Ever year on December 1, adopted changes that govern various rules of the profession go into effect. In 2015, the Advisory Committee on Rules of Civil Procedure made significant changes to discovery rules of the Federal Rules of Civil Procedure. In 2016, lesser changes were made to FRCP 4, 6, and 82. This year, the comment period is still open for proposed changes to Federal Rule of Evidence 807 (“FRE 807”) , which addresses the residual exception to hearsay rules.
Federal Rule of Evidence 807 (Currently)
In its present form, FRE 807 reads as follows:
(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.
Proposed Changes to FRE 807
In 1997, parts of Federal Rules of Evidence 803 and 804 were taken out of those rules and made into a new rule, FRE 807. In 2011, Congress made linguistic changes to FRE 807 “to make them more easily understood and to make style and terminology consistent throughout the rules,” but did not make any changes that would affect meaning. The proposed 2017 changes to Federal Rule of Evidence 807 are the first substantial changes to the rule since it was first adopted 20 years ago.
As it stands FRE 807 only applies in rare circumstances, but the proposed changes seek to expand the scope of the rule. Below is the freshly crafted Federal Rule of Evidence 807, as proposed by the Advisory Committee on Rules of Evidence:
(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
(1) the court determines, after considering the pertinent circumstances and any corroborating evidence, that the statement is trustworthy;
(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.
(b) Notice. The statement is admissible only if, the proponent gives an adverse party reasonable written notice of an intent to offer the statement , including its substance and the declarant’s name — so that the party has a fair opportunity to meet it. The notice must be provided before the trial or hearing — or during trial or hearing if the court, for good cause, excuses a lack of earlier notice.
Advisory Committee Discourse on Changes to FRE 807
The Advisory Committee published the following comments discussing the proposed changes to FRE 807, following their Fall 2016 meeting.
The requirement that the court find trustworthiness “equivalent” to the circumstantial guarantees in the Rule 803 and 804 exceptions should be deleted. That standard is exceedingly difficult to apply, because there is no unitary standard of trustworthiness in the Rule 803 and 804 exceptions. It is common ground that statements falling within the Rule 804 exceptions are not as reliable as those admissible under Rule 803; and it is also clear that the bases of reliability differ from exception to exception. Moreover, one of the exceptions subject to “equivalence” review — Rule 804(b)(6) forfeiture — is not based on reliability at all. Given the difficulty of the “equivalence” standard, a better approach is simply to require the judge to find that the hearsay offered under Rule 807 is trustworthy.
Trustworthiness can best be defined as a consideration of both circumstantial guarantees and corroborating evidence. Most courts find corroborating evidence to be relevant to the reliability enquiry, but some do not. 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, as corroboration is a typical source for assuring that a statement is reliable.
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” have not served any purpose. The inclusion of the language “material fact” is in conflict with the studious avoidance of the term “materiality” in Rule 403 — and that avoidance was well-reasoned, because the term “material” is so fuzzy. 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 because that guidance is already provided by Rule 102. These provisions were added to the residual exception to emphasize that the exception was to be used only in truly exceptional situations. Deleting them might change the tone a bit, to signal that while hearsay must still be reliable to be admitted under Rule 807, there is no longer a requirement that the use must be rare and exceptional.
The requirement in the residual exception that the hearsay statement must be “more probative than any other evidence that the proponent can obtain through reasonable efforts” should be retained. This will preserve the rule that proponents cannot use the residual exception unless they need it. And it will send a signal that the changes proposed are modest — there is no attempt to allow the residual exception to swallow the categorical exceptions, or even to permit the use the residual exception if the categorical exceptions are available.
The Fordham Law Review has published two articles discussing and critical of the proposed changes to FRE 807: “The Three Commandments of Amending the Federal Rules of Evidence” by Victor Gold and “Expanding (or Just Fixing) the Residual Exception to the Hearsay Rule” by Daniel J. Capra.
Photo by Bill Smith.