The Eleventh Circuit Court agreed on the ground that Rule 807 requires the equivalent circumstantial guarantees of trustworthiness covered by exceptions in Rule 803 and Rule 804. The Court undertook the requisite analysis for circumstantial guarantees of trustworthiness and found that the conversations had taken place five years earlier and Allegro was vague and not precise or knowledgeable in his memory of the conversations.¹⁰³  This was hearsay of the worst kind.  The court found that even it such hearsay was admissible to show that Cosford had a copy of Herzog’s screenplay and that Sayles had stayed at Cosford’s home in 1993, said evidence did not establish that (1)Cosford had a copy of the screenplay with him when he met Sayles for lunch and that he allowed Sayles to see it and (2) that Sayles was not truthful when he averred he  had never heard of Herzog’s composition.¹⁰⁴  Also, there was no allegation that Cosford previously contributed creative ideas or material to Sayles.¹⁰⁵

            The hearsay was not admitted despite proper pretrial notice be given under the residual exception. No appropriate indicia of reliability could be found on the facts of the case. The Eleventh Circuit did not abuse its powers by allowing the admission of unreliable hearsay pursuant to the residual exception in Herzog.

            In Schering v. Pfizer¹⁰⁶ the Second Circuit found that although certain surveys offered by plaintiffs in a false advertising case called for statements concerning memory, this did not automatically preclude their admission under the residual exception of Rule 807.¹⁰⁷ The plaintiff, Schering, was a pharmaceutical company that produces Claritin, a prescription antihistamine.  UCB, a European pharmaceutical company, developed a competing product called Zyrtec.  UCB licensed Pfizer, a Delaware corporation to promote Zyrtec in the United States.¹⁰⁸ In 1996 Schering brought action against UCB and Pfizer alleging false advertising with respect to Zyrtec in violation of Lanham Act and a prior settlement agreement between the parties.¹⁰⁹

             At a 1998, hearing on a preliminary injunction plaintiff Schering sought to introduce five surveys concerning the marketing and sale of Zyrtec to doctors. Pfizer responded to the motion on grounds that the surveys were inadmissible as hearsay.¹¹⁰ The district court agreed and issued a written opinion disallowing the surveys for any purpose.  The trial court, also, denied the injunction.¹¹¹ Schering appealed.  The Second Circuit found that the surveys should have been allowed, vacated the judgment, and remanded the case for further hearing concerning the surveys concerning memory statements.¹¹²

            Five surveys Schering had sought to introduce called for more information than the 803(3)¹¹³ exception to the hearsay rule would allow.  The court found that those surveys went beyond the state of mind of those surveyed and called for memory or belief to prove the facts remembered or believed¹¹⁴. However, Pfizer had also sought to introduce the surveys under the residual hearsay exception.  The court examined the surveys and Rule 807 and found that the lower court had abused its discretion by not allowing admission of the surveys pursuant to the residual exception.  The Second Circuit held that the trial court had been in error to rule against the use of out-of-court memory statements to prove facts remembered.¹¹⁵

             The Court reminded us that “unlike Rule 803(3), which explicitly excludes from its purview memory statements offered to establish the facts remembered, the residual hearsay rule contains no such limitation.  There is a reason for this difference.  Almost any statement used to describe events that a speaker has experienced in the past can be characterized as a ‘memory,’ which is a presently-existing state of mind when it is conveyed. If such statements were admissible under Rule 803(3) to prove the fact remembered, parties could thus offer hearsay to establish almost any past fact, a result that would indeed mark the ‘the virtual destruction of the hearsay rule’…The residual hearsay rule, by contrast, escapes this problem by setting forth its own set of requirements, which included necessity and trustworthiness before it will allow for a statement’s admission.”¹¹⁶ The court held that memory surveys, in principle, may have greater circumstantial guarantees of trustworthiness than many other traditional exceptions to the hearsay rule, but that it was the methodological validity of the survey that had to be examined before a guaranty of trustworthiness could be assured.¹¹⁷

            In Schering the court found that there was long standing notice of the intent to introduce the surveys.  The Court, further, found that the surveys were trustworthy and necessary and concluded that “In the context of survey evidence, the interests of justice and the general purposes of the rules of evidence are generally best served by the admission of the surveys that meet these two criteria.¹¹⁸  A review of the case shows that the residual exception is not being abused in the Second Circuit, but instead, the exception is being put to a strong analytical process as to its application.

            In Rotolo v. Digital,¹¹⁹ the Second Circuit overturned a trial court judgment on the ground that the notice requirement of 807¹²⁰ had not been met. In the case plaintiff Rotolo brought a products liability case against Digital, alleging that she suffered repetitive stress injuries resulting from the use of their computer keyboard.¹²¹ Plaintiff presented evidence of her injuries and presented evidence from medical witnesses to bolster her claim.¹²² Rotolo’s attorneys also came into possession of a videotape made by Apple Computer Corporation.  The tape which was received in evidence contained the voice and images of three Apple consultants who asserted and emphasized  the existence of a possible causal connection between computer keyboard use and repetitive stress injury. Digital objected to the introduction of the videotape as hearsay.¹²³

            The Second Circuit agreed that the videotape contained inadmissible hearsay and vacated judgment and remanded the case.¹²⁴ The Court found that the consultants that appeared in the videotape, two identified as physicians and one as an engineer were unsworn witnesses, whose qualifications were not expounded upon or subjected to cross-examination.   Rotolo’s counsel had informed the trial court that he was not offering the videotape because it was publicly available but offered it “as appropriate and compelling state of the art proof as to what could be known.”¹²⁵ The Court held it was error to admit the report. Before a defendant who has never seen an unpublished report that is not part of the published literature can be said to have non-hearsay notice, it must be shown that the defendant “was at least inferentially put on notice by the report.”¹²⁶  Digital presented proof that it had no such notice of the report or that they should have seen it as a part of the published literature on the industry.¹²⁷

            The court held a rule 807 residual exception inapplicable to the videotape evidence because the advance notice of intent to use that section was not used.¹²⁸  The Court further found that the district court…”misadvised the jury that it might consider the videotape evidence of ‘what might have been made available to these defendants [sic] and what was in the field to show what their state of mind was or should have been….Simply put, the Apple videotape was inadmissible hearsay”.¹²⁹ No notice no residual exception.  No abuse there.

            Rotolo v. Digital was decided on July 24, 1998.  A month earlier the same company, Digital, had not fared as well in a similar case heard in the  District Court of the Eastern District of New York.  On June 8, 1998, plaintiffs prevailed in the case of Gonzalez v. Digital.¹³⁰  Much of that case concerned the Rule 807 residual exception.  Although notice was also at issue,  the court in Gonzalez reached a result opposite that of the court in Rotolo.

            In Gonzalez a number of plaintiffs had sued Digital claiming that their upper body, arm, or hand problems had been caused by repeated use of Digital’s computer keyboards and that they had not been properly warned by Digital of the possibility of such injury.¹³¹ Plaintiffs sought to introduce documents and two videotapes, one produced by IBM and the other produced by Apple Computer which addressed the comfort disorders of keyboard users.  Digital moved to exclude such evidence, alleging among other reasons, that it was hearsay.¹³²  The district court found that the proffered evidence was relevant to the proceedings on the theory that evidence of the current state of mind of large producers in this industry was relevant.¹³³  It allowed the inference that given the then state of the art, members of the industry as a whole had, or should have had, the same “state of mind” with respect to possible users that needed to be considered by each of the manufactures even though they were operating separately.¹³⁴  Since Digital had a duty to keep abreast of scientific knowledge, discoveries and advances it was presumed to know what was imparted thereby.¹³⁵ Thus the documents and videos were deemed relevant.

            The court ruled that with respect to the hearsay objection to the evidence that such documents would be admitted pursuant to the residual exception.¹³⁶  The Court specifically found that the notice requirement of 807 had been met for Digital had notice for an extended time – a whole year and one half prior to trial –  that the evidence had been proposed.¹³⁷  The court also found that the proffered evidence offered evidence of a material fact and the internal materials were highly probative.¹³⁸  The court further found that the general interests of justice and the standards of trustworthiness had been met in the case.  The court maintained that the fear of fabrication or of inaccuracies inherent in much hearsay was unfounded because these videos had been created for legitimate business reasons and were less likely to have been fabricated than would testimony of a live witness.¹³⁹  The court also found that with respect to inaccuracies, the videos were more likely to be more accurate than a live witnesses because they were created internally and with great care.¹⁴⁰  The court did not find the inability to cross-examine with respect of the videotapes compelling because Digital could call its own experts or those who created the videotapes to refute contentions of notice.¹⁴¹

            The court allowed admission of the documents and videotapes under the residual rule to show the state of mind of other producers in the industry on the issue of notice.¹⁴² Though notice was informal in this case, the court found that a proposal made by plaintiffs to use the evidence a year and a half prior to trial met the notice requirement.  This stands in stark contrast to Rotolo where there was no advance notice of the intent to use the evidence. Again, in Gonzalez, the district court followed a well reasoned analytical framework to determine whether the evidence bore adequate circumstantial guarantees of trustworthiness and that there was proper notice.  Such analytical approach to admitting evidence pursuant to the residual  exception should put to rest fears by Beaver and others  that the residual exception will swallow the hearsay rule.

