Rule 807 Residual Exception

Advisory Committee Note

Modeled on federal practice, Rule 807 combines, transfers, and amends the contents of former Rules 803(24) and 804(b)(5). Rule 807 thus promotes uniform interpretation and addresses a number of recurring issues that courts have encountered in applying the residual exceptions.

Rule 807 reflects the realization that the law is not stagnant. As the FRE Advisory Committee Note indicates, it would be presumptuous to assume that the contemporary legal community has enumerated every single hearsay exception which possibly could exist. The exceptions are not a closed system, and Rule 807 allows for the future development of the law when the guarantees of reliability and trustworthiness can be found. While this rule allows for judicial discretion, it does not permit an unfettered discretion that could ultimately devour the hearsay rule. Before admitting statements under this rule, the judge must make a finding that the statements being offered are sufficiently trustworthy and reliable. See Cummins v. State, 515 So. 2d 869 (Miss. 1987), overruled on other grounds by Morgan v. State, 703 So. 2d 832 (Miss. 1997). One of the clearest examples of the circumstances meeting the criteria of Rule 807 is found in Dallas County v. Commercial Union Assur. Co., 286 F .2d 388 (5th Cir. 1961).

Rule 807 directs a court to determine whether the hearsay is supported by sufficient guarantees of trustworthiness, rather than decide whether the proffered hearsay carries “equivalent” circumstantial guarantees of trustworthiness as required previously by Rules 803(24) and 804(b)(5). The “equivalence” standard was difficult to apply, given the different types of guarantees of reliability, of varying strength, found among the standard exceptions. Nor did the equivalence standard serve to guide a court’s discretion, both because the court was free to choose among a spectrum of exceptions for comparison and because some trustworthy statements cannot be compared usefully to any standard exception. As with any hearsay statement offered under an exception, the court’s threshold finding under Rule 104(a) that admissibility requirements are met merely means that the jury may consider the statement—not that it must assume the statement to be true.

Under Rule 807(a)(1), trustworthiness requires an evaluation of two factors:

(1) circumstantial guarantees surrounding the making of the statement; and (2) corroborating evidence. Regarding the making of the statement, the court should weigh “whether the statement was written or oral, the character of the statement, the relationship of the parties, the motivation of the declarant in making the statement, and the circumstance under which the statement was made.” Cummins v. State, 515 So. 2d 869, 874 (Miss. 1987) (citing Weinstein, Evidence, Vol. 4, p. 803 (1985)), overruled on other grounds by Morgan v. State, 703 So. 2d 832 (Miss. 1997). The factors detailed in the Advisory Committee Note to the tender years exception in MRE 803(25) are instructive, as they were first developed as trustworthiness factors under the residual exceptions. See also Graham, 8 Handbook of Federal Evidence §807:1 (2019) (“Relevant factors bearing upon the ascertainment of trustworthiness include (1) the declarant’s partiality, i.e., interest, bias, corruption, or coercion, (2) the presence or absence of time to fabricate, (3) suggestiveness brought on by the use of leading questions, and (4) whether the declarant has ever recanted or reaffirmed the statement.”) (citations omitted); Martin, Saltzburg, & Capra, 4 Federal Rules of Evidence Manual, §807.02 (2019) (detailing thirteen “standard factors all courts consider in evaluating the trustworthiness of a declarant’s statement under the residual exception”).

Rule 807(a)(1) specifically requires the court to take corroborating evidence into account. The rule recognizes that the existence or absence of corroboration is relevant to—but not dispositive of—whether a statement should be admissible under this exception. Of course, the court must consider not merely whether corroborating evidence exists but also the strength and quality of that evidence. See Holliman v. State, 178 So. 3d 689, 704 (Miss. 2015) (deceased victim’s statement that defendant had locked her in a closet during a fight was trustworthy because another witness testified that she saw it happen); Randall v. State, 806 So. 2d 185, 206 (Miss. 2001) (noting the proffered statement “dove-tailed” with other evidence).

