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October 27, 2021 Articles

Catching Up with the Catchall Hearsay Exception

Recent trends applying the 2019 amendments to Federal Rule of Evidence 807.

By Jeffrey E. Gross and Vincenzo Novelli

For many years, Federal Rule of Evidence 807 reflected a rough compromise that provided a path to admit some evidence that did not satisfy the strict admissibility requirements for hearsay exceptions in Rules 803 and 804, but this exception rarely applied in practice. The language of Rule 807 made clear that it was a last resort, which applied only to evidence that was “more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.” Fed. R. Evid. 807(a)(2). And it has long been true, both under Rule 807 and its predecessors, that a party may not seek to avail itself of Rule 807 if the court could admit the evidence under another hearsay exception. (The residual exception was moved to Rule 807 by a 1997 amendment combining what were then Rules 803(24) and 804(b)(5) to “facilitate additions to Rules 803 and 804.” Bohler-Uddeholm Am., Inc. v. Ellwood Grp., 247 F.3d 79, 112 n.17 (3d Cir. 2001) (quoting Fed. R. Evid. 807 advisory committee notes to 1997 amendment).)

In December 2019, Rule 807 was amended in ways that suggested a guarded expansion of the rule. The three main changes summarized below permit the introduction of certain evidence that would not have satisfied the prior version of Rule 807. Arguably, the changes to the text suggest that the purpose of the amendments was to “allow the admission of more hearsay if it is reliable.” United States v. Smith, No. CR 19-324 (BAH), 2020 WL 5995100, at *5 (D.D.C. Oct. 9, 2020) (quoting Daniel J. Capra, “Expanding (or Just Fixing) the Residual Exception to the Hearsay Rule,” 85 Fordham L. Rev. 1577 (2017)). Yet, the advisory committee notes to the amended rule state otherwise. Specifically, the stated goal was to clarify the rule and address some practical issues in interpreting the prior rule. Fed. R. Evid. 807 advisory committee notes to 2019 amendment (“Rule 807 has been amended to fix a number of problems that the courts have encountered in applying it.”). Cases decided under the amended rule in the nearly two years since the amendment’s adoption reflect this tension between whether the amendment is better viewed as an expansion or a mere tinkering with its application. The emerging results thus far suggest only a modest expansion to the circumstances that persuade courts to admit evidence that does not fall within one of the hearsay exceptions in Rules 803 and 804 despite the three ways the amendment opened the door somewhat to admitting hearsay.

First, the amendment to Rule 807 changed, and arguably softened, the trustworthiness standard for this residual hearsay exception. Under the former rule, the evidence had to have “equivalent circumstantial guarantees of trustworthiness” compared with evidence admissible under Rules 803 or 804. But the amended rule requires less than that, requiring the proponent to establish that “the statement is supported by sufficient guarantees of trustworthiness—after considering the totality of the circumstances under which it was made and evidence, if any, corroborating the statement.” Fed. R. Evid. 807(a)(1). The advisory committee notes describe this change as a practical fix because different hearsay exceptions have different inherent levels of trustworthiness, and evidence fitting one exception—Rule 804(b)(6)—is admissible without evidence of its reliability. Fed. R. Evid. 807 advisory committee notes to 2019 amendment (“The ‘equivalence’ standard is difficult to apply, given the different types of reliability, of varying strength, found among the categorical exceptions (as well as the fact that some hearsay exceptions, e.g., Rule 804(b)(6) are not based on reliability at all).”). Even though the notes frame this change as a clarification, the new requirement that a statement’s trustworthiness be merely “sufficient” suggests a standard that is easier to meet than the prior rule. And the requirement that the court consider the totality of the circumstances and the presence of corroborating evidence may give courts more latitude to admit evidence under the exception. For example, a proponent of evidence can seek a Rule 104(a) hearing, at which the Rules of Evidence do not apply. Thus, this change should be considered an expansion of the prior rule, particularly in circuits that previously refused to consider other corroborating evidence when determining admissibility under Rule 807. United States v. Reed, 908 F.3d 102, 120–21 (5th Cir. 2018) (under the former Rule 807, “[t]he determination of trustworthiness is drawn from the totality of the circumstances surrounding the making of the statement, but it cannot stem from other corroborating evidence” (citation omitted)).