 

            In Vasquez v. National Car Rental,¹⁴³ the district court in Puerto Rico held that a statement by a driver in an auto accident was not admissible under the Rule 807 residual exception.  Mr. and Mrs. Lopez had rented a car from defendant at Puerto Rico’s international airport on December 26, 1997. Shortly thereafter they were in an auto accident with another vehicle driven by Gonzalez.  Mr. Lopez, the driver of the rented vehicle died several days later as a result of his injuries.  Mrs. Lopez, the passenger was, also, injured and subsequently died.  Suit was brought pursuant to a diversity action by Mrs. Lopez’s daughters, the Vazquezs.¹⁴⁴  Plaintiffs sued National because under Puerto Rio Law the owner of a leased vehicle is accountable for its lessee’s negligence.¹⁴⁵

            National sought admission into evidence of certain portions of Ms. Vazquez’s deposition testimony in which she described Mr. Lopez’s utterances right after the accident.  According to plaintiff, Vasquez, her mother  told her that immediately after the accident Mr. Lopez uttered to her the words “What hit us?”¹⁴⁶  National offered this evidence because it cast doubt as to who hit whom. National argued that because Mr. Lopez did not explicitedly say that he ran a red light or was negligent in his driving there was uncertainty as to whether he was negligent.¹⁴⁷ Under Puerto Rico Law defendant’s liability hinged on the driver’s (i.e. lessees’ liability).¹⁴⁸  If National could prove that Mr. Lopez was not driving negligently defendant would not be liable. National acknowledged that such statement would be hearsay but sought to have it admitted under the residual hearsay rule.¹⁴⁹

            The court reviewed Rule 807 and the facts and found that there was adequate notice of intent to use the statements.  Yet, the court did not allow the hearsay evidence on the grounds that the evidence fell below the threshold of trustworthiness required by the Rule.  The court found that even though in the hospital, the circumstances that surrounded Mr. Lopez’s remarks did not assure the Court that he was under a condition that would still his capacity of reflection or that he was under any pressure to tell the truth.¹⁵⁰  The Court found further that defendant had failed to prove that Mr. Lopez had reliable knowledge of the events that transpired on the night of the accident.  Ms. Vazquez in her deposition testified that Mr. Lopez was not clear as to the events that transpired, and that he really did not recall what happened.¹⁵¹  The Court disallowed the evidence and said it could not rely on an individual’s account of an event if that individual acknowledged that he did not recall the specifics of the event,¹⁵² as had Mr. Lopez.

            Mr. Lopez’s lack of recall would not support a finding for the court that would guarantee a finding  of trustworthiness to his statements.  In accord with our analytical framework the court found  no support to substantiate appropriate indicia of reliability for his statements. To keep such evidence out was the correct decision.  Here the hearsay rule prevailed. Critics have little to fear about the use of the residual exception when a court explains it’s analysis of the circumstantial guarantees of trustworthiness as in Vasquez. The hearsay rule prevails despite the residual exception.

            In the case of Chase Manhattan Bank v. Traffic Stream (BVI) Infrastructure Limited,¹⁵³ the court allowed admission, pursuant to the residual exception, into evidence of a news article that had appeared in a Chinese newspaper. In 1998 Chase Bank, acting as a trustee and Traffic Stream had entered into an indenture agreement in which Traffic Stream issued secured notes to finance a business venture involving the construction of toll roads in China.¹⁵⁴  In 1999, plaintiff Chase commenced litigation contending that Traffic Stream had defaulted on payment. Chase sought summary Judgment.  Defendant Traffic admitted default but argued that its default should be excused pursuant to the contract doctrine of impossibility of performance¹⁵⁵.  Traffic Stream contended that a change in Chinese policy delayed recoupment of money from the toll road projects, making it impossible for them to fulfill their obligation under the indenture.¹⁵⁶

            The facts of the case reveal that in the wake of the 1997 Asian financial crisis, the Chinese government had taken steps to strengthen its supervision of disbursement of foreign exchange involving Chinese companies doing business with foreign partners.¹⁵⁷ On September 13, 1998, the Chinese State Administration of Foreign Exchange gave notice of its change in policy.  The notice was a confidential document of the Chinese government that had not been publicly released.¹⁵⁸  However, news of the notice appeared in the People’s Daily, the official newspaper of the government on September 18, 1998.¹⁵⁹  Traffic Stream maintained that it was this change in foreign exchange supervision that made it impossible for them to perform.

            Chase objected to the introduction of the newspaper article on grounds that it was hearsay.¹⁶⁰  The court agreed that the Chinese newspaper article was hearsay but found the article admissible pursuant to the residual exception of Rule 807. The court found that Traffic Stream had given chase adequate notice of its intention to introduce the article.¹⁶¹  Perhaps, more importantly, the court found the newspaper article had been offered as evidence of a material fact, namely a change in Chinese policy which could have rendered Traffic Stream’ s performance under the indenture impossible.¹⁶²  The court, also, found that the article was the most probative evidence of the notice of change of policy that Traffic Stream could reasonably procure, because the notice itself had not been publicly released by the Chinese government.¹⁶³  Similarly, the court found because the notice itself was unavailable, the interests of justice would be served by the admission of the newspaper article.¹⁶⁴  The court further found with respect to Rule 807 the People’s Daily newspaper article had a sufficient guarantee of trustworthiness in that was published by the Chinese Communist Party Central Commission and was deemed to be authoritative and representative of the official opinion of the Chinese government.¹⁶⁵

            Although the article was admitted as evidence, Chase was ultimately granted summary judgment on the claim.¹⁶⁶  Nevertheless, the court gave a well reasoned analysis as to why the evidence should be found admissible pursuant to the residual exception. There had been adequate notice of the intent to use the newspaper article. And. There was a thoroughgoing analysis of the circumstantial guarantees of trustworthiness that surrounded the introduction of the article.  There was no abuse to the  traditional hearsay rule in this case.

            In John Paul Mitchell Systems  v. Quality King,¹⁶⁷ the residual exception was used to allow introduction of certain business records at a hearing on an injunction.  In this case John Paul Mitchell sought a preliminary injunction restraining the distributor Quality King from selling over a million dollars of Paul Mitchell hair care products.¹⁶⁸  Allegedly these products had traveled to China for distribution, but were diverted to Holland and then back to Quality King’s Long Island, New York warehouse.  John Paul Mitchell sought an injunction against Quality King in order to prevent irreparable damage to its exclusive salon only distribution policy.¹⁶⁹ In order to prove its case John Paul Mitchell sought introduction of business records of the company which it arranged to sell its products in China.  This was the firm, China Marketing & Distribution (CDM), a company John Paul found was defrauding it by diverting products from the Chinese market where it would be sold only in salons to other wholesalers who intended sale to direct retailers.¹⁷⁰  Quality King objected to introduction of the CDM business records on the ground that they were not authenticated.¹⁷¹

            The court found, pursuant to Rule 901(b)(1),¹⁷² that the document authentication requirement in this case was satisfied by the document’s form and content, taken together with other circumstances that indicated reliability of the documents.¹⁷³ Thus authenticated, the court found the documents admissible pursuant to  the residual exception because the records were particularly trustworthy.  In its analysis the court found that the trustworthiness of the documents was established by the facts that they were produced by the president of CDM against his interests in the litigation.¹⁷⁴ The court also found that the issue of whether the Paul Mitchell product was sold and shipped to Quality King was material to the litigation, and the documents were probative of the fact that CDM believed the product was shipped from its warehouse in China to Rotterdam.¹⁷⁵ The court further found that the documents were the most probative evidence available of the route the goods followed.¹⁷⁶  The court sound further still that Quality King had sufficient notice of the documents, as demonstrated by Quality King’s motion in limine to exclude them.¹⁷⁷  In the final analysis, the court found that it was in the best interests of justice to admit the documents.¹⁷⁸

            Although the documents were admitted pursuant to the residual exception John Paul Mitchell’s motion for preliminary injunction was denied.  The court found that it did not have the power to issue an injunction on a replevin claim.¹⁷⁹  Again, there appeared to be no abuse by the court of the residual exception in this case. 

            The foregoing has been a survey of the federal civil cases found since the 1997 amendment of Rule 807.  It does not appear from a review of these cases that there should be fear that the use of the residual exception is being abused.    In Herzog and Vasquez the courts did not allow statements pursuant to the exception because they could find no circumstantial guarantees of trustworthiness to the statements in question.  In Rotolo the statements were disallowed by the appeals court because adequate notice of the intended use of the evidence had not been given prior to trial by the plaintiffs. In Schering, Gonzalez, Chase Bank and John Paul Mitchell both the notice requirements and the requirement of circumstantial guarantees of trustworthiness were found to be adequate.  However, admission of such hearsay pursuant to the residual exception seldom determined the ultimate outcome of the case.

             Let us now turn to the federal criminal cases involving the residual exception since the 1997 amendment.  We will see that the analytical framework is just as important as in the civil cases, if not more so.

 

B. CRIMINAL CASES

            Since the 1997 Amendment the residual exception has been reported in federal criminal cases in numbers that are small. No more than eight such cases have been found.  This is approximately equal to the number of civil cases in which the exception was either mentioned or reported in federal civil cases during the same time period.  Although anecdotal, this provides further evidence that the residual exception is not being abused by the federal courts as a way of allowing inadmissible hearsay into evidence. The cases reported on herein come to us from the Second, Fourth, Fifth, Eighth and Ninth Circuit courts of appeals.

            The introduction of hearsay statements in the context of criminal cases, whether federal or state must be assessed in the light of defendant’s right to confrontation under the Sixth Amendment.¹⁸⁰  The Confrontation clause does not operate as an absolute ban on hearsay evidence.¹⁸¹  If the declarant is unavailable and the statement bears adequate indicia of reliability hearsay declarations may be received into evidence without violating a defendant’s right to confrontation.¹⁸²   The indicia of reliability requirement can be met either of two ways: (1) where the hearsay statement falls within a firmly rooted hearsay exception; or (2) where it is supported by a showing of particularized guarantees of trustworthiness.¹⁸³

            In U.S. v. Sanchez-Lima,¹⁸⁴the Ninth Circuit reversed the conviction of Sanchez-Lima for assault on a federal officer and determined that evidence he sought to admit at trial under the residual exception should have been admitted.  In 1996, Sanchez-Lima, an alien, and others illegally entering the U.S. from Mexico were arrested two miles east of the Otay Mesa port of entry by border Patrol Agents.¹⁸⁵  At the time of his apprehension Sanchez-Lima struck an agent with a rock. Defendant was arrested for assault on a federal officer in violation of 18 U.S. C.  §111.¹⁸⁶  At trial Sanchez-Lima asserted a self defense claim alleging he had been pistol whipped by the federal officer before striking him.¹⁸⁷

            In all, the Border Patrol agents apprehended twenty-two aliens that night.  The Border patrol and the FBI interviewed and videotaped all of these aliens the night of their apprehension.  At trial Sanchez-Lima alleged that these interviews contained evidence in support his self defense theory. The remaining aliens were deported on May 29, 1996.¹⁸⁸ The trial court did not allow admission of the videotaped statements.

            On appeal Sanchez-Lima asserted that the failure to admit the videotaped interviews pursuant to the residual exception denied him his Sixth Amendment right to present a defense.  The Ninth Circuit agreed.¹⁸⁹  That Court reviewed Rule 807 and determined that the videotaped statements contained circumstantial guarantees of trustworthiness and met the other criteria of the rule.  The government had adequate notice of the intended use of the evidence. The Court found the statements were trustworthy because the declarants statements (1) were under oath and subject to the penalty of perjury; (2) the statements were voluntary;(3) the statements were based on facts within their own personal knowledge; (4) the statements did not contradict any previous statements to government agents or defense investigators; and (5) the testimony was preserved on videotape for the jurors to view their demeanor.¹⁹⁰  The Court also found that the government had the opportunity to develop the testimony of these witnesses and had notice of the videotapes.¹⁹¹  The Court further found that the videotaped statements constituted evidence of a material fact regarding Sanchez-Lima’s self defense theory. Finally, the Court found that these statements were more probative than any other evidence which could be procured by reasonable efforts.¹⁹²

            In refusing to admit the sworn videotaped statements the district court effectively prevented Sanchez-Lima from exercising his Sixth Amendment right to present a defense.  The decision appears well reasoned and does no abuse to the hearsay rule.

            In U.S. v. Bryce,¹⁹³ the Second Circuit reviewed Bryce’s convictions for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine. The convictions grew out of law enforcement surveillance of persons suspected of narcotics trafficking.¹⁹⁴  Agents intercepted and recorded seven telephone conversations between Bryce and his co-defendant Johnson and one conversation between Johnson and another individual named Gomez.¹⁹⁵

            During the Bryce and Johnson conversations Bryce arranged to sell cocaine to Johnson.  Johnson, in turn telephoned Gomez and informed him that Bryce was selling cocaine.¹⁹⁶  Johnson and Gomez expressed concern during the conversation that the price quoted would depress the price in other transactions.  Nevertheless, after discussing matters with Gomez Johnson called Bryce back and said he would buy two kilograms of cocaine.¹⁹⁷  Johnson and Bryce agreed to meet in fifteen minutes.  The meeting never took place, because Bryce called Johnson several hours later to say he had only one left. Johnson pleaded with Bryce to sell him the one kilogram.¹⁹⁸  Bryce agreed and they arranged to meet later the day.  This meeting never happened because Johnson called Bryce five days later and asked if he still had the cocaine.¹⁹⁹  Bryce indicated that he did and they agreed to meet.  Several days later Johnson was arrested.  Soon thereafter, Bryce was also arrested.²⁰⁰ No evidence of the cocaine itself was presented at trial.

            On appeal Bryce challenged his conviction on, among other grounds, that the taped telephone conversation between Johnson and Gomez in which Johnson repeated Bryce’s claim that he had cocaine for sale and had distributed it to others was inadmissible hearsay.²⁰¹ The district court had admitted the telephone conversation pursuant to the residual exception of Rule 807.

            The Second Circuit in analyzing the rule and the facts found that Bryce did not dispute that the statements in the Johnson Gomez tape were not material, that the declarants were unable to testify, or the government complied with the notice requirement of the rule.²⁰² The Court found that Bryce’s objection was that the admission of the tape violated his Sixth Amendment confrontation rights and therefore could not have been deemed to advance the interests of justice.²⁰³ The Court believed that the resolution of the of the argument was linked to trustworthiness.  The Court found that the Johnson Gomez tape had a high degree of trustworthiness.²⁰⁴

            The Second Circuit had already held in U.S. v. Mathews²⁰⁵ that:

 

Ordinarily a confession of an accomplice resulting from formal police interrogation cannot be introduced as evidence of guilt of an accused, absent some circumstance indicating authorization or adoption.  On the other hand, if the statement is made to a person whom the declarant believes is an ally rather than a law enforcement official, and if the circumstances surrounding the portion of the statement that inculpates the defendant provide no reason to suspect that the inculpatory portion is any less trustworthy than the part of the statement that directly incriminates the declarant, the trustworthiness of the portion that inculpates the defendant may well be sufficiently established that its admission does not violate the Confrontation Clause.²⁰⁶

 

            Under this theory the Court found that the Johnson Gomez tape did not violate Bryce’s Confrontation rights.  The Court specifically found (1) the statements were obtained via a covert wiretap that neither Johnson nor Gomez was aware; (2) the statements were made during the same time period that Johnson was conversing with Bryce; (3)Johnson’s statements implicated both himself and Bryce as participants in a narcotics conspiracy; and (4) Gomez was Johnson’s colleague in the narcotics trade.²⁰⁷ Based on these factors the Court found there was little reason to believe that Johnson and Gomez had any motive to lie, or were lying.²⁰⁸ With this analysis the Court found the admission of the tape was proper under both Rule 807 and the Confrontation Clause. Here the court rightfully looked to the surrounding circumstances of Bryce’s drug activities to find support for the appropriate indicia of reliability that made the statement trustworthy. With such analysis it is unlikely that the residual exception will swallow the hearsay rule.

            Ultimately, the Second Circuit upheld Bryce’s conspiracy conviction, but reversed the possession with intent to distribute cocaine conviction on the ground that there was no corroborating evidence that Bryce actually did possess cocaine on the dates specified in the indictment.²⁰⁹

            In U.S. v. Papajohn,²¹⁰ the Eight Circuit found that use of the grand jury testimony of an unavailable witness admitted pursuant to the residual exception in an arson and conspiracy trial was proper. Ms. Papajohn and her husband, Donald Lee Earles were suspected of burning down their convenience store in order to gain insurance proceeds.²¹¹  A grand jury was convened before which Mr. Earle’s son, Donnie, testified three times.²¹² During Donnie’s first grand jury appearance, he testified that he did not know who burned down the store.  During his second grand jury appearance, he changed his story, stating that Ms. Papajohn and his father conspired to burn down the store for the insurance money.²¹³  During Donnie’s third grand jury appearance, he claimed his Fifth Amendment right to remain silent and refused to testify. ²¹⁴

            At the subsequent trial of Papajohn and Earles, Donnie again refused to testify.²¹⁵  The trial court declared Donnie an unavailable witness and allowed the government, over objections of the defense, and pursuant to the residual exception to the hearsay rule to read to the jury portions of the transcripts of all three of  Donnie’s appearances before the grand jury.²¹⁶  The jury convicted both defendants.²¹⁷

            On appeal, Papajohn argued that she should be granted a new trial on the basis of the Supreme Court’s holding in the case of Lilly v. Virginia.²¹⁸  In Lilly the Court held that the admission of a nontestifying accomplice’s confession violated the defendant’s right to confront his accuser.²¹⁹  However, the Eight Circuit distinguished the facts of Lilly:

…Donnie was never arrested or charged with a crime.  The obvious incentive that the captured accomplice in Lilly had to shift blame is not present in our case. 

We recognize that although Donnie was not charged with a crime at the time he made the statements, he might still have had some incentive to blame [defendants ], so that he would not be later charged with the arson.  It seems to us, however, that it can almost always be said that a statement by a declarant that incriminates another person in a crime will make it less likely that the declarant will be charged with the crime….We also find that the conditions under which the disputed hearsay statement was made in our case differ significantly than in Lilly.  In Lilly the accomplice’s statements were made in response to leading police questions, asked during custodial interrogation that took place very late at night, shortly after his arrest.²²⁰

 

            The court in Papajohn found that the grand jury testimony satisfied the requirement of having  equivalent circumstantial guarantees of trustworthiness required of Rule 807. The court found that Donnie’s testimony had been (1) given in a formal proceeding; (2) under oath;                       (3) before a grand jury.²²¹  Also, (4) Donnie was not in police custody, (5) nor had he been charged with any crime at the time the testimony was given.²²² Further, (6) he had been asked non-leading questions by the government, and (7) he answered them with lengthy narratives.²²³ Papajohn’s convictions were affirmed by the Eighth Circuit.²²⁴

            The Eight Circuit’s analysis of the appropriate indicia of reliability factors supporting residual exception as it applied to this situation does no harm the hearsay rule.  It is difficult to argue abuse of the hearsay rule here.

            In U.S.  V. Brothers Construction,²²⁵ the Fourth Circuit reached an opposite result with respect to grand jury testimony that had been admitted pursuant to the residual exception. Brothers Construction Company of Ohio and Tri-State Asphalt Corporation were convicted of conspiracy to defraud the United States,  mail fraud, and with making false statements to the government.  Their trial and convictions grew out of a scheme whereby the two companies falsified records in connection with obtaining highway construction subcontract work in the state of West Virginia.²²⁶ Specifically, the companies obtained federal highway money to comply with the development of “disadvantaged business enterprises”(“DBEs”).  However, no disadvantaged business employees ever performed any of the subcontract work.²²⁷

            Robert Samol, an officer and in-house counsel for Tri-State, had testified in the grand jury investigating the case that prior to sending the state a  letter of certification of the company meeting its DBE goals under its subcontract he learned that there had never been an independent DBE work force.²²⁸  At trial Samol invoked his rights under the Fifth amendment and refused to testify.²²⁹ The trial court determined that Samol was unavailable and concluded that his grand jury testimony was sufficiently reliable. The court admitted the grand jury testimony pursuant to the residual exception.²³⁰  On appeal both Brothers and Tri-state asserted that it was improper to have allowed the grand jury testimony read to the jury.²³¹ Here, the Fourth Circuit agreed.