Rule 807(a)(2) requires the proponent to show that the hearsay statement is more probative than any other evidence that the proponent can reasonably obtain. This works to prohibit parties from proceeding directly to the residual exception without first considering the admissibility of the hearsay under Rules 803 and 804. While a court is not required to make a finding that the evidence is not admissible under a Rule 803 or 804 exception, the proponent cannot seek admission under Rule 807 if it is apparent that the hearsay could be admitted under a standard exception. In this way, the necessity requirement prevents the residual exception from eroding the hearsay rule or the standard exceptions. See Robinson v. State, 248 So. 3d 892, 897 (Miss. Ct. App. 2018). At the same time, considering the admissibility of the hearsay under the standard exceptions can also impact the trustworthiness inquiry. Sometimes a hearsay statement will approach, but fail to satisfy fully, the requirements of a Rule 803 or 804 exception. In those instances where evidence almost, but not quite, fits a standard exception, a court should—in addition to evaluating all relevant guarantees of trustworthiness—take into account the reasons that the hearsay misses the admissibility requirements of the standard exception. In this situation, sometimes called a “near miss,” the court should “consider why the evidence is excluded under the other hearsay exception, and any special facts and circumstances in the case relating to trustworthiness.” See Paul F. Rothstein, Fed. Rules of Evidence 3d. Ed, Rule 807, III. B. (emphasis supplied). See also United States v. Clarke, 2 F.3d 81, 84 (4th Cir. 1993) (Under the trustworthiness inquiry, “litigants and courts spend their time more productively in analyzing the trustworthiness of the particular statement, rather than debating the abstract question of “How close is too close?” to a specified hearsay exception.”)

In deciding whether the statement is supported by sufficient guarantees of trustworthiness, the court should not evaluate the credibility of any witness who relates the declarant’s hearsay statement in court. The credibility of an in-court witness does not present a hearsay question. To base admission or exclusion of a hearsay statement on the witness’s credibility would usurp the jury’s role of determining the credibility of testifying witnesses. The rule provides that the focus for trustworthiness is on circumstantial guarantees surrounding the making of the statement itself, as well as any independent evidence corroborating the statement. The credibility of the witness relating the statement is not a part of either enquiry. The requirements previously found in Rules 803(24) and 804(b)(5) that residual hearsay must be evidence of a material fact and that its admission will best serve the purposes of these rules and the interests of justice have been deleted. These requirements have proven superfluous of Rules 102 and 401.

In providing notice under Rule 807(b), the proponent must disclose the “substance” of the statement. This term is intended to require a description that is sufficiently specific under the circumstances to allow the opponent a fair opportunity to meet the evidence. See Rule 103(a)(2) (requiring that the party making an offer of proof inform the court of the “substance” of the evidence). An opponent can seek relief from the court if additional disclosures are necessary, for example if the declarant’s address is critical and cannot be obtained by the opponent through other means. Importantly, the rule also requires that the pretrial notice be in writing, which is satisfied by notice in electronic form. See Rule 101(b)(4).

Rule 807(b) explicitly includes a good cause exception to the pretrial notice requirement, which the Mississippi Supreme Court recognized in Randall v. State, 806 So. 2d 185, 204–5 (Miss. 2001) (noting the Court has excused “technical” violations of the notice requirement). Experience under the residual exception has shown that a good cause exception is necessary in certain limited situations. For example, the proponent may not become aware of the existence of the hearsay statement until after the trial begins, or the proponent may plan to call a witness who without warning becomes unavailable during trial. When notice is provided during trial after a finding of good cause, the court may need to employ protective measures, such as a continuance, to assure that the opponent is not prejudiced. See Randall v. State, 806 So. 2d 185, 204–5 (Miss. 2001).

Of course, even when the requirements of Rule 807 are met, if the hearsay statement is offered against a defendant in a criminal case the independent requirements of the Confrontation Clauses of the United States and Mississippi Constitutions must be satisfied. See Crawford v. Washington, 124 S. Ct. 1354

(2004) (The confrontation clause forbids “admission of testimonial statements of a witness who did not appear at trial unless [the witness is] unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”); Davis v. Washington, 126 S. Ct. 2266 (2006) (Among other things, prior testimony, depositions, affidavits, and confessions are testimonial, as are forensic reports and other statements to police if “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”). See also Rubenstein v. State, 941 So. 2d 735 (Miss. 2006) (applying Rule 804(b)(5) in light of Crawford and finding statements nontestimonial); Armstead v. State, 196 So. 3d 913 (Miss. 2016) (forensic reports).

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION