THE SCOPE OF THE RESIDUAL EXCEPTIONS
803 (24) & 804 (b) (5)
Robert Hammer
Independent Research
for
Professor Larkin
December 4, 1980
268
ABSTRACT
The residual hearsay exceptions 803 (24) and 804 (b)
(5) contained within the Federal Rules of Evidence permit the
admission of hearsay even though the declaration does not
fall within a specific exception.
Federal Rule 803 (24) per-
mits the admission of hearsay when the availability of the
declarant is immaterial.
Federal Rule 804 (b) (5) permits
the admission of hearsay when the declarant is unavailable.
However, the admission is contingent on the evidence having
equivalent circumstantial guarantees of trustworthiness as
well as (a) being offered as evidence of a material fact; (b)
being more probative on the point for which it is offered
than any other evidence which the proponent can procure
through reasonable efforts; and (c) best serving the interests of justice by its admission.
Moreover, a statement may
not be admitted under this exception unless its proponent
gives the adverse party sufficient notice in advance of the
trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it.
The codification of these
exceptions was expected to increase predictability.
At the
same time, there was a threat that they would create a closed
and unresponsive system or alternatively, would give judges
so much discretion that it would open the door to hearsay
and circumvent the enumerated exceptions.
Consequently, the
scope of the exceptions has arisen as controversy in the
269
courts.
In this article, legislative intent as well as court
decisions which have construed the scope of the catch-all
exception will be discussed with the hope of identifying a
trend or guideline to which courts are turning when determining the applicability of the exceptions.
The adversary legal system is founded on the premise
of recounting events in controversy.
has some inherent weaknessess.
demonstrative proceeding.
Obviously, this concept
A trial is, in essence, a
Usually, the jury must mentally
reconstruct the disputed fact from the verbal portrait adduced
through testimony.
Consequently, the jury is attempting to
find reasonable certainty by relying upon one's ability or
opportunity to observe, remember, and communicate his experiences accurately.
The hearsay rule is an attempt to improve
the quality of evidentiary certainty.
Dean Charles McCormick,
author of McCormick on Evidence, has defined hearsay as either
testimony in court or written evidence of a statement made
out of court, such evidence being offered as an assertion to
show the truth of the matter asserted therein, and which thus
rests for its value upon the credibility of the out of court
asserter."*"
Professor Edmund Morgan, also a noted author on
evidence, preferred to couch his definition in terms of the
dangers which the rule seeks to counter.
Consistency dic-
tates that whenever the trier is asked to rely upon the preception, memory, sincerity, or use of language of a declarant
who is not available for cross-examination, the hearsay rule
comes into play.
2
Federal Rule of Evidence 801 defines hear-
say as
(a)
STATEMENT. A "statement" is (1) an oral
or (2) nonverbal conduct of a person, if
it is intended by him as an assertion.
(b)
DECLARANT. A "declarant" is a person
who makes a statement.
(c)
HEARSAY. "Hearsay" is a statement other
than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.^
Federal Rule of Evidence 802 controls admission of
hearsay.
"Hearsay is not admissible except as provided by
these rules or by other rules prescribed by the Supreme Court
4
pursuant to statutory authority or by Act of Congress."
The application and purpose of the hearsay rule has
been argued on many occasions in the past.
The hearsay rule
is best understood after an examination of the policy reasons
that support the rule.
Perhaps the best expression of the
rationale behind the hearsay rule was given by the Supreme
Court in Chambers v. Mississippi:
The hearsay rule, which has long been recognized and respected by virtually every State,
is based on experience and grounded in the
notion that untrustworthy evidence should not
be presented to the triers of fact. Out-ofcourt statements are traditionally excluded
because they lack the conventional indicia of
reliability: they are usually not made under
oath or other circumstances that impress the
speaker with the solemnity of his statements;
the declarant's words are not subject to
cross-examination and he is not available in
order that his demeanor and credibility may
be assessed by the jury.5
3
The Fifth Circuit has also had occasion to define
hearsay and comment on the policy reasons behind its exclusion:
[H]earsay is any out-of-court statement introduced in evidence for proving the truth of the
matter stated. Most if not all of the mystery
and fog enshrouding this traditional enigmatic
rule of evidence evaporates if the textbook
definition, well entrenched in our case law,
is kept in mind. Most significantly . . . it
demolishes the fairly wide-spread misconception
that somehow words alone, if they are not the
words of the person testifying, must automatically be excluded. Words are not hearsay
unless they constitute statements, and out-ofcourt statements are themselves not hearsay
unless they are introduced for the purpose of
proving facts contained in, or asserted by,
those statements.6
This court then went on to identify the rationale behind the hearsay rule as based on the untrustworthiness of
hearsay statements:
[S]hould we not recognize that the rational
basis for the hearsay classification is not
the formula, "assertions offered for the
truth of the matter asserted," but rather
the presence of substantial risk of insincerity and faulty narration, memory and
perception? "7
In short, the hearsay rule is simply a practical extention of the policy reasons on which it is based.