            The court observed that the nature of grand jury testimony provided some indicia of trustworthiness because it was given in the solemn setting of the grand jury, under oath and the danger of perjury, and in the presence of jurors who were free to question and assess credibility, and a court reporter made an official transcript of the proceedings did not make grand jury testimony per se reliable.²³²

              The Court held that with respect to grand jury testimony they were still required to consider the totality of the circumstances of the testimony for particularized guarantees of trustworthiness.²³³

            In considering the totality of the circumstances in this case the Court found that Samol’s grand jury testimony was suspect.  During the oral argument of the case the government acknowledged that after Samol’s appearance at the grand jury, the government had begun an investigation to determine whether Samol had committed perjury through the same testimony that the government sought to introduce.²³⁴ The Court held that it had serious reservations about the reliability of testimony which, at least in part, the government found so untrustworthy that it would consider bringing a perjury charge.²³⁵  As a result, the Court concluded that Samol’s grand jury testimony was not properly admitted pursuant to the requirements of the residual exception. Such reasoning is similar to that used by the district court in Puerto Rico in the Vasquez case that found Mr. Lopez’s memory problems a weak foundation for the admission of statements pursuant to the residual exception. The determination to not admit the grand jury testimony in Brothers was the correct one and not in conflict with Papajohn when all of the circumstances are analyzed.

            Although the court found that the admission of the grand jury testimony against Brothers was an error, they found it to be harmless error.²³⁶  The Fourth Circuit found that there was other sufficient evidence to affirm the convictions of both Brothers and Tri-State.²³⁷

            In U.S. v. Phillips,²³⁸ the Fifth Circuit found that the trial court did not abuse its discretion in refusing to apply the residual exception to admit alleged exculpatory statements of a witness proffered by defendants.²³⁹ The case involved convictions on several schemes of local corruption involving ghost employees, payment of salary kickbacks, and misuse of state government funds by Phillips, the tax assessor for St. Helena Parish, Louisiana, and Newman, a friend and political supporter who owned the largest hardware store in the Parish.²⁴⁰

            Phillips and Newman were involved in many schemes. The Fifth Circuit found that the salient scheme for purposes of the review of the use of the residual exception involved Phillips, Newman, and Newman’s wife, Jean, who was deceased by the time of trial.²⁴¹  Starting in 1990, Phillips put Newman and his wife on the tax assessor payroll at a salary of $800 per month and health benefits.²⁴²  The health benefits were important because Jean had been diagnosed with cancer.  Jean subsequently died of cancer in 1992.²⁴³  She remained on the tax assessor payroll until one month prior to her death.²⁴⁴  Facts at trial showed that over the time period of this scheme Newman kicked back most of their $800 a month salary to Phillips, less what was need to pay federal taxes at the end of the year.²⁴⁵ Evidence at trial showed that Newman and his wife did little or no work for the tax assessor.²⁴⁶

 

            At trial defendants sought to admit exculpatory statements made by Jean Newman to her friend Margaret Carter to show that she was working for the assessor’s office.²⁴⁷ The trial court would not admit the statements under the residual exception.  If she been allowed to testify defendants maintain that Carter would have testified that one day, while in the hardware store, she noticed Jean working with several pieces of paper.  When Carter inquired about the nature of the paperwork, Jean allegedly responded that she was working on a project for Phillips that had something to do with land.²⁴⁸

            The Fifth Circuit, in a footnote, enumerated the requirements of Rule 807, and then held:

The passing comment made by Jean concerning employment is arguably vague.  It may be correct that Jean would have no reason to lie in making a passing comment to a casual acquaintance concerning the nature of any paperwork she was doing.  It may also be correct, however, that Jean’s motivation to lie – her desire to maintain the favorable status of her pseudo-employment for the purpose of receiving health coverage – was so strong that any statements made concerning her supposed employment with the assessor’s office cannot be trusted. ²⁴⁹

           

            The Court found that regardless of which option seemed more persuasive, neither presented a definite and firm conviction the district court made a clear error of judgment by excluding the statements.²⁵⁰  As such, the Court did not disturb the ruling of the trial court with respect to the hearsay exclusion.  Again, good analysis by the court of the circumstances and motivations for the proffered statement found that there was inadequate indicia of reliability to support the trustworthiness of the statement.

            Can one find abuse of the residual exception with respect to any of these federal criminal  cases?  Of course not.  The federal courts have used good analysis and common sense in assessing the equivalent guarantees of trustworthiness required of evidence admitted under Rule 807. In Sanchez-Lima, Bryce, and Papajohn the court found equivalent guarantees of trustworthiness for the statements after thoroughgoing analysis. In Brothers and Phillips analysis by the courts showed that the admission of the statements sought to be admitted were unreliable and not supported by equivalent guarantees of trustworthiness.  Although the standard used to reach the decision to admit the evidence pursuant to the residual exception was different, it appears that such decisions were solid and reasonable in each case,

              Let us now turn our attention to the various states who since 1997 have reported cases that involved the residual exception.  Could it be that state courts are abusing the hearsay rule by its overindulgent use of the residual exception?  The evidence from the cases says no.

 

IV. THE  RESIDUAL  EXCEPTION  IN  STATE  COURT  CASES

 

A. CIVIL CASES

            Our search of the reported use of the residual exception in state cases since 1997, yielded only a small number of such reports in civil cases.  Such cases were reported from the states of Colorado,²⁵¹ Delaware,²⁵² and Arkansas.²⁵³ A review of these cases shows that fears of the residual exception in state court cases swallowing the hearsay rule as we know it is highly unlikely.  The judges in the state courts appear to be very careful with respect to the admission of hearsay pursuant to the residual exception.  These judges use the same analytical framework of seeking to determine whether there are appropriate indicia of reliability to give the statements trustworthiness.  These same judges seek to determine whether there has been proper notice of intent to use the exception.

            In the Colorado case, Board of County Commissioners of Adams County v. City and County of Denver,²⁵⁴ the Colorado Court of Appeals upheld the introduction by plaintiffs, pursuant to the residual exception to the hearsay rule, of a study prepared for Defendant. The case involved a breach of contract action brought by the county concerning excessive noise levels by the defendant City of Denver’s airport.²⁵⁵ The study, prepared for Denver, showed that a sixth runway would increase noise levels.²⁵⁶   The court found the report was probative of the validity of Denver’s defenses ands that it was not inherently unreliable.²⁵⁷  Plaintiff county ultimately prevailed and received damages for the excessive noise.²⁵⁸

            The admission of hearsay statements were, also, admitted pursuant to the residual exception in a Delaware case.  In Juran, et al. v. Bron, et al.²⁵⁹ the Delaware Court of Chancery reviewed the trial of plaintiffs and defendants involved in a partnership venture.  Plaintiffs alleged fraud and breach of fiduciary duty against defendants.²⁶⁰  The court trial court had admitted into evidence a conversation of the son of one of defendants that went to the heart of the plaintiff’s fraud, bad faith, and fiduciary duty claims.²⁶¹  The Appeals Court upheld this ruling finding that the statements had circumstantial guarantees of trustworthiness.  The Court found that in an action for fraud and breach of fiduciary duty where few nonparties have knowledge of the facts, statements by a witness in a position to know the truth should be admitted.²⁶²

            Lincoln v. AAA Bail Bond Company²⁶³ was an Arkansas case where the introduction of evidence pursuant to the residual exception was found to be reversible error. In Lincoln appellant Lincoln brought suit to collect unpaid commissions he claimed to have earned prior to his termination.²⁶⁴  A judgment, however, was entered in favor of the appellee bail bond company.²⁶⁵  The Court of appeals reviewed the admission an exhibit relied upon by appellee to show that Lincoln owed the company money. The exhibit was a list concerning accounts receivable which allegedly reflected monies collected by Lincoln but not turned in to the company.²⁶⁶

              The Court of Appeals found the introduction of this evidence was  inadmissible under the residual exception.²⁶⁷  They held that the list had not been prepared in the regular course of business, but was prepared for a special purpose  — to show the court Lincoln owed the company money.²⁶⁸  The court also found that the source of the information contained in the exhibit lacked trustworthiness, since the information was provided by criminal defendants who had the incentive to inflate the amount of monies paid so as to reduce their own debts.²⁶⁹

            Each of these state courts was cognizant and discerning of the requirement that there be circumstantial guarantees of trustworthiness before evidence could be admitted under the residual exception. Although these state cases are far less analytical than those reported from the federal courts, they all articulate in a well reasoned way the reason the hearsay statements were admissible or inadmissible.  Again, in these states there should be no worry that the residual exception will swallow the hearsay rule.  It is clear the state court judges in the civil cases reported on here have not abused their power with respect to the residual exception.

 

B.  CRIMINAL CASES

            Let us now briefly examine the state criminal law cases reported since 1997, which have involved the residual exception. The state courts must often balance the residual exception against a defendant’s confrontation rights.  A review of the state criminal cases shows that such state courts are very careful concerning admission of hearsay pursuant to the residual exception.

            In Arkansas the Court of Appeals of that state have upheld trial judges’ refusal that a defendant be allowed to admit hearsay pursuant to that state’s residual exception on several occasions.  In Clark v. Arkansas,²⁷⁰ the defendant, on trial for murder, sought to introduce statements through a police detective who had allegedly heard that other persons had bragged to confidential police informants that they, and not defendant had committed the murder.²⁷¹  The trial court and the Appeals court found no guarantees of trustworthiness to such alleged statements and excluded the evidence.²⁷²

            In Bilyeu v. Arkansas,²⁷³ the Court of Appeals again upheld the trial court’s refusal to admit statements pursuant to residual exception.  Bilyeu, on trial for the death of his girlfriend’s nineteen month old son sought to introduce a diary, purportedly written by the girlfriend to show that he could not have killed the child on the day in question.²⁷⁴ The courts found that since the diary was unsigned and undated that it did not contain equivalent guarantees of trustworthiness required by the state’s residual exception.²⁷⁵

            In Williams v. Arkansas,²⁷⁶ defendant’s attempt to introduce hearsay through the residual exception also failed.  In this murder and kidnapping case Williams gave a statement concerning his involvement in the crimes at the time of his arrest.²⁷⁷  He later made a different and less inculpatory statement to Country detectives prior to trial.²⁷⁸  At trial the state introduced, in its case in chief, only Williams’ first statement.  Williams sought to introduce his second statement.  The court ruled that it was inadmissible under the residual exception because there was no guarantee of trustworthiness to this second statement which Williams made after a co-defendant had implicated him.²⁷⁹  The court contended that Williams had every reason to give detectives a self serving statement to minimize his participation in the crimes.²⁸⁰

            The Arkansas cases show that there is little likelihood that the residual exception will swallow the hearsay rule or that judges there are abusing the use of the exception. In Clark, Bilyeu or Williams none of the defendants could show the requisite indicia of reliability surrounding the statements they proffered to make one believe that they were trustworthy.

