New Relevance for the Residual Hearsay Exception

Back to law school: Hearsay (an out-of-court statement offered for the truth of the matter asserted) is generally excluded from evidence. The reason is that hearsay statements are not subject to probing cross-examination and so, in most cases, are considered less reliable. Nevertheless, Federal Rules of Evidence 803 and 804 contain many specific exceptions to the rule against hearsay. In addition to the specific exceptions, Rule 807 provides the so-called residual exception to hearsay.

On December 1, 2019, the residual-hearsay exception will undergo some significant changes that may open the path to the greater admissibility of hearsay evidence, provided that it is found to be “trustworthy” by the court. A close review of the new rule is in order by all litigators, but a few key takeaways can be identified:

• The rule now requires the court to consider the “totality of circumstances” under which the hearsay statement was made, and is no longer tied to “equivalent” guarantees of trustworthiness as are found under Rules 803 and 804.
• The rule now expressly authorizes consideration of other, corroborating, evidence in demonstrating the trustworthiness of the hearsay statement. Previously, that was unclear, which resulted in some courts refusing to consider corroborating evidence.
• While the prior rule required notice before trial of your intent to introduce hearsay evidence under the residual exception, the new rule also permits giving notice during trial, if the court determines that the lack of earlier notice should be excused for good cause.

Litigators should be preparing their cases for trial from the day they come in the door. That has always involved a proactive consideration of evidentiary issues, long before trial. With an expanded residual-hearsay exception, litigators have more reason than ever to consider whether those out-of-court statements might be sufficiently trustworthy to be admitted, even if no specific exception applies.