Hearsay
is inadmissible because it creates a substantial risk of
g
untrustworthiness.
The purpose of its prohibitions is to
9
insure evidentiary reliability.
The rule against hearsay
is designed to sharpen the picture which will ultimately be
considered by the jury.
It is an attempt to improve the
quality of evidentiary certainty by requiring, to the extent
4
A
w if/C
r^HMO
feasible, that all testimony be given in open court where the
declarant may be tested by cross-examination while under oath
and subject to observation by the jury.
Conversely, if the
hearsay rule of exclusion were applied without qualification,
valuable evidence would be lost and great hardship would result.
Practical considerations require courts to admit some
hearsay in the interest of judicial efficiency.
This
raises the question of what hearsay is admissible.
Federal Rules of Evidence 803 and 804 provide for
specific exceptions to the hearsay rule.
These exceptions
generally provide for the admission of hearsay which meets
the standards of trustworthiness and reliability.
Under rule
803, there are twenty-three circumstances in which a hearsay
statement may be admissible.
Professor John Wigmore claimed
that a single rationale supports all of the exceptions:
they
are predicated upon necessity and some circumstantial guarantee of trustworthiness.^'"''
Despite the extensive array of specific hearsay exceptions in the Federal Rules, the Advisory Committee felt that
it would be presumptuous to assume that all desirable excep12
tions to the hearsay rule have been catalogued.
Therefore,
both rules adopted by the Supreme Court dealing with hearsay
exceptions concluded with an open-end exception.
This open-
end exception would admit any hearsay statement not specifically covered by any of the stated exceptions if the hearsay
statement was found to have comparable circumstantial guar-
5 280
antees of trustworthiness. 13
The House Committee on the Judi-
ciary deleted these provisions for fear of injecting too much
uncertainty into the law of evidence and of impairing the
14
ability of practitioners to prepare for trial.
The Senate
Committee on the Judiciary felt that, without any residual
provision, the enumerated exceptions could become tortured
beyond any reasonable circumstances which they were intended
to include. 15 The differences were compromised, and as
enacted, the provisions read:
A statement not specifically covered by any of
the foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness,
if the court determines that (A) the statement
is offered as evidence of a material fact; (B)
the statement is more probative on the point
for which it is offered than any other evidence
which the proponent can procure through reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will
best be served by admission of the statement
into evidence. However, a statement may not be
admitted under this exception unless the proponent of it makes known to the adverse party
sufficiently in advance of the trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, his intention to offer the statement and the particulars
of it, including the name and address of the
declarant.
The residual clause permits the admission of needed
and reliable hearsay evidence which does not otherwise qualify for admission under any of the standard exceptions.
This
type of admission is epitomized by a pre-code Fifth Circuit
decision in Dallas County v. Commercial Union Assurance Company. 17
In Dallas County, the court looked for two factors
6
274
before admitting hearsay evidence:
ness.
necessity and trustworthi-
Necessity, as the court defines it, is present when the
facts brought out by the hearsay statement would be lost
because the information cannot be expected to be obtained
from another source.
Trustworthiness is defined by the court
as being present in three kinds of situations:
(1)
Where the circumstances are such that a
sincere and accurate statement would
naturally be uttered, and no plan of
falsification be formed;
(2)
where, even though a desire to falsity
might present itself, other considerations, such as danger of easy detection
or the fear of punishment, would probably counteract its force; or
(3)
where the statement was made under such
conditions of publicity that an error,
it it had occurred, would probably have
been detected and corrected.18
The court
also noted that it would look for an absence of
bad memory, faulty narration, intent to influence the court
proceedings, and plain lack of trustworthiness.
More recently, several federal decisions have followed the Dallas County approach.
Two cases in the Fifth
Circuit apply 803 (24) to evidence offered in civil litigation.
Both are negligence cases where a safety code, not
enacted as law, is offered as proof of the required standard
19
of care.
Muncie Aviation Corp. v. Party Doll Fleet, Inc.
applies the criteria of Dallas County and finds both a practical necessity, in that the experts who compiled the safety
code could not be assembled to testify in person, and trust7
r)t *<£r
/WO
worthiness, in that the experts were concerned with safety
and had no interest in the case under litigation.
In Frazier
20
v. Continental Oil Company,
the court applies Muncie and
allows a safety code to come into evidence.
In each case,
the court found that this hearsay evidence was admissible on
the ground that it was reliable and needed despite the fact
that it appeared to satisfy no established exception to the
hearsay rule.
Prior to the adoption of the Federal Rules, the admissibility of hearsay was resolved by assessing need and reliability.
The five requirements of 803 (24) take generally the
same approach.
A brief discussion of cases decided pursuant
to rule 803 (.24) may exemplify such approach.
Two cases in particular illustrate the approach to
21
803 (24).
The first case is United States v. Iaconetti.
Judge Jack B. Weinstein authored the District Court opinion.
The defendant Iaconetti, a federal contract inspector, was
found guilty of soliciting and accepting a bribe.
The chief
witness was Mr. Lioi, an officer of the corporation.
During
the course of his duties, Iaconetti requested a bribe from
Lioi.
Lioi immediately contacted his business partner and
told him of Iaconetti's request.
told his attorney.
Later that evening, Lioi
At trial, the partner and the attorney
testified as to what Lioi told them Iaconetti has said and
the testimony was admitted for the truth of the matter
asserted by Lioi.
8
Qw D
/
Judge Weinstein analyzed Iaconetti methodically and
found all elements of 803 (24) present:
(1)
Trustworthiness.
He noted that Lioi had testi-
fied and was available for cross-examination.
"The fact that
the statement was made close on the heels of the criminal
event and to persons with whom it was appropriate and even
necessary to communicate would seem to mitigate the risks of
22
insincerity and faulty memory."
Weinstein observed that
these are the kinds of circumstantial guarantees which make
hearsay acceptable under the first three exceptions in rule
803.
(2)
Material fact.
The judge noted that there is
a general requirement in the federal rules that the evidence
23
be relevant.
(3)
Greater probative value.
The testimony of the
two rebuttal witnesses was the most powerful evidence of
what was said in view of the straight conflict between the
chief witness for the prosecution, Mr. Lioi, and the defendant.24
(4)
found that:
Interests of justice.
On this point, Weinstein
"There was a clear conflict of credibility.
The jury was entitled to all the help available on the point."
But, Weingstein felt that no substantial injustice had been
done since the circumstance was out of the control of the
proponent.
(5)
Notice.
Notice was not given until the trial
9 280
26
had begun in laconetti,
but Weinstein felt that no substan-
tial injustice had been done since the circumstance was out
of the control of the proponent.
laconetti is often cited by the Fifth Circuit in its
interpretation of rule 803 (24). See, inter alia, United
States v. Leslie, 27 United States v. Williams, 2 8 and United
States v. Barnes. 29
30
The second case is Erion v. Timken.
Although Erion
was decided in the state courts of Ohio, it turned on introduction of a declaration for the truth of the matter asserted.
Ohio adopted federal rule of evidence 803 (24) verbatim, and
Erion was decided just prior to the time the rule became controlling.
In Erion, the plaintiff, wife of a deceased employee
of the defendant, sued for benefits under the deceased's retirement plan.
Mr. Erion had discussed his retirement with
the company and, being assured that he would qualify for
retirement benefits, retired.
Upon his death, the widow
applied for the benefits and was told that he had not qualified.
Mrs. Erion testified over objection that her husband
had told her that he went to the company officer in charge
of benefits and was told that he was covered.
Mr. Erion's
brother also testified that he had been told by the deceased
about the discussions with the company.
The court admitted
the hearsay statements of the deceased as offered by the
widow and brother, for the truth of the matters asserted,
pursuant to the Ohio version of 803 (24).
The court made
its determination on the basis of the proposed federal rule
10
278
803 (24), although this section was not yet specifically controlling, and emphasized that a clear showing of the five
requirements had been put forth.
In so doing, the court
noted that the proposed federal rules 803 (24) and 804 (b)(5)
put into formal terms what had, in practice, been the Ohio
rule for that particular matter of hearsay.
Since there is an enormous variation in the guarantee of trustworthiness among the enumerated exceptions, a
wide range of discretion is granted the trial judge and consequently controversy has arisen.
For this reason, analysis
of the requirement may be beneficial.
Trustworthiness
In assessing the qualitative degree of trustworthiness of a particular statement, one should inquire into the
31
reliability of the statement.
several factors.
Reliability can be shown in
There is a strong indication of reliability
when statements are made under oath and any misrepresentation
or deliberate falsehood
32 might subject the declarant to the
sanctions of perjury.
An indication also exists when a
person possesses first-hand knowledge, when there is no reliance upon potentially erroneous information, and
33 when the
possibility of faulty recollection is minimized.
There is
also a strong indication of reliability when the event was
close enough in time to support the likelihood of accurate
recollection and to mitigate the possibility
that truth was
undercut by speculation or fabrication. 34 Lack of certain
11
elements may also indicate reliability:
When the declarant
is without a motive to falsify or when the usual dangers inherent in hearsay evidence are not present, such as lack of
memory, faulty narration, intent to influence court proceed35
m g s , and plain lack of trustworthiness.
In other words,
the statement must be made under circumstances that conform
to the general policies underlying the exceptions to the
hearsay rule.
36
The case of United States v. Barbatti
further de-
lineated the factors which may have a bearing on trustworthiness.
The court opined that such elements as the character
of the statement, the relationship of the parties, the probable motivation of the declarant in making the statement,
and the circumstances under which the statement is
37made are
relevant to the determination of trustworthiness.
Simi38
larly, the court in United States v. Mandel
felt that there
are strong indications of trustworthiness when the statements
are made while perceiving the very event about which the witness testified.
In other words, if the statement expresses
the declarant's present impression, there is a probability
that the statement is trustworthy.
Ample opportunity for
cross-examination or corroboration of the statement
by other
39
testimony are also indicia of trustworthiness.
It is important to note, however, that some of the
factors tending to show trustworthiness are subject to attack.
Phychologists have observed that most of the assumptions
12
280
upon which the exceptions are based cannot be supported. 40
The admission of hearsay under an exception for spontaneous
exclamation is predicated upon the assumption that one making
a statement shortly after a startling event does not have
sufficient opportunity to fabricate; hence, his statement is
more likely to be true than if he had not been under emotional
shock. 41
Psychology has shown that the time it takes to
42
reflect is so short it is immeasurable.
Furthermore, the
startling event usually causes an emotional reaction which
inhibits, rather than fosters accurate perception. 43
Material Fact
The admissibility of hearsay under 803 (24) also requires that the statement be offered as evidence of a material
44
fact.
It is important to note that this requirement would,
in any event, be required by rules 401 and 402. Federal Rule
of Evidence 402 states that:
[A]11 relevant evidence is
admissible, except as otherwise provided by the Congress . . .
or by the Supreme Court pursuant to statutory authority.
45
Evidence which is not relevant is not admissible."
Federal
Rule 401 defines "relevant evidence" as "evidence having a
tendency to make the existence of any fact that is of consequence to the determination of the action more probable
46 or
less probable than it would be without the evidence."
Judge Weinstein briefly discusses various courts1 interpretations
of the term
fact" "what
by pointing
to his
opin47 "material
ion m laconetti.
He says that,
is probably
meant
is that the exception should not be used for trivial or collateral matters." 4 8 The court in Huff v. White 4 9 followed
this line of thought.