            In Colorado v. Meyer,²⁸¹ the court of appeals of that state upheld the prosecution’s right  to introduce, pursuant to the residual exception, a verified complaint to obtain a restraining order sworn out by the murder victim against defendant.²⁸²  The Court found that the complaint possessed sufficient indicia of reliability as a court document, and that the victim had little reason to fabricate.²⁸³  In that the statement possessed the necessary guarantees of trustworthiness, admission of the statement did not violate defendant’s right of confrontation.²⁸⁴

            In Delaware v. Anderson, et. al.,²⁸⁵ the court did not allow the prosecution to introduce, pursuant to that state’s residual exception, statements made by the victim in a felony murder case while he was in the hospital.  The victim gave three statements concerning the identity of the defendants before he died.²⁸⁶  The court found that over the course of the victim’s hospitalization he suffered nightmares and hallucinations.²⁸⁷  The court, also, found that over the course of the hospitalization the victim discussed the case with numerous people.²⁸⁸  The court maintained that such facts raised doubts as to whether the proffered statements against defendants came from the victim’s unaided memory.²⁸⁹  Lacking particularized guarantees of trustworthiness, the court excluded the statements because to admit them would have deprived defendants of their right to confrontation.²⁹⁰

            In an earlier case, Delaware v. Bowe et. al.,²⁹¹ the court had reached a similar finding with respect to the in hospital photo identifications of defendants by the victim nine days after an assault.

The court found that the photo identifications, sought to be introduced by the prosecution came after the victim had spoken with the detective investigating the case nine times.²⁹²  The court was not convinced that the identification was not influenced by the detective or by something other than a desire to tell the truth.²⁹³   There was no appropriate indicia of reliability to the identifications to be found in this situation. The identifications were disallowed pursuant to the residual exception.

            In Iowa v. Castaneda,²⁹⁴ the Iowa Supreme Court overturned defendant’s conviction for child abuse and remanded the case.  The court provided an explanation supporting the use of the residual exception on remand.  Yet, the court gave no thoroughgoing analysis for the trial court to follow in order to determine whether there existed  particularized guarantees of trustworthiness with respect to the reintroduction at the retrial of a videotaped statement of the child  victim.²⁹⁵

Castaneda is disappointing in this respect.

            The same court had given an excellent analysis of its findings of particularized guarantees of trustworthiness in the case of Iowa v. Hallum.²⁹⁶  In Hallum the Court allowed the prosecution during a murder trial, pursuant to the residual exception, to introduce defendant’s accomplice’s videotaped narrative of the crime.²⁹⁷

            The accomplice in that case was Carlos Medina.  The Iowa Supreme Court allowed Medina’s statement into evidence pursuant to the residual exception after finding (1) Medina was not offered leniency in exchange for his statement; (2) he did not attempt to shift blame to the defendant; (3) he unequivocally acknowledged that he committed serious offenses and did not attempt to avoid responsibility for his own acts; (4) he did not attempt to curry favor with the police; (5) he voluntarily gave his statement after being given his Miranda rights; (6) he had not been caught “red-handed” and so was not in a situation where his only recourse was to share blame by implicating the defendant; (7) His statement was given shortly after the commission of the crime while his memory was fresh; and (8) his statement was extremely detailed.²⁹⁸ This thoroughgoing analysis by the court demonstrated that thee were appropriate indicia of reliability to show that the statement was trustworthy.

            In Minnesota v. Martin,²⁹⁹The Supreme Court of Minnesota upheld the trial court’s refusal to allow defendant who was on trial for murder to introduce a double hearsay statement as part of his defense.³⁰⁰  The Court found that defendant had failed to establish sufficient guarantees of trustworthiness because he made no offer of proof about the circumstances of the conversations, about the declarant’s memory³⁰¹.  Additionally, the Court found that before defendant had offered this double hearsay testimony, he had already introduced extrinsic evidence to contradict the proffered testimony.³⁰²

            A year earlier in Minnesota v. Martin,³⁰³ involving the same defendant the Supreme Court of Minnesota reversed the state appellate court’s ruling that prior testimony of Martin’s co-defendants who were tried separately could be introduced at his trial by the prosecution.³⁰⁴  The Supreme Court found that the appeals court erred when it concluded that the entire portions of the co-defendants’ trial testimony bore sufficient indicia of reliability to merit admission under the residual exception and the Confrontation Clause.³⁰⁵ The Supreme Court found that some of the proffered testimony was so unreliable it would have to be subjected to cross examination.

            In the Matter of L.E.P.,³⁰⁶ a case involving a juvenile, the Minnesota Supreme Court examined the criteria state courts should articulate in evaluating statements by young children admitted pursuant to the residual exception.³⁰⁷ The criteria included evaluating the lack of motive to fabricate, spontaneity and demeanor of the child, expressions unexpected from a child of that age, and the absence of leading questions.³⁰⁸

            In Minnesota v. Wikan,³⁰⁹ the Court of Appeals upheld the prosecution’s introduction of prior inconsistent statements of a victim of spousal abuse pursuant to the state’s residual exception.  The court found that the prior statements implicating her spouse, which differed from her testimony at trial, possessed the requisite guarantees of trustworthiness.³¹⁰  The Court found that the statements were reliable because (1) they were against interest due to the relationship; (2) she did not appear confused when she made the statements; (3) the statements were corroborative of what other witnesses testified, and (4) they were made just after the event.³¹¹

            In Michigan v. Lee,³¹² the Court of Appeals of that state upheld the admission, pursuant to the state’s residual exception, statements of a victim of an armed robbery who died before the trial.  The declarant identified defendant as the perpetrator.  The Court found the statements had particularized guarantees of trustworthiness.³¹³  Among other factors, the court found were that (1) the victim suffered no memory loss from the incident; (2) that he was coherent when he made the statements; (3) he was not confused; (4) and the statements were voluntary.³¹⁴  Also, the court found that the statements were (5) not prompted by pressure from police or others.³¹⁵

            In Michigan v. Welch,³¹⁶ the Court of Appeals upheld the trial court’s decision to not allow a hearsay statement offered by the defendant pursuant to the residual exception.³¹⁷ Defendant on trial for the murder of a girlfriend he allegedly pushed off a bridge to her death sought the introduction of  statements by witnesses who allegedly heard the victim say she was going to kill herself moments before her plunge.³¹⁸  Here the court held that the statements were not reliable.  The court found that statement had not been related directly to the police officer who would testify.  The defense sought too have the police officer to testify to what a witness had overheard from others.³¹⁹  However, there was (1) no evidence that this witness actually heard the statement by the victim; (2) no other witnesses testified as to such statement; (3) sixteen minutes had elapsed between the victim’s plunge and the witness relating the information to the officer.³²⁰  The court also found unreliable the fact that the officer who approached the group of witnesses (4) found them laughing and giggling about the situation.³²¹ Finally, the court found the officer (5) had not written down the statement.³²² A sad set of fact that would not support a finding of equivalent guarantees of trustworthiness.

            In Nebraska v. Garner,³²³ the Supreme Court of that state upheld the trial court’s refusal to introduce tapes of a false confession at a murder trial.  Defendant, on trial for murder sought introduction of the taped confession of an 11 year boy who confessed to the crime.³²⁴  The 11 year old had been seen at the victim’s house prior to the murder.³²⁵  He was questioned by police for seven hours before defendant became the true suspect of the crime.  The 11 year old later said he made up the confession so that he could go home and go to sleep.³²⁶  The 11 year old was available and testified at trial.³²⁷  The Court found the tapes were inadmissible hearsay and that it was not an abuse of discretion for the trial court to not allow the tapes pursuant to the residual exception.³²⁸ There was no guarantee of trustworthiness to the tapes made under the conditions of this case.  The court rightly decided in this situation that it was best that the 11 year old who was available for the trial testify and be subjected to cross examination.

            In Nebraska v. Jacob,³²⁹the Nebraska Supreme Court again upheld a trial court’s refusal to allow defendant, Jacob,  on trial for murder to introduce evidence pursuant to the residual exception.  In this case Jacob sought introduction of a videotape deposition of a used car salesman in Maine.³³⁰ Jacob who had planned to fly to England sought to sell his vehicle in Maine, where he had driven after killing his girlfriend and her new lover in Nebraska.³³¹  He sought introduction of the videotape to show his innocent behavior prior to his arrest.³³²  The Nebraska trial court did no analysis but held that the videotape would not be admitted pursuant to the residual exception.  The Supreme Court found the trial court had not abused its discretion for the “residual exception is to be used rarely and only in exceptional circumstances.”³³³  The defense had done little to show that the proffered  videotape possessed any particularized guarantees of trustworthiness.  The court was correct not to admit the evidence.

            As this review illustrates the state courts are very cautious concerning introduction of hearsay pursuant to the residual exception in criminal cases. The Arkansas Supreme Court in three separate cases would not allow introduction of defense evidence pursuant to the residual exception. In Delaware the court in separate cases twice denied prosecutors the use of  residual hearsay of unreliable identifications by crime victims who were hospitalized.  The Iowa Supreme Court gave a very thoroughgoing analysis of appropriate indicia of reliability for introduction of the statements in Hallum. In the four cases considered by the Minnesota Supreme Court the court found particularized guarantees of trustworthiness in only two of the cases.  The Michigan courts allowed testimony pursuant to the residual exception in one case but not the second.  The Nebraska court gave short shrift to defendants’ requests to introduce hearsay pursuant to the residual exception in the two cases it considered.

