Class 23: Residual Hearsay Exception, Attacking a Declarant's Credibility - Apr. 2

Question 1

What is the most important aspect of the residual exception to the rule against hearsay? (Q)

Answer 1

A statement’s trustworthiness is the most important aspect of the residual exception to the rule against hearsay. Each of the individual hearsay exceptions were adopted because the statements all had independent guarantees of trustworthiness under the circumstances. Factors indicating trustworthiness include:

the relationship between the declarant and the person to whom the statement was made,
the declarant’s capacity when the statement was made,
the declarant’s character for truthfulness,
whether the declarant later recanted the statement,
whether the declarant made other consistent or inconsistent statements,
whether the declarant’s behavior was consistent with the statement, and
whether the statement is corroborated by other evidence or statements of others. (NOF)

Question 2

What is the catch-all (residual) hearsay exception? (Q)

Answer 2

The catch-all or near-miss hearsay exception is the residual exception to the rule against hearsay. Under this exception, a hearsay statement is not excluded by the rule against hearsay, even if it does not fall within an otherwise-enumerated exclusion or exception, if:

the statement has circumstantial guarantees of trustworthiness equivalent to those in existing specific hearsay rules,
the statement is offered as evidence of a material fact,
the statement is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts, and
admitting it will best serve the purposes of the Federal Rules of Evidence and the interests of justice.
Evidence is admissible under the residual exception only if the proponent provides an adverse party reasonable notice. (NOF)

Question 3

Is there any notice requirement for using the residual hearsay exception at trial? (Q)

Answer 3

Yes. There is a notice requirement for using the residual hearsay exception at trial. The party intending to use the residual hearsay exception must give reasonable, advance notice before trial to the adverse party. The notice must include the details of the statement and the declarant’s name and address. (NOF)

Question 4

When a hearsay statement or a statement exempted from the definition of hearsay is admitted into evidence, may the declarant’s credibility be attacked? (Q)

Answer 4

Yes. When a hearsay statement or a statement exempted from the definition of hearsay is admitted into evidence, the declarant’s credibility may be attacked by any evidence that would be admissible for those purposes had the declarant testified at trial. This is also true for rehabilitating a declarant’s credibility after it has been attacked. (NOF)

Question 5

What FRE governs the ability to question the credibility of the declarant? (LII)

Answer 5

FRE 806.

Question 6

What does FRE 806 say? (LII)

Answer 6

The party against whom a hearsay exception is brought is allowed to question the credibility of the declarant. Can bring in the declarant’s criminal past if the person isn’t there. Can bring in witnesses to show the person has a bad character for truthfulness.

Question 7

While questioning the credibility of the declarant’s statement, can you bring up the declarant’s criminal past if the person is not there? (Russo)

Answer 7

Yes.

(FRE 806) (4/2)

Question 8

While questioning the credibility of the declarant’s statement, can you bring in witnesses to show the person has a bad character for truthfulness? (Russo)

Answer 8

Yes.

(FRE 806) (4/2)