In a wrongful death action arising
from fatal injuries suffered by plaintiff's decedent when the
truck that he was driving burned after a collision with a
concrete abutment, testimony that the decedent had told witnesses from his hospital bed, two days after the crash, that
his loss of control of the truck had occurred when he attempted to extinguish a fire on his trouser leg, was held
admissible under the residual exception. The statement constituted "evidence of a material fact" within the meaning of the
exception, since plaintiff had contended that the decedent's
fatal burns had resulted from ignition of the fuel tank
caused by faulty placement of the truck's battery.
The pos-
sibility of an alternative explanation, the pre-existing fire
in the plaintiff's decedent's clothing, rendered the prof50
fered statement plainly relevant.
In short, courts have
generally left the "material fact" criterion to the discretion of the judge, with common sense as his guide.
Greater Probative Value
Federal Rule of Evidence 803 C24) (B) requires that
the hearsay statement be "more probative on the point for
which it is offered than any other evidence which
the proponent can procure through reasonable efforts." 51 The court
52
in United States v. American Cyanamid Co.,
points out that
what is reasonable depends upon such matters as the impor-
14 280
tance of the evidence, the means available to the proponent,
and the amount in controversy.
In deMars v. Equitable Life
53
Assurance Society of the United States, a suit was brought to
recover accidental death insurance benefits.
In furtherance
of the suit, plaintiff retained an expert to write a letter
giving his opinion of deMars' cause of death.
The expert
died prior to trial, and the letter was admitted into evidence.
On appeal, the court said that there was error because
the plaintiff did not first establish, under the residual
exception to the hearsay rule, that the letter was more probative on the point for which it was offered than any other
evidence which the plaintiff could have procured through
reasonable efforts.
Neither the trial court nor the parties
directly addressed this part of the rule, although defendant
did assert that plaintiff had plenty of time prior to trial
to obtain the services of another expert.
Plaintiff offered
no evidence or explanation as to why another expert was not
obtained.
Since the expert's opinion was based solely on his
examination of the decedent's medical and hospital records,
the death certificate, and the report of the post-mortem
examination, any other physician could have been obtained to
render an opinion on fairly short notice.
This was not a
situation where the treating physician suddenly died just
prior to trial.
Also, the amount at stake was $160,000,
which normally should produce some kind of an effort to take
up slack caused by the death of an important witness. 54 For
40
other cases, see Matter of Sterling Nav. Co., Ltd.,
where
the court found error because no effort was made to depose
or produce other witnesses; and, see Workman v. CleavelandCliff Iron Company,^ where the court said it was error not
to bring forth other available witnesses to an accident.
The Workman court discusses a point worth examining.
Although
the introductory clause of rule 803 appears to dispense with
the unavailability of the declarant as material, this factor
re-enters the analyses of whether or not a statement is "more
probative."
When a declarant is unavailable, the proponent
may meet the requirement of the initial clause but may fail
because that witness' testimony would have been more probative.
Interests of Justice
The court must find that "the general purposes of
these rules and the interest of justice will be best served
57
by the admission of the statement into evidence."
This
requirement follows closely the policy behind the admissibility of all relevant and reliable evidence that aids in the
prompt and efficient determination of truth.
The court in
United States v. Friedman opined that 803 (24) (C) is simply
"a further emphasis upon the showing of necessity and reliability and a caution that the hearsay rule should not be
lightly disregarded and the admission should be reconciled
with the philosophy expressed in Rule 102."
Federal Rule 102
provides that "these rules shall be construed to secure fairness in administration, elimination of unjustifiable expense
and delay, and promotion of growth and development of the law
of evidence to the end that the truth may be ascertained and
59
proceedings justly determined."
Necessity goes to the heart of the case.
In estab-
lishing a definition of necessity, the facts of each individual case are of great importance.
The courts consider such
factors as the nature of the case, the resources of the proponent, the value of the evidence, and the
significance of
60
the proposition to which it is directed.
The courts also
consider whether the refusal to admit the hearsay evidence 61
is likely to result in a failure of proof by the proponent.
Notice
The proponent of a hearsay statement "must give notice, to the adverse party, of his intention to offer the
statement sufficiently in advance of the trial or hearing
to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and
the particulars of it, including the name and address of the
62
declarant."
Scrutiny of the wording reveals a question
of what is a "fair opportunity."