Second, the amended Rule 807 introduced more flexibility into the requirement that the proponent give notice before seeking admission under the residual hearsay exception. The prior rule required notice before trial, but the revised rule allows notice during trial if the proponent establishes good cause for not giving notice earlier. This change opens the possibility of using the exception to admit evidence uncovered during trial. In addition, the revised rule made the notice requirement more specific and practical. The proponent must provide notice “in writing” and include the statement’s “substance and the declarant’s name.” The prior version of the rule required giving notice “of that statement and its particulars, including the declarant’s name and address.” The revised notice requirement is more practical because, for example, the address of a declarant may be unknown.

Third, the amended Rule 807 removed some language that the advisory committee notes considered superfluous. Yet, the removal of arguably redundant language could increase the likelihood of admitting evidence under this exception. The former rule required a showing that (1) the proponent offered the evidence to prove a “material fact” and (2) introducing it would serve the purpose of the Rules of Evidence and the interests of justice. The amended rule omits those requirements. The advisory committee notes explain that these provisions were eliminated because they duplicate other rules: Rule 401 (relevance) and Rule 102 (purpose of Rules of Evidence). Fed. R. Evid. 807 advisory committee notes to 2019 amendment.

But does removing the requirement that hearsay advance a “material fact” lack a substantive effect? At least some courts and commentators discussing the prior rule believed that the requirement that a proponent offer “material” evidence required something more than just meeting the standard for relevance under Rule 401. United States v. Gaitan-Acevedo, 148 F.3d 577, 589 (6th Cir. 1998) (declining to find that trial court erred in denying admission of evidence under catchall exception when it was “not material” to the determination of guilt); Graham, Handbook of Federal Evidence § 807:1 n.18 (evidence admitted under residual hearsay exception had to be “of substantial importance in determining the outcome of the litigation”). Surely, the repeated admonition that evidence had be to “material” in the prior Rule 807 had some effect on some judges, tipping the scales against admitting it. This is not just speculation: The advisory committee notes to Rule 401 observe that the word “material” can suggest something more than mere relevance and that the term is “loosely used and ambiguous.” Fed. R. Evid. 401 advisory committee notes to 1972 proposed rules. Arguably, the prior rule’s reminder for courts to stop and consider the overall intent of the Rules of Evidence and the interests of justice presented yet another reason to be disinclined to introduce evidence under the residual exception. In theory, the removal of these provisions could make an easier path to admit evidence under Rule 807.

But in practice, the revised language of Rule 807 has not led to a wave of admitted evidence under the residual exception, at least not thus far. In fact, many courts have not focused on the significance of the changes to Rule 807(a)(1). Instead, they have focused on the requirement that evidence be “more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts” as a reason to construe this exception narrowly. Fed. R. Evid. 807(a)(2). The District Court for the District of Columbia, for example, noted that even if the 2019 amendments broadened the scope of Rule 807(a)(1), “the Rule’s continued and express insistence that the proffered hearsay be more probative on the point for which it is offered than any other reasonably attainable evidence means the out-of-court-statement must still be very important and very reliable to be admitted under the rule.” United States v. Smith, No. CR 19-324 (BAH), 2020 WL 5995100, at *5 (D.D.C. Oct. 9, 2020) (citations and quotations omitted) (admitting hearsay statements from victim interview). Recent case law shows some courts have assessed the probative value and reliability of the proffered evidence simultaneously, arguably collapsing the two prongs of Rule 807(a), which appears to have an effect of making it harder to apply the residual exception. In Morgan-Hicks v. New Jersey Department of Corrections, for example, the District Court for the District of New Jersey denied admission of interrogatory answers under Rule 807 because they were unreliable and therefore were not more probative than other evidence, even though the court did not mention what other evidence was more probative. No. CV 17-655 (RMB-JS), 2020 WL 1983705, at *6 (D.N.J. Apr. 24, 2020).

