Federal court practitioners should be aware that, as of December 1, 2019, the Federal Rules of Evidence’s “Residual Hearsay Exception,” Rule 807, has been revised. The revisions are intended to create a more uniform standard for assessing the “trustworthiness” of proffered statements and to change the notice requirements to be more workable and uniform. In addition, they eliminate redundant requirements contained elsewhere in the Rules.[1]
The Residual Hearsay Exception
Rule 807 permits the admission of hearsay evidence when the proponent has complied with its notice requirements and can show that the evidence has sufficient indications of trustworthiness and is more probative than any other evidence the proponent could have provided. As revised, this “Residual Hearsay Exception” could become a more useful tool for practitioners.
Rule 807 Revised Text
(a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804:
(1) the statement is supported by sufficient guarantees of trustworthiness – after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and
(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 notice of the 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 in writing before the trial or hearing – or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.
Changes to Trustworthiness Standard
The former standard of trustworthiness required under Rule 807 was “equivalent circumstantial guarantees of trustworthiness.” Because the Rule specifically refers to Rules 803 and 804, there was confusion about whether the “circumstantial guarantees of trustworthiness” had to be equivalent to those required under Rules 803 or 804.[2] This proved particularly confusing when considering evidence that would be a near-miss under the Forfeiture Exception of Rule 804(b)(6), which does not require any guarantee of trustworthiness.[3]
As revised, the Rule now requires that the proponent show “sufficient guarantees of trustworthiness,” which are to be considered under the totality of the circumstances along with any corroborating evidence. Though “sufficient” does not draw a clear line for attorneys or judges, it does remove a layer of ambiguity from the Rule, and vests judges with discretion to determine what is “sufficient” after considering the circumstances.[4]
Further, the Rule requires consideration of corroborating evidence. While most courts had previously required corroborating evidence, some did not.[5] The explicit mandate in the revised Rule to consider corroborating evidence should make the courts’ trustworthiness determination more uniform.
The impact of the revisions to Rule 807 is already evident. The Eastern District of California, relying on the Advisory Committee’s notes on the 2019 amendment, focused on “circumstantial evidence surrounding the making of the statement itself, as well as any independent evidence corroborating the statement” to admit statements by coram nobis counsel. Sandhu v. United States, No. 2:05-cr-00449, 2020 WL 417542, *6 (E.D. Cal. Jan. 27, 2020). Further, the District Court of North Dakota admitted a child sex abuse victim’s prior statements, holding that they were “supported by sufficient guarantees of trustworthiness,” taking into account the circumstances under which the child was interviewed. United States v. Counts, No. 3:18-cr-00141, 2020 WL 598526, *2 (D. N.D. Feb. 7, 2020). In the Southern District of Ohio, the Court, pursuant to Rule 807(a), denied the plaintiffs’ motion in limine to exclude interview summaries. Hobart Corp. v. Dayton Power & Light Co., No. 3:13-cv-115, 2020 WL 614698, *2 (S.D. Ohio Feb. 10, 2020). In analyzing the totality of the circumstances, the Court considered “the declarant’s relationship to the parties, the motive of the declarant in making the statement, the extent to which the statement reflects the declarant’s personal knowledge, and the consistency of any past statements by the declarant.” Id. Finally, the Southern District of New York reasoned that a declaration containing voting records for the deceased declarant were “supported by sufficient guarantees of trustworthiness” and that the opponent had been given reasonable notice and “ample ‘opportunity to meet’” the evidence, as evidenced by the opponent’s declination to depose the declarant. Common Cause/New York v. Brehm, __ F. Supp. 3d __, NO. 17-CV-6770, 2020 WL 122589, *2 n.1 (S.D. N.Y. Jan. 10, 2020).
Changes to Notice Requirements
The new notice requirements in Rule 807 are more pragmatic and harmonize notice requirements throughout the Rules. Prior to the revisions, proponents could only admit evidence through Rule 807 if they gave notice prior to trial. This did not accommodate for situations where witnesses suddenly became unavailable during trial or where the proponent did not become aware of the hearsay evidence until trial.[6] Now, proponents may give notice during trial, but must make a showing of good cause for not providing earlier notice. This provision is consistent with Rule 404(b)(2)(B), which allows a prosecutor to admit evidence of a bad act (for a permitted purpose) during trial without prior notice upon a showing of good cause.
The revisions should also reduce conflicts over whether notice has been given by requiring written notice before trial. This written notice must provide the “substance and the declarant’s name”, as compared to the former rule which required the notice to provide the “particulars, including the declarant’s name and address.” In addition to removing the requirement for the declarant’s address (which could prove impossible for an unavailable declarant), the structure of this change likely requires parties to provide more detail on the statements. The former Rule could be read to require notice only of “particulars,” which would include name and address, and seems to only indicate logistic details of the hearsay statement. The amended Rule, by contrast, requires that the proponent provide the name, as well as the substance of the statement. This Rule has already been used proactively for pretrial disclosures. Recently, the Middle District of Pennsylvania granted a criminal defendant’s Motion for Disclosure and ordered the Government to provide written notice of any statements falling under Rule 807 at least ten days before trial. United States v. Buckner, No. 3:18-CR-00349, 2020 WL 211403, *7–8 (M.D. Pa. Jan. 13, 2020).
Elimination of Extraneous Provisions
The final category of revisions to Rule 807 is the elimination of extraneous provisions.[7] Former Subsection (a)(2), requiring that the hearsay evidence was “offered as evidence of a material fact,” was duplicative of Rule 401 and has been deleted. Additionally, former Subsection (a)(4), requiring that “admitting [the hearsay evidence] will best serve the purposes of these rules and the interests of justice,” was duplicative of Rule 102 and has been deleted.
What Has Not Changed
Though Rule 807 has undergone multiple changes, a few key points of its operation have remained the same. First, proponents may not seek admission under Rule 807 if it is clear that the hearsay evidence could be admitted under either Rule 803 or 804.[8] Further, under subsection (1)(b), the evidence must still be “more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.”
[1] Fed. R. Evid. 807 advisory committee’s notes on 2019 amendment.
[2] David G. Campbell, Committee on Rules of Practice and Procedure of the Judicial Conference of the United States: Memorandum to Clerk of the Supreme Court of the United States: Summary of Proposed Amendments to the Federal Rules (Oct. 24, 2018), https://www.fjc.gov/sites/default/files/materials/30/scotus_federal_rules_package_2018_0.pdf.
[3] See Fed. R. Evid. 807 advisory committee’s notes on 2019 amendment.
[4] Id.
[5] Id.
[6] See id.
[7] See id.
[8] Id.