Resolution of this question
calls upon the judge to exercise a certain amount of discretion.
Because of this discretion, the notice requirement
has gone through a stage of evolution.
required strict compliance.
Initially, judges
63
In United States v. Oates,
Judge Waterman opined that the work product of the Conference Committee, during their deliberation over the Federal
"
285
Rules of Evidence, expresses an intent that there be undeviating adherence to the requirement that notice be given in
64
advance of trial.
Indeed, reference to the Congressional
debates confirms that there were serious misgivings about
possible overbreadth of the original proposals.
The require-
ment that notice be given in advance of trial was one of the
methods selected by the Conference Committee to prevent
abuse of Federal Rule of Evidence 803 (24) and 804 (b)(5).65
Judge Waterman reaffirmed his position
one year later
cc
in the case of United States v. Ruffin.
He there stated
that "where Congress has spoken, our function is not to
develop procedures as we think they might ideally be developed
but rather to enforce the Congressional intent which finds
expression in legislative
enactments such as the Federal
67
Rules of Evidence.
Waterman felt that to allow such testi-
mony would tolerate circumvention of the requirement of
Federal Rule of Evidence 803 (24).68 The Fifth Circuit has 69
also required strict compliance.
In United States v. Davis
the court refused to consider Rule 803 (24) where the record
disclosed that the government made no attempt to give defense
advance notice of its offering hearsay evidence.
These rulings have recently fallen under attack.
The source of such attack apparently lies in the belief that
strict compliance to the notice requirement retards the
"growth and development of the law" as required by Federal
Rule 102.
Consequently, courts have become freer in their
is 286
interpretation of the notice requirement.
The Fifth Circuit
70
in United States v. Evans
opined that the notice require-
ment should be interpreted flexibly, with its underlying
policy in mind.
The underlying policy is the intent to
afford the party against whom a statement71is offered sufficient opportunity to meet the statement.
Obviously, there
will arise instances in which notice prior to trial is impossible and yet the adverse party can still be afforded an
opportunity to meet the evidence.
72
In United States v. Carlson,
which involved a pro-
secution for conspiring to distribute cocaine, the government failed to give formal pre-trial notice that a witness'
grand jury testimony would be offered in evidence.
The
reason for such failure to give notice was that the government
was not informed until the eve of trial that the witness
might not testify.
It was only when the witness disobeyed
a court order to testify and was held in contempt that the
government knew he would not testify under any circumstances.
In Carlton, the court applied a flexible standard and held
that "the notice requirement should not impose a barrier to
the admissibility of probative evidence when the peculiar
78
circumstances of a case militate against its invocation."
Furthermore, the purpose of the notice requirement is to
give the adverse party an adequate opportunity to prepare
to contest the use of the statement.
Consequently, the
court considered whether the defendant had had such an ade-
19
280
quate opportunity by looking at the particular circumstances
of the case.
Chief Judge Gibson concluded that the testimony
was admissible despite the lack of pre-trial notice because:
CI) the defendant was aware of the substance of the grand
jury testimony; (2) the government had not been informed
until the eve of the trial that the witness might not testify; (3) the government did not know for a fact that the
witness would not testify until he disobeyed a court order
and was held in contempt; (.4) the government notified the
defendant that it would offer the testimony immediately after it became obvious that the witness would not testify;
(.5) the government supplied the defendant with two copies
of the grand jury testimony two days before it was admitted
into evidence; and (.6) the need for the grand jury testimony
arose from the defendant's own wrongdoing in coercing the
witness not to take the stand. 74
75
Likewise, the government in United States v. Leslie
was not required to comply strictly with the notice requirement of Rule 803 (.24).
The case involved the admission of
prior inconsistent statements made by three witnesses.
The
court based its decision on the grounds that the defendant
was afforded a fair opportunity at trial to counter the
statements by cross-examining the witnesses.
Also, defen-
dant undoubtedly expected
some or all of the statements to
7 f-i
be used at trial.
The court in United States v. Bailey 77 felt the
21
280
notice requirement of Rule 803 (.24) and 804 (fc>) (5) is satisfied when the proponent of the evidence is without fault in
failing to notify his adversary prior to trial and the trial
78
judge has offered sufficient time, by means of continuance
79
or adjournment
to all the parties against whom the evi-
dence is to be offered to prepare to meet and contest its
admission.