            As a result of this review we need not fear that the use of the residual exception is being

 abused by judges in state criminal court cases.

 

C. THE FLORIDA CASES

            As noted earlier in this article Florida does not have a residual exception akin to Rule 807. However, Florida does have two sections of its evidence code directed to the types of circumstances where residual exceptions often are applied. Section 90.803(23) allows the use of out of court statements of children 11 years old or younger in child abuse cases.  Section 90.803(24), allows introduction of such statements by elderly or disabled adults. These may be viewed as “quasi-residual” exceptions.

              This survey would not be complete without commenting on the cases in Florida where hearsay statements have been offered pursuant these “quasi-residual” exceptions. The initial question is whether such cases require the same type of Rule 807 analysis to determine whether there are appropriate indicia of reliability and notice to establish trustworthiness.  The answer is, of course, no.  There is no need for an independent analytical framework in Florida because the statutes in question set out the requirements to be followed.  If the requirement of the statute are not met the evidence is not allowed.  A review of the cases reveals that the courts of Florida are very careful with the hearsay evidence sought to be introduced pursuant to their “quasi-residual” statutes.   

            The essence of  both statutes is that they seek to test the reliability of out of court statements.  In criminal cases notice must be given.  In all cases the judge must hold a hearing outside of the hearing of the jury to determine the reliability of such statements.³³⁴ If reliable, such statements may be introduced whether the declarant is available or unavailable.³³⁵  If the declarant is unavailable, the trial judge must determine whether the hearsay statement is reliable and from a trustworthy source without regard to corroborating evidence.³³⁶  If the answer is yes, then the judge must determine whether other corroborating evidence is present.³³⁷  If the answer to either question is no, then the hearsay statements are inadmissable.³³⁸

            In Doe v. Broward County School Board,³³⁹ a trainable mentally retarded girl with Downs Syndrome had been digitally penetrated by a mentally disabled male in an after school case program at an elementary school in Broward County.³⁴⁰ Her mother brought a personal injury lawsuit claiming negligent supervision.³⁴¹ The victim was unavailable to testify at the trial. The School Board made a motion in limine to exclude from trial the victim’s hearsay statements to her mother and a psychologist on the ground that the hearsay statements were not admissible pursuant to 90.803(23), because the victim was unavailable and there was no corroborating evidence of the incident.³⁴²  The trial court granted the motion in limine.  The court then granted the School Board’s motion for summary judgment based upon the court’s conclusion that 90.803 (23), preempted all other hearsay exceptions, and as a result, the victim had no evidence with which to prove her case.³⁴³

            The Florida Court of Appeals found that the trial judge had not abused its discretion in finding that there was no corroborating evidence of the incident which would allow the introduction of the hearsay statements pursuant to 90.803 (23).³⁴⁴ Yet, the appeals court reversed the summary judgment and remanded the case for the trial judge to determine whether the victim’s out of court statements may have been admitted pursuant to other hearsay exceptions.³⁴⁵

            In Florida v. Townsend,³⁴⁶ the Florida Supreme Court reversed defendant’s conviction for abuse on a child of two years old because of errors in the trial court’s failure to make adequate findings for the admission of the child victim’s hearsay statement. The Court found that:

Section 90.803 (23) (a) (1) mandates that the trial judge in a hearing conducted outside the presence of the jury, determine whether a hearsay statement is trustworthy and reliable by examining the time, content, and circumstances of the statement, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim and any other factor deemed appropriate,,, Other factors may include… a consideration of the statements’ spontaneity; whether the statement was made at the first available opportunity following the alleged incident… whether the child used terminology unexpected of a child of similar age; the motive or lack thereof to fabricate the statement…in sum, as noted by the United States supreme Court in Wright, a court is to use a totality of the circumstances evaluation in determining reliability.³⁴⁷

           

            The Court in Townsend found, however, that the trial judge merely listed each of the statements to be considered and summarily concluded, without explanation or factual findings, that the time, content, and circumstances of the statements to be admitted at trial were sufficient to reflect that the statements were reliable.³⁴⁸  The Court found such findings insufficient under both the Florida statute and the constitutional requirements of Idaho v. Wright.³⁴⁹

            Similarly, in Hill v. Florida,³⁵⁰ the state court of appeals reversed and remanded defendant’s conviction for sexual battery and a  lewd and lascivious act committed in the presence of a 4 year old..³⁵¹ The court found that, although some of the child’s out of court hearsay statements had been found reliable pursuant to 90.803 (23), the trial court had erred when it allowed the examining physician to testify as to the child victim’s statements about the defendant’s culpability without observing the safeguards of 90.803(23), with respect to such testimony. ³⁵²

            In Florida v. Jones,³⁵³ the Supreme Court of Florida determined that by providing safeguards outlined in 90.803(23), the legislature of the Florida had sought to strike a balance between the need to consider child hearsay statements in judicial proceedings and the rights of the accused.³⁵⁴  The Court held that 90.803 (23) comported with the confrontation clauses of both the federal Constitution and the Florida Constitution.³⁵⁵

            In stark contrast to these child abuse cases, the Florida Supreme Court in Conner v. Florida,³⁵⁶ held that the use of hearsay exception for elderly adults, pursuant to 90.803(24), was, in criminal cases unconstitutional.

            In that case defendant was convicted, on a plea of nolo contendre, of armed burglary, armed robbery and armed kidnaping.³⁵⁷  The victim was an 84 year old man who died prior to trial.  The trial court ruled that hearsay statements he gave to police about the crime were corroborated by other evidence and that the State would be allowed in a hearing to establish that the circumstances surrounding the statements guaranteed their reliability.³⁵⁸

             The Supreme Court of Florida found deficiencies with the statute as it applied to elderly persons.  The Court found that 90.803 (24), in defining elderly as an adult 60 years of age or older, applies to a much broader class of adult declarants than did the child abuse statute of 90. 803 (23).³⁵⁹  As written the statute applied to all persons over 60 years old.  The Court also found, unlike the child abuse statute which was limited to acts describing child abuse, neglect, or sexual abuse, under the 90.804 (24) exception for the elderly, declarants could describe any act of abuse, neglect any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any other violent act.³⁶⁰  Thus the elderly hearsay exception would not be limited to crimes concerning elder abuse.  Finally, the Court could not determine a list of factors for the elderly, unlike for the factors for children set out in 90.803 (23) that the Court believe would guarantee the reliability of the hearsay statements of the elderly adult.³⁶¹

            The case was well reasoned.  And, from such reasoning it is easy to presume that though Florida has no residual rule akin to 807, the “quasi-residual” exceptions it has adopted for the elderly and children will not swallow the hearsay rule as we know it.

 

V.  CONCLUSION

           

            This review of the twelve federal cases and twenty two state cases which relied on the residual exception in some part show that there has been no abuse of the rule by the courts at the federal or the state level since the 1997 amendment to the residual exception.  Courts appear vigilant with respect to analyzing the need for particularized guarantees of trustworthiness for statements proffered pursuant to the exception.  Very often, such analysis shows that the statements lack the particularized guarantees of trustworthiness needed to pass muster. We need the residual exception to the hearsay rule.  It is the exception that gives flexibility to the rule.  If the states are reluctant to adopt such residual exceptions they may well be advised to look at the Florida model, especially for child abuse and neglect cases.

           

           

 

---

¹ McCormick On Evidence, § 245 (5^th ed. 1999).

² Id. at § 245.

³ Id. at§ 245.

⁴ See, Glenn Weissenberger, Federal Rules of Evidence: Rules, Legislative History, Commentary and Authority (1999).

⁵ Fed. R.  Evid. 102 provides that “These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”

⁶ See, Fed. R. Evid. 803(1) – (23), 804(b)(1) – (6).

⁷ See, Fed. R. Evid.. 801(d)

⁸ Fed. R. Evid.. 803(24), provided:

                The following are not excluded from the hearsay rule, even though the declarant is available as witness:

                (24) Other exceptions.  A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) 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 (C) the general purpose of these rules and the interests of justice will best be served by the admission of statement into evidence.  However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including name and address of the declarant.

                Federal Rule 804(b)(5) is identical in language except for its preamble which states “the following are not excluded by the hearsay rule if the declarant is unavailable as a witness.”

⁹ See, Senate Comm.  on Judiciary, S. Rep. No. 1277, 93d Cong., 2d Sess.  18-20 (1974), reprinted in 1974 U.S. Code Cong. & Admin. News 7051,7065-66.

¹⁰ See, James W. Moore Et. Al., Moore’s Federal Practice, Federal Rules of Evidence ¶ 803.12 (1997 edition).

¹¹ See, James E. Beaver, The Residual Hearsay Exception Reconsidered, 20 Fla. St. U. L. Rev 787, 789 (1993).

¹²Id . at 790. But also, cf. G. Michael Fenner, The Residual Exception To The Hearsay Rule: The Complete Treatment, 33 Creighton L. Rev. 265. Fenner believes the residual exception is the safety valve of the hearsay rule.

¹³ Thomas Black, Federal Rules of Evidence 803(24) & 804(b)(5) – The Residual Exceptions – An Overview, 25 Houston L. Rev. 13, 56 (1988).

¹⁴ Fed. R. Evid. 807 became effective on December 1, 1997, See, Federal Rules of Evidence Handbook      ( Anderson Publishing 1999).

¹⁵ Fed. R. Evid. 807.

¹⁶ See Federal rules of Evidence Handbook, supra note 13 at 155.

¹⁷ Beaver, supra at note 10, at 790

¹⁸ Beaver, supra at note 10, at 791.

¹⁹ Beaver, supra at note 10 at 791.

²⁰See, McCormick, supra at § 324.

²¹ In May, 2001 the author, with assistance from the Barry University School of Law Library reference staff,  undertook an on-line search of cited cases referencing the residual exception since 1997.  The cases cited herein are a result of that search.

