EvidenceProf Blog

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

Friday, August 23, 2019

My Third 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. Under the current version of Rule 807, a party seeking to offer a statement under the residual hearsay exception must establish that the statement is

is offered as evidence of a material fact;...[and]

admitting it will best serve the purposes of these rules and the interests of justice.

The amended rule would eliminate both of these requirements. So, what's the reasoning behind the change and the practical effect?

According to the Advisory Committee,

The requirements in Rule 807 that the residual hearsay must be proof of a “material fact” and that admission of residual hearsay be in “the interests of justice” and consistent with the “purpose of the rules” have not served any good purpose. The inclusion of the language “material fact” is in conflict with the drafters’ avoidance of the term “materiality” in Rule 403 --- and that avoidance was well-reasoned, because the term “material” is used in so many different contexts. The courts have essentially held that “material” means “relevant” --- and so nothing is added to Rule 807 by including it there. Likewise nothing is added to Rule 807 by referring to the interests of justice and the purpose of the rules because that guidance is already provided by Rule 102. Moreover, the interests of justice language could be --- and has been --- used as an invitation to judicial discretion to admit or exclude hearsay under Rule 807 simply because it leads to a “just” result. The Committee has determined that the rule will be improved by deleting the references to “material fact” and “interest of justice” and “purpose of the rules.”

So, let's break down both of these changes with hypotheticals:

Hypothetical 1: Victim is fatally stabbed with a 15 inch knife, and an Almond Joy wrapper is recovered a couple of feet away from his body. Neighbor tells Police Officer that (1) "Defendant owns a 15 inch Bowie knife;" and (2) "Defendant is totally nuts for Almond Joy." Neighbor dies before Defendant's murder trial, and Prosecutor seeks to introduce his two statements.

Old Rule: A court could interpret the phrase "material fact" as only covering facts that are central to the crime. Under this interpretation, the statement about the knife -- the murder weapon -- would be a material fact. Conversely, the Almond Joy/wrapper likely wasn't used in the murder and could be deemed a non-material fact.

New Rule: The new rule makes crystal clear that any relevant statements can be admitted under Rule 807. Therefore, because the Almond Joy wrapper could have been left by the murderer and Neighbor's statement reveals Defendant's love of Almond Joy, that statement could be admissible if the other elements of Rule 807 are satisfied.

Hypothetical 2: A franchisor brings an action against a former franchisee, alleging claims for trademark infringement, unfair competition, and breach of contract when the franchisee did not close his store after franchisor terminated the franchise agreement. The franchisor seeks to admit audio-tape recordings, debriefing memoranda, shopping memoranda, and another memorandum under Rule 807. See AAMCO Transmissions, Inc. v. Baker, 591 F.Supp.2d 788 (E.D.Pa. 2008).

Old Rule: The court could find that "[a]dmitting this evidence would give ATI the unfettered ability to present a one-sided version of events, which Baker could not test through cross-examination. Admission would hinder the fact-finder in determining the truth because Baker would be unable to adequately challenge the undercover investigation."

New Rule: The court could reach the same result. Indeed, the court in Baker actually cited to Federal Rule of Evidence 102 in reaching its result. And that's the point of the change. Courts are already supposed to consider the interests of justice under Rule 102 in deciding whether to admit/exclude evidence and testimony. And so, the separate requirement in the current version of Rule 807 was duplicative. Therefore, this is not really a change that should have any practical impact.



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Just a comment about hypo #1. It appears that the neighbor's statements would all be excluded by the Confrontation Clause unless the defendant caused the neighbor's death. No?

Posted by: Fred Moss | Aug 26, 2019 2:06:22 PM

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