It is important to note, however, that the court
cautioned that parties who fail to give8 0 the notice, required
by the rule, do so at their own peril.
In summary,
few courts have interpreted the notice
requirement with absolute rigidity, unmindful of rule 102.
Generally, notice should be given in writing at or before
the pre-trial conference if the proponent is aware of the
problem.
If he has doubts about whether another exception
applies, he should take the safe course and give notice.
If the question arises during trial through no fault of
the proponent, the 81
court can comply with the rule by granting a continuance.
There will be situations in which the
declarant's address and name are unknown despite every
reasonable effort to locate him.
Under such circumstances,
it would seem to be enough to give all the information the
proponent has been able to acquire by reasonably diligent
inquiry.
Finally, it must be remembered that 80 3 (24) and
804 (b)(5) are to be considered along with rule 403.
Even
though the hearsay statement may be relevant, the statement
may be excluded if its probative value is substantially out82
weighed by the danger of unfair prejudice.
CONCLUSION
From this research, it has been noticed that suspicion is often raised that the Rules have not always yielded
the quality sought or have exacted to high a price for what
was attained.
Criticism centers upon whether the Rules
actually achieve their purpose of screening the good from
the bad.
The purposes of the residual exceptions 803 (24)
and 8 04 (b) (.5) are to:
(1) provide sufficient flexibility to permit the courts to deal with new and
unanticipated situations;
(2)
preserve the integrity of the specifically enumerated exceptions; and
(3)
facilitate the basic purpose of the
Federal Rules of Evidence.
In other words, Rule 803 (24) and 804 (b)(5) were designed
to encourage the progressive growth and development of federal evidentiary law by giving courts the flexibility to
deal with new evidentiary situations which may not be pigeonholed elsewhere.
In practical application of the provisions,
the courts do not appear to be developing further class-type
hearsay exceptions readily susceptible of being catalogued.
Rather, each situation seems to depend largely upon its own
particular circumstances and, as a result, offers little
procedential value.
In time, when repeated judicial exper-
ience indicates that a particular type of statement is
22
280
reliable, an amendment to the rules can be proposed to authorize the recognition of a new class exception.
It should
also be remembered that trustworthiness, need, and reliability may vary with the type of case being tried. Consequently,
the judge has considerable discretion when determining the
applicability of 803 (24) and 804 (b)(5).
The problems of the law of evidence go far beyond
the segment principally discussed here.
Human beings crave
certainty, the certainty of the fixed rule, whether it be
Wigmore's or McCormick's.
We are uneasy unless we can reduce
concepts, ideas, and abstractions to rule.
We create excep-
tions to the rule to meet difficult situations.
It is ques-
tioned whether reconstruction of disputed fact is capable of
precise, formulistic definition.
But, we can lay down cer-
tain standards of necessity and reliability, and then trust
the trial judges to apply them with reasonable skill.
23
FOOTNOTES
1.
McCormick, Handbook of the Law of Evidence § 225 (2d ed. 1954).
2.
Morgan, Hearsay Dangers and the Application of the Hearsay Rule,
62 Harv. L. Rev. 177 (1948).
3.
Fed. R. Evid. 801.
4.
Id.
5.
Chambers v. Mississippi, 410 U.S. 284, 298 (1973).
6.
United States v. Brown, 548 F.2d 1194, 1204 n.18 (5th Cir. 1977)
7.
Id., at 1205 n.19.
8.
Id.
9.
United States v. Williams, 447 F.2d 1285, 1291 (5th Cir. 1971).
10. Strahorn, A Reconsideration of the Hearsay Rule and Admissions,
85 U. Pa. L. Rev. 484, 487 (1937).
11. 5 Wigmore, The Law of Evidence § 1420 (1974).
12. McCormick, supra at § 324.
13. Report of the House Committee on the Judiciary. Reprinted in
Fed. R. Evid. (July 1, 1975) as amended to April 1, 1979, p. 136.
14. Id
15. Report of the Senate Committee on the Judiciary. Reprinted in
Fed. R. Evid., supra at 136.