²² Fed. R. Evid. 801(a).

²³ Fed. R. Evid. 801(c).

²⁴ See, McCormick, supra at note 2, at § 246.

²⁵ See, McCormick, supra at § 254.

²⁶  See, McCormick, supra at§ 256.

²⁷ Fed. R. Evid. 803(2)

²⁸ Fed. R. Evid. 803(4)

²⁹ Fed. R. Evid. 803(6)

³⁰ Fed. R. Evid. 803(16)

³¹ Fed. R. Evid. 804(b)(2)

³² Fed. R. Evid 804(b)(3)

³³ Weinstein’s Federal Evidence, Volume 6, Table T1 (2d ed. 2000)

³⁴ Id. at T2- T7: The Alabama Rules of Evidence became effective 1/1/96; Alaska Rules effective 8/1/79; Arizona Rules effective 9/1/77; Arkansas Rules effective 7/1/76; Colorado Rules effective 1/1/80; Delaware Rules effective 1/1/80; Florida Rules effective 7/1/79; Hawaii Rules effective 1/1/81; Idaho Rules effective1/1/85; Indiana Rules effective 1/1/94; Iowa Rules effective 1/1/83; Kentucky Rules effective 1/1/92; Louisiana Rules effective 1/1/89; Maine Rules effective2/2/76; Maryland Rules effective 1/1/94; Michigan Rules effective 3/1/78; Minnesota Rules effective 7/1/77; Mississippi Rules effective 1/1/86; Montana Rules effective 7/1/77; Nebraska Rules effective 8/24/75; Nevada Rules effective 1/1/71(based on Preliminary Draft of the Federal Rules); New Hampshire Rules effective 1/1/85; New Jersey Rules effective 1/1/93; New Mexico Rules effective 1/1/73 ( amended 7/1/76 to conform to the changes made to the draft Federal Rules by Congress); North Carolina Rules effective 7/1/84; North Dakota    Rules effective 2/15/77; Ohio rules effective 7/1/80; Oklahoma Rules effective 10/1/78; Oregon Rules effective 1/1/82; Pennsylvania Rules effective 10/1/98; Puerto Rico Rules effective 10/1/79; Rhode Island Rules effective 10/1/87; South Carolina Rules effective 9/3/95; South Dakota Rules effective 7/1/78; Tennessee Rules effective 1/1/90; Texas Rules effective 3/1/98; Utah Rules effective 9/1/83; Vermont Rules effective 4/1/83; Washington Rules effective 4/2/79; West Virginia Rules effective2/1/85; Wisconsin Rules effective 7/1/74(based on Final Draft of the Federal Rules); Wyoming rules effective 1/1/78.  The Military Rules of Evidence are based on the Federal Rules and were adopted 3/12/80.

³⁵ Id. at Table T1.

³⁶ Id. at Table T7.

³⁷ Id. at Table T106 – T112.    

³⁸ Id. at Table T159 – T161.The states that have adopted residual exceptions are: Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Louisiana, Maryland, Michigan, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Puerto Rico, Rhode Island South Dakota, Utah, West Virginia, Wisconsin, Wyoming, and the U.S. Military.

³⁹ Id. at Table T159 – T161.

                 See also, Colo. R. Evid. 807, effective January 1, 1999.

⁴⁰ Id. at Table T159 – T161.

⁴¹ Id. at T160.

⁴² The State of Nevada has no residual exception where the declarant is available.  Nevada does provide a residual exception akin to Rule 807 when the declarant is unavailable.  However, the Nevada rule omits the notice requirement.

⁴³ Id. at T160 and T162.

⁴⁴ See, Fla. R. Evid. §§ 90.803(23) and 90.803(24).

⁴⁵ Florida R. Evid. §90.803(23)(a).

⁴⁶Id. at §90.803(23)(a) 1.

⁴⁷ Id. at§90.803(23)(a) 2(a) and (b).

⁴⁸ Id. at § 90.903 (a) 2 (b).

⁴⁹ Id. at §90.803(23)(b).

⁵⁰ Id. at § 90.803(23)(c).

⁵¹ Id. at § 90.803(24)(a) – (c).

⁵² See, Amendments to the Florida Evidence Code, 25 F.L.W. S909 ( Fla. Oct.26 2000).

⁵³ Id.

⁵⁴ 497 U.S. 805 (1990)

⁵⁵ Id. at 827.

⁵⁶ Id. at 823 .

⁵⁷ Id. at 823 .

⁵⁸ Id. at 824 -25 .

⁵⁹ Id. at 826  .

⁶⁰ See, Fed. R. Evid. 804(b)(2).

⁶¹ McCormick, supra. § 324.

⁶² Id.

⁶³ Id.

⁶⁴ Id.

⁶⁵ Id.

⁶⁶ Id.

⁶⁷ Id.

⁶⁸ Id.

⁶⁹ See, Beaver, supra at 797.

⁷⁰ See, Beaver, supra at 797 -98, citing Karme v. Commissioner, 673 F.2d 1062(9th Cir. 1982), where the court found that bank records bore circumstantial guarantees of trustworthiness because of the distant location of the bank and because there was no evidence to suggest the bank records were anything other than what they purported to be.

⁷¹ Id.

⁷² Id. at 798.

⁷³ Fenner, supra at 303.

⁷⁴ Id.

⁷⁵ See, Fed. R. Evid. 102

⁷⁶ See, Gonzalez v. Digital,8 F. Supp.2d 194 ( E.D.N.Y. 1998) and Chase Bank v. Traffic Stream, 86 F. Supp. 2d 244 (E.D.N.Y. 2000) infra.

⁷⁷ See, John Paul Mitchell v. Quality King,106 F. Supp. 2d 462 (E.D.N.Y. 2000), infra.

⁷⁸ See, United States v. Gomez, 191 F. 3d 1214 (10^th Circ. 1999).

⁷⁹ See, United States v. Sanchez-Lima, 161 F. 3d 545 ( 9^th Cir. 1998), infra.

⁸⁰S ee, Iowa v. Hallum, 585 N.W. 2d 249 (1998), infra.

⁸¹ Beaver, supra at 798.

⁸² Fed. R. Evid. 807.

⁸³ Fed. R. Evid. 807.

⁸⁴ Fenner, supra at 279.

⁸⁵ Id.

⁸⁶  Id. at 281

⁸⁷ See, Fenner, supra at 280 and Beaver, supra at 802.

⁸⁸ Fed. R. Evid. 807

⁸⁹ See, Fenner, supra at 280, citing United States v. Iaconetti, 406 F. Supp. 554 (E.D.N.Y. 1976), aff’d F.2d 574 (2d Cir. 1976), cert. denied 429 U.S. 1041 (1977).

⁹⁰ 193 F.3d 1241 (11^th Cir 1999).

⁹¹ Id. at 1243.

⁹² Id at 1263.

⁹³ Id at 1249.

⁹⁴ Id. at 1244-1245.

⁹⁵ Id.

⁹⁶Id. at 1252.

⁹⁷ Id at 1252-53.

⁹⁸ Id.

⁹⁹ Id.

¹⁰⁰ Id.

¹⁰¹ Id. at 1254, citing Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547,549 (5^th Cir.1987).

¹⁰² Id at 1254.

¹⁰³ Id.

¹⁰⁴ Id. at 1255.

¹⁰⁵ Id.

¹⁰⁶ 189 F. 3d 218 (2d Cir. 1999).

¹⁰⁷ Id. at 240.

¹⁰⁸ Id. at 219.

¹⁰⁹ Id. at 220.

¹¹⁰ Id. at 223.

¹¹¹ Id. at 224.

¹¹² Id. at 240.

¹¹³  Fed. R. Evid 803(3) provides: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (3) A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition ( such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

¹¹⁴ 189 F.3d 218 at 231.

¹¹⁵ Id.

¹¹⁶ Id. at 232.

¹¹⁷ Id. at. 234.

¹¹⁸ Id. at 238.

¹¹⁹ 150 F.3d 223 (2d Cir. 1998).

¹²⁰ The notice requirement of Fed. R. Evid. 807 provides: However, a statement may not be admitted under this exception unless 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, including the name and address of the declarant.

¹²¹ Id. at 224.

¹²²Id.

¹²³ Id.

¹²⁴ Id. at 226

¹²⁵ Id. at 224

¹²⁶ Id.

¹²⁷ Id. at 225.

¹²⁸ Id.

¹²⁹ Id.

¹³⁰ 8 F. Supp. 2d 194 (E.D. N.Y. 1998).

¹³¹ Id. at 196.

¹³² Id.

¹³³ Id. at 197.

¹³⁴ Id.

¹³⁵ Id.

¹³⁶ Id. at 201.

¹³⁷ Id.

¹³⁸ Id.

¹³⁹ Id.

¹⁴⁰ Id.

¹⁴¹ Id.

¹⁴² Id. at 202

¹⁴³ 24 F. Supp. 2d 197.

¹⁴⁴ Id. at 198.

¹⁴⁵ See, P.R. Law Ann. tit. 9 § 1751.

¹⁴⁶  24 F. Supp. 2d at 199.

¹⁴⁷ Id.

¹⁴⁸ See, P.R. law Ann. tit 9§ 1751.

¹⁴⁹  24 F. Supp. 2d at 199.

¹⁵⁰ Id. at 200.

¹⁵¹ Id.

¹⁵² Id.

¹⁵³ 86 F. Supp. 2d 244 (S.D. N.Y. 2000)

¹⁵⁴ Id. at 246.

¹⁵⁵ Id. at 247.

¹⁵⁶ Id.

¹⁵⁷ Id at 251.

¹⁵⁸ Id. at 251, note 12.

¹⁵⁹ Id. at 251, note 13.

¹⁶⁰ Id. at 253.

¹⁶¹ Id. at 254, note 17.

¹⁶² Id. at 254.

¹⁶³ Id.

¹⁶⁴ Id.

¹⁶⁵ Id.

¹⁶⁶ Id at 262.

¹⁶⁷ 106 F. Supp. 2d 462 (E.D. N.T. 2000).

