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
