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Editor: Colin Miller
Univ. of South Carolina School of Law

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Friday, May 31, 2013

Are Rule 803 Hearsay Statements More Reliable Than Rule 804 Hearsay Statements?

As I was reviewing the Advisory Committee's Notes to Federal Rules of Evidence 803 and 804 yesterday, I came across something that I have never noticed before. And what I noticed has led me to ask the following question: Are statements falling under a Rule 803 exception generally thought to be more reliable than statements falling under a Rule 804 exception?

Federal Rule of Evidence 803 sets forth hearsay exceptions that apply "regardless of whether the declarant is available as a witness." Meanwhile, the hearsay exceptions created by Federal Rule of Evidence 804 only apply "if the declarant is unavailable as a witness."

Falling in the "it makes sense but I had never thought about it before" category is thus the Advisory Committee's Note to Federal Rule of Evidence 803, which states that

The present rule proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available.

This then takes me back to my question of whether statements falling under a Rules 803 exception are generally thought to be more reliable than statements falling under a Rule 804 exception. I think that the answer has to be "yes." The necessary implication of the above quote is that a Rule 804 statement does not "possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available." And, of course, this is true. Federal Rule of Evidence 804 only applies when the declarant is unavailable; if the declarant is available but not produced the Rule 804 hearsay exceptions don't apply.

What this means is that statements qualifying for admission under Federal Rule of Evidence 804 do not have equivalent circumstantial guarantees of trustworthiness as statements qualifying for admission under Federal Rule of Evidence 803. Instead, they are admitted presumably because of some combination of lesser circumstantial guarantees of trustworthiness and other factors, such as evidentiary need (something that is often mentioned in connection with dying declarations under Federal Rule of Evidence 804(b)(2)).

So, what does this mean? If the prosecution admits a dying declaration under Federal Rule of Evidence 804(b)(2) and the defense admits an excited utterance under Federal Rule of Evidence 803(2), can the defense argue that the excited utterance is the more reliable statement? And what about Federal Rule of Evidence 807, the residual hearsay exception, which allows for the admission of hearsay not specifically covered by Federal Rules of Evidence 803 and 804 if, inter alia, "the statement has equivalent circumstantial guarantees of trustworthiness." How do we apply this exception if we assume that Rule 803 have higher circumstantial guarantees of trustworthiness than Rule 804 statements?

-CM 

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Comments


So what about former testimony? Seems like that's the best kind of hearsay, but we still prefer live testimony.

Reminds me of something that was once the law of Virginia. You could use an affidavit in support of a summary judgment, but not a deposition. That was even on their Bar Exam. I don't know if that has changed.

My point is, it's hard to make all of this simple and rational. Then again, if were all simple and rational, we would be out of a job.

Did you get my post on the question of whether Brady material has to be admissible to me material. I think the answer is no, but I had never thought about it. The TM case brought it to my attention. Ties in, in an interesting way, to your discussion of 404 and 405.

Posted by: Rick Underwood | May 31, 2013 5:06:54 AM

Rick: Interesting point regarding Rule 804(b)(1). Here is what the Advisory Committee has to say:

"Exception (1). Former testimony does not rely upon some set of circumstances to substitute for oath and cross-examination, since both oath and opportunity to cross-examine were present in fact. The only missing one of the ideal conditions for the giving of testimony is the presence of trier and opponent (“demeanor evidence”). This is lacking with all hearsay exceptions. Hence it may be argued that former testimony is the strongest hearsay and should be included under Rule 803, supra. However, opportunity to observe demeanor is what in a large measure confers depth and meaning upon oath and cross-examination. Thus in cases under Rule 803 demeanor lacks the significance which it possesses with respect to testimony. In any event, the tradition, founded in experience, uniformly favors production of the witness if he is available. The exception indicates continuation of the policy. This preference for the presence of the witness is apparent also in rules and statutes on the use of depositions, which deal with substantially the same problem."

Also, I agree that evidence should not need to be admissible to be material for Brady purposes. Here's a short article I wrote on the issue:

http://www.researchgate.net/publication/40823543_Inadmissible_but_Material_Resolving_the_Circuit_Split_After_Wood

Posted by: Colin Miller | May 31, 2013 6:00:44 AM

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