Another way that some courts have blurred the analyses of probative value and reliability is by examining indicia of trustworthiness, such as sworn oaths and whether the declarant is subject to cross-examination, as relevant to weighing the probative value under Rule 807(a)(1). For example, in Arreola v. Aguilar, the District Court for the Middle District of Georgia held that statements by a since-deceased witness to alleged police brutality were inadmissible under Rule 807. No. 4:19-CV-5 (CDL), 2021 WL 2403446, at *2 (M.D. Ga. June 11, 2021). The court excluded the evidence because another witness’s testimony was more probative, noting that the other witness could testify under oath and be cross-examined. Id. The District Court for the District of Massachusetts similarly rejected the admission of hearsay emails as insufficiently probative because the email authors could be called to testify or could have been deposed. Conning v. Halpern, No. 18-CV-12336-ADB, 2021 WL 2646672, at *3 (D. Mass. June 28, 2021). Likewise, the District Court for the Northern District of Illinois concluded that online chat records with Amazon customer service representatives were not admissible under the “more probative” prong of Rule 807(a)(2). The crux of the court’s reasoning was that “if a witness were called in lieu of admitting the declaration, the parties would likely obtain more information about the meaning of the statement in question.” BookXchange FL, LLC v. Book Runners, LLC, No. 19 C 506, 2020 WL 7027616, at *3 (N.D. Ill. Nov. 30, 2020).

Even when some courts have expressly considered the new trustworthiness standard, which is whether evidence is “supported by sufficient guarantees of trustworthiness,” they have still looked for specific markers of trustworthiness, such as whether the statement was under oath and whether the declarant was subject to cross-examination. NGM Ins. Co. v. Santos, 483 F. Supp. 3d 1, 7–8 (D. Mass. 2020). One reading of such cases is that courts seem to be applying the prior rule’s “equivalence” standard for trustworthiness, only doing so indirectly. In NGM Insurance Co. v. Santos, the District Court for the District of Massachusetts excluded a recorded conversation between an insurance policy holder and a claims adjuster, citing the new rule’s “totality of the circumstances” standard for trustworthiness. Id. The primary basis for the ruling was that the declarant “was not under oath or subject to cross-examination during her conversation,” once again incorporating equivalence into the trustworthiness standard. Id. Similarly, in one of the few appellate decisions on the amended Rule 807, the Eighth Circuit affirmed the South Dakota District Court’s decision excluding a statement made to the Federal Bureau of Investigation, mostly because the declarant was not under oath. United States v. Bruguier, 961 F.3d 1031, 1033 (8th Cir. 2020). This pattern in cases that deny admission under the amended Rule 807 span multiple jurisdictions and circuits; district courts in New York and Florida have also issued rulings relying on oaths and adversarial scrutiny to admit evidence offered under the amended Rule 807. Cont’l Indus. Grp., Inc. v. Altunkilic, No. 14-CV-790 (AT) (JLC), 2020 WL 3884312, at *6 (S.D.N.Y. July 1, 2020); In re 3M Combat Arms Earplug Prod. Liab. Litig., 338 F.R.D. 167, 172–73 (N.D. Fla. 2021).

In sum, while the body of law interpreting amended Rule 807 is developing slowly, and there are scant appellate rulings thus far, the cases suggest that the amendment has resulted in only a moderate expansion of the types and amount of evidence admitted under the residual hearsay exception.

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Jeffrey E. Gross

Jeffrey E. Gross is a partner at Reid Collins and Tsai LLP in New York City, New York.A

Vincenzo Novelli

Vincenzo Novelli is a senior associate at Reid Collins and Tsai LLP in New York City, New York.A

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