16. Fed. R. Evid. 803(24) or 804 (b)(5).
17. Dallas County v. Commercial Union Assurance Co., 286 F.2d 388
(5th Cir. 1961).
18. Id., at 396.
19. Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178
(5th Cir. 1975).
20. Frazier v. Continental Oil Co., 568 F.2d 378 (5th Cir. 1978).
21. United States v. laconetti, 406 F. Supp. 544 (E.D.N.Y.), aff'd,
540 F.2d 574 (2d Cir. 1976).
22. Id., at 559.
23. Id.
24. Id.
25. Id.
26. Id.
27. United States v. Leslie, 542 F.2d 285, 290 (5th Cir. 1976).
28. United States v. Williams, 573 F.2d 876, 881 (5th Cir. 1978).
29. United States v. Barnes, 586 F.2d 1052, 1055 (5th Cir. 1978).
30. Erion v. Timken, 368 N.E.2d 312 (Ct. App. Ohio 1976).
31. United States v. Carlson, 547 F.2d 1346, 1354 (8th Cir. 1976).
32. Id.
33. Id.
34. Id.
35. Grimes v. Employers Mut. Liab. Ins. Co. of Wis., 73 F.R.D. 607
(D. Alaska 1977).
36. United States v. Barbati, 284 F. Supp. 409 (E.D.N.Y. 1968).
37. Id.
38. United States v. Mandel, 591 F.2d 1347 (4th Cir. 1979).
39. W . , at 1385.
40. Hutchins and Slesinger, Some Observations on the Law of Evidence:
Spontaneous Exclamations, 28 Colum. L. Rev. 432 (1928).
41. _Id.
42. Id.
43. id.
293
44. Fed. R. Evid. 803 (24)(A).
45. Fed. R. Evid. 402.
46. Fed. R. Evid. 401.
47. United States v. Iaconetti, 406 F. Supp. 544 (E.D.N.Y.), aff'd,
540 F.2d 574 (2d Cir. 1976).
48. Id., at 559.
49. Huff v. White, 609 F.2d 286 (7th Cir. 1979).
50. Id., at 294.
51. Fed. R. Evid. 803(24)(B).
52. United States v. Am. Cyanamid Co., 427 F. Supp. 859, 865-66
(S.D.N.Y. 1977).
53. deMars v. Equitable Life Assurance Soc'y of the United States,
610 F.2d 55 (1st Cir. 1979).
54. Id., at 61.
55. Matter of Sterling Nav. Co., Ltd., 444 F. Supp. 1043, 1047-48
(S.D.N.Y. 1977).
56. Workman v. Cleaveland-Cliffs Iron Co., 68 F.R.D. 562 (N.D. Ohio
1975).
57. Fed. R. Evid. 803U4)(C).-
58. United States v. Friedman, 593 F.2d 109, 119 (9th Cir. 1979).
59. Fed. R. Evid. 102.
60. United States v. Mathis, 559 F.2d 294 (5th Cir. 1977).
61. Id.
62. Fed. R. Evid. 803(24).
63. United States v. Oates, 560 F.2d 45 (2d Cir. 1977).
64. Id., at 72-73 n.30.
QO/
.AI
65. H.R„ Re£. No. 1597, 93d Cong., 2d Sess. 11-12, 13 (1974), reprinted
in - u T s . Code Cong. & Ad. News 7093, 7105, 7106.
66. United States v. Ruffin, 575 F.2d 346 (2d Cir. 1978).
67. Id., at 358
68. Id.
69. United States v. Davis, 571 F.2d 1354 (5th Cir. 1978).
70. United States v. Evans, 572 F. 2d 455 (5th Cir. 1978).
71. Id., at 489.
72. United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976).
73. Id., at 1355.
74. Id., at 1354-55.
75. United States v. Leslie, 542 F.2d 285 (5th Cir. 1976).
76. Id., at 291.
77. United States v. Bailey, 581 F.2d 341 (3d Cir. 1978).
78. Id., at 348.
79. Furtado v. Bishop, 604 F.2d 80 (1st Cir. 1979).
80. Id.
81. United States v. Bailey, 581 F.2d 341 (3d Cir. 1978).
82. Fed. R. Evid. 409.
/vSo