EvidenceProf Blog

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

Wednesday, August 21, 2019

My Second Post on the Amendment to Federal Rule of Evidence 807, the Residual Hearsay Exception

As noted in a prior post, there is a proposed amendment to Federal Rule of Evidence 807 that would take effect in December 2019. Here's the beginning of the amended Rule:

Screen Shot 2019-08-21 at 8.09.21 PM

As you can see, the amended Rule specifically tells judges to consider evidence corroborating a hearsay statement offered under the residual exception. So, what does this mean?

According to the Advisory Committee,

Courts are in dispute about whether to consider corroborating evidence in determining whether a statement is trustworthy. The Committee determined that an amendment would be useful to provide uniformity in the approach to evaluating trustworthiness under the residual exception --- and substantively, that amendment should specifically allow the court to consider corroborating evidence, because corroboration provides a guarantee of trustworthiness. Thus, trustworthiness can best be defined in the rule as requiring an evaluation of two factors: 1) circumstantial guarantees surrounding the making of the statement, and 2) corroborating evidence. Adding a requirement that the court consider corroboration --- or the lack thereof --- is an improvement to the rule independent of any decision to expand the residual exception. 

So, let's use a hypothetical to demonstrate the significance of this change:

Defendant is on trial for murder. Defendant seeks to call Nurse to testify that. a week after the stabbing and a week before his death, Victim said that Alternate Suspect stabbed him. The court determines that Victim's statement does not qualify as a dying declaration because he did not believe his death to be imminent when he made it. There is evidence that (1) Victim was fatally stabbed with a 15 inch knife; (2) Alternate Suspect owns a 15 inch Bowie knife; (3) Witness saw Alternate Suspect on Victim's street on the night of the murder; and (4) Victim and Alternate Suspect hated each other.

The old version of Rule 807 didn't specify whether courts could use corroborating evidence such as (1)-(4) is determining whether a statement like Victim's statement is sufficiently trustworthy to be admissible. As a result, courts split over whether they could use such corroborating evidence. Conversely, the amended Rule specifically tells courts to consider such corroborating evidence. Based on fact patterns like the one above, I think this makes a great deal of sense.




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