Evidence - Rule 807 – Residual Exception

Rivers v. United States, 777 F.3d 1306 (11th Cir. 2015)

The residual exception to the hearsay rule, Rule 807, was designed to be used rarely, in exceptional circumstances, when exceptional guarantees of trustworthiness exist and when high degrees of probativeness and necessity are present. At the heart of a Rule 807 determination is the trustworthiness of the declarant’s out of court statement, not the credibility or reliability of the witness who, in court, is reciting what the declarant said. The witness who is reciting what was said can be cross-examined in court and his memory of the declarant’s statement can be challenged and the jury (or judge) can evaluate the credibility and memory of the witness. Rule 807, however, focuses on the out-of-court declarant’s credibility and the trustworthiness of what the declarant said. The declarant is not available to be cross-examined, so there must be circumstantial guarantees of trustworthiness that instill in that out-of-court statement reliability. One factor that the court may consider is whether there is corroborating evidence that supports the out-of-court statement. But the corroborating evidence must be “extraordinarily strong before it will render the hearsay evidence sufficiently trustworthy to justify its admission.”

Christie v. Hollins, 409 F.3d 120 (2d Cir. 2005)

The prior testimony of a defense witness should have been admitted in this case in light of the showing by the defense that diligent efforts had been made to locate the witness and she had not been located.

United States v. Brothers Const. Co. of Ohio, 219 F.3d 300 (4th Cir. 2000)

Grand jury testimony of an unavailable witness should not have been admitted under the residual exception to the hearsay rules, Rule 804(b)(5). Harmless error.

United States v. Canan, 48 F.3d 954 (6th Cir. 1995)

In Williamson v. United States, 114 S.Ct. 2431 (1994), the Supreme Court held that in order to introduce a hearsay statement under Rule 804(b)(3), the district court must go through the statement line-by-line to determine if the statements are against the declarant’s penal interest. In this case, the Sixth Circuit holds that the same inquiry must be undertaken when out-of-court statements are introduced pursuant to Rule 804(b)(5). Thus, the “circumstantial guarantees of trustworthiness” must be found in each assertion of the hearsay statement. The district court should review the statement “sentence by sentence” in order to comply with the confrontation clause and Rule 804(b)(5).

United States v. Gomez-Lemos, 939 F.2d 326 (6th Cir. 1991)

The grand jury testimony of a co-conspirator was not admissible under Rule 804(b)(5). Even though the testimony was corroborated by other witnesses, the presence of corroboration does not satisfy the requirement for other “indicia of reliability.” Idaho v. Wright, 110 S.Ct. 3139 (1990)(indicia of reliability must come from surrounding circumstances of the statement).

United States v. York, 852 F.2d 221 (7th Cir. 1988)

The government introduced statements by a fourteen-year-old to a probation officer. The fourteen-year-old was describing events which occurred five years earlier. The probation officer to whom the fourteen-year-old had made these statements made no transcript of the interview; thus preventing the Court from determining whether there were leading questions or other suggestive means of eliciting the statements of the child. The evidence was inadmissible under the residual exception to the hearsay rule.

United States v. Harbin, 112 F.3d 974 (8th Cir. 1997)

The government offered the grand jury testimony of a witness who was supposedly unavailable to testify, because she could not be located. However, the government failed to offer sufficient proof that it had made efforts to locate the witness. The government may not rely on general statements that “we can’t find her” or “she is avoiding service of a subpoena.”

United States v. Lang, 904 F.2d 618 (11th Cir. 1990)

An unavailable witness’ grand jury testimony which lacks circumstantial guarantees of trustworthiness is not admissible under Rule 804(b)(5). Although the Eleventh Circuit has not adopted a per se rule excluding grand jury testimony, in three reported decisions, this testimony has not been admitted under Rule 804(b)(5), United States v. Gonzalez, 559 F.2d 1271 (5th Cir. 1977); United States v. Thevis, 665 F.2d 616 (5th Cir. 1982); United States v. Fernandez, 892 F.2d 976 (11th Cir. 1989).

United States v. Fernandez, 892 F.2d 976 (11th Cir. 1989)

The government introduced the grand jury testimony of a witness who died prior to trial. The witness’ death was of natural causes unrelated to the defendants. In a lengthy review of Rule 804(b)(5), the Eleventh Circuit concludes that such testimony is not admissible absent an extraordinary showing of trustworthiness.