¹⁶⁸ Id. at 465.

¹⁶⁹ Id.

¹⁷⁰ Id. at 467-469.

¹⁷¹ Id. at 471-472.

¹⁷² Fed. R. Evid. 901(b)(4) provides, in relevant part: “… the following are examples of authentication or identification conforming to this rule: (4) Distinctive Characteristics and the like.  Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”

¹⁷³ 106 F. Supp.2d at 472.

¹⁷⁴ Id at 473.

¹⁷⁵ Id.

¹⁷⁶ Id.

¹⁷⁷ Id.

¹⁷⁸ Id.

¹⁷⁹ Id. at 478.

¹⁸⁰ U.S. Constitution, Amend. VI, provides in relevant part: “

 In all criminal cases, the accused shall enjoy the right….to be confronted with the witnesses against him…”

¹⁸¹ See, Idaho v. Wright supra. At 813.

¹⁸² Ohio v. Roberts, 448 U.S.56, 66 (1980).

¹⁸³ Wright, supra. at 816.

¹⁸⁴ 161 F. 3d 545 (9^th Cir.  1998).

¹⁸⁵ Id. at 546.

¹⁸⁶ 18 U.S.C. § 111 provides, in relevant part:

¹⁸⁷ 161 F. 3d at547.

¹⁸⁸ Id.

¹⁸⁹ Id.

¹⁹⁰ Id.

¹⁹¹ Id at 548.

¹⁹² Id.

¹⁹³ 208 F. 3d 346 (2d Cir. 1999).

¹⁹⁴ Id. at 349.

¹⁹⁵ Id.

¹⁹⁶ Id.

¹⁹⁷ Id.

¹⁹⁸ Id.

¹⁹⁹Id.

²⁰⁰ Id.

²⁰¹ Id. at 350.

²⁰² Id. at 351.

²⁰³ Id.

²⁰⁴ Id.

²⁰⁵ 20 F. 3d 538 (2d Cir. 1994).

²⁰⁶ Id. at 545-46.

²⁰⁷ 208 F. 3d at 351.

²⁰⁸ Id.

²⁰⁹ Id. at 356.

²¹⁰ 212 F. 3d 1112 (8^th Cir. 2000).

²¹¹ Id. at 1116.

²¹² Id.

²¹³ Id.

²¹⁴ Id.

²¹⁵ Id.

²¹⁶ Id.

²¹⁷ The appeal in this case was only brought by Ms. Papajohn.  She appealed her convictions for one count of conspiracy to commit arson and mail fraud, one count of aiding and abetting arson, and two counts of mail fraud. Id. at 1115.

²¹⁸ 527 U.S. 116 (1999).

²¹⁹ Id. at119.

²²⁰ 212 F.3d at 1120.

²²¹ Id.

²²² Id.

²²³ Id.

²²⁴ Id. at 1122.

²²⁵ 219 F. 3d 300 (4^th Cir. 2000).

²²⁶ Id. at 304-306.

²²⁷ Id at 306-308.

²²⁸ Id. at 308.

²²⁹ Id. 309.

²³⁰ Id. at 309-310.

²³¹ Id.

²³² Id. at 310.

²³³ Id.

²³⁴ Id.

²³⁵ Id.

²³⁶ Id.

²³⁷ Id. at 321.

²³⁸ 219 F. 3d 404 ( 5^th Cir. 2000).

²³⁹ Id. at 419.

²⁴⁰ The defendants were each convicted on all counts of a twenty nine count indictment charging conspiracy, mail fraud, engaging in an illegal monetary transaction, theft from a federally funded program, money laundering, and perjury. Id. at 407.

²⁴¹ Id. at 408 and 419.

²⁴² Id. at 407-408.

²⁴³ Id.

²⁴⁴ Id at 408.

²⁴⁵ Id.

²⁴⁶ Id.

²⁴⁷ Id. at 419.

²⁴⁸ Id.

²⁴⁹ Id.

²⁵⁰ Id.

²⁵¹ Colorado R. Evid. 804(b)(5) provides: Declarant Unavailable…A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

                N.B. On January 1, 1999, Colorado transferred its two part residual exceptions into one new Rule 807 Residual Exception.

²⁵² Delaware R. Evid. 803(24) Provides: the following is not excluded by D.R. E. 802, the hearsay rule:

                A statement not specifically covered by any of the foregoing exceptions but having circumstantial guarantees of trustworthiness, if the court determines that :

                (A) the statement is offered as a evidence of a material fact;

(B) 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

                (C) the general purposes of these rules and the interest of justice will best be served by admission of the statement into evidence.

²⁵³Arkansas R. Evid. 803(24) provides: Other Exceptions.  A statement not specifically covered by any of the foregoing exceptions but having equivalent guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) 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 (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.  However, a statement may not be admitted under this exception unless the proponent makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

²⁵⁴ 2001 Colo. App. LEXIS 564 (March 29, 2001).

²⁵⁵ Id. at 1.

²⁵⁶ Id. at 25.

²⁵⁷ Id. at 26

²⁵⁸ Id. at 29.

²⁵⁹ 1999 Del. Ch. Lexis 232.

²⁶⁰ Id. at 1.

²⁶¹ Id. at 10-11.

²⁶² Id. at 12.

²⁶³ 1998 Ark. App. LEXIS 863.

²⁶⁴ Id. at 1.

²⁶⁵ Id.

²⁶⁶ Id. at 3.

²⁶⁷ Id. at 6.

²⁶⁸ Id.

²⁶⁹ Id.

²⁷⁰ 1998 Ark. App. LEXIS 747(October 1998).

²⁷¹ Id. at 1.

²⁷² Id. at 12.

²⁷³ 1998 Ark. App. LEXIS 66 (February 1998)

²⁷⁴ Id. at 4.

²⁷⁵ Id. at 5.

²⁷⁶ 946 S.W. 2d. 678 (1997).

²⁷⁷ Id. at. 684.

²⁷⁸ Id. at 684.

²⁷⁹ Id.

²⁸⁰ Id.

²⁸¹ 952 P. 2d 774.

²⁸² Id. at 777.

²⁸³ Id.

²⁸⁴ Id.

²⁸⁵ 2000 Del. Super. Lexis 60 (2000).

²⁸⁶ Id at 1.

²⁸⁷ Id. at 12.

²⁸⁸ Id.

²⁸⁹ Id.

²⁹⁰ Id.

²⁹¹ 1997 Del. Super. LEXIS 603 (1997).

²⁹² Id. at 4.

²⁹³ Id. at 9.

²⁹⁴ 621 N.W. 2d 435 (2001).

²⁹⁵ Id. at 443-448.

²⁹⁶ 585 N.W. 2d 249 (1999).

²⁹⁷ Id. at 257-259. Some of the factors the Court found relevant to reliability was that the accomplice gave his statement without being offered leniency; he did not attempt to shift blame to defendant; he did not try to avoid responsibility for his own acts in the crime; he did not attempt to curry favor with the police; he had not been caught red-handed in the act; and he gave his statement voluntarily after being given his Miranda warnings.

²⁹⁸ Id. at 257.

²⁹⁹ 614 N.W. 2d 214 (2000).

³⁰⁰ Id. at 225.

³⁰¹ Id.

³⁰² Id.

³⁰³ 591 N.W. 2d 481 (1999).

³⁰⁴ Id. at 484.

³⁰⁵ Id.

³⁰⁶ 594 N.W. 2d 163 (1999).

 

³⁰⁷ Id. at 170-71.

³⁰⁸ Id. at 173.

³⁰⁹ 1997 Minn. App. LEXIS 271(1997).

³¹⁰ Id. at 6.

³¹¹ Id. at 6- 7.

³¹² 622 N.W. 2d 71 (2000).

³¹³ Id. at 76.

³¹⁴ Id. at 80.

³¹⁵ Id.

³¹⁶ 574 N.W. 2d 682.

³¹⁷ Id. at 685.

³¹⁸ Id. at 684.

³¹⁹ Id.

³²⁰ Id.

³²¹ Id.

³²² Id.

³²³ 614 N.W. 2d 319.

³²⁴ Id. at 323.

³²⁵ Id. at 323-24.

³²⁶ Id.

³²⁷ Id. at 329.

³²⁸ Id. 330.

³²⁹ 574 N.W. 2d 117 (1998).

³³⁰ Id. at 139.

³³¹ Id. at 128.

³³² Id. at 139.

³³³ Id.

³³⁴ See, Fla.  Evid. R. 90.903 (23) (a) (1) and 90.803 (24) (a) (1).

³³⁵ See, Fla. Evid. R. 903 (23) (a) (2) and 90.803 (24) (a) (2).

³³⁶ State v. Townsend, 635 So. 2d 949, 957 (Fla. 1994).

³³⁷ Id.

³³⁸ Id.

³³⁹ 744 So. 2d 1068 (4^th DCA Fla. 1999)

³⁴⁰ Id. at 1070.

³⁴¹ Id.

³⁴² Id.

³⁴³ Id.

³⁴⁴ Id. at 1071.

³⁴⁵ Id. at 1073. Specifically, the court of appeals remanded the case in order that the trial court might determine whether the victim’s out of court statements to the psychologist, not relating to the identity of the perpetrator, were admissible under the medical diagnosis and treatment exception and whether the victim’s out of court statements to her mother were admissible as excited utterances.

³⁴⁶ 635 So 2d 949 (Fla. 1994).

³⁴⁷ Id. at 957-58.

³⁴⁸ Id. at. 958.

³⁴⁹ Id.

³⁵⁰ 643 So. 2d 653 (Fla 2d DCA, 1994).

³⁵¹ Id at. 654.

³⁵² Id.

³⁵³ 625 So. 2d 821 (Fla. 1993).

³⁵⁴ Id. at 826.

³⁵⁵ Id.

³⁵⁶ 748 So. 2d 950 (Fla. 2000).

³⁵⁷ Id. at 953.

³⁵⁸ Id.

³⁵⁹ Id. at 958.

³⁶⁰Id.

³⁶¹ Id.