The United States Supreme Court recently amended Federal Rule of Evidence Rule 807, the residual exception to the hearsay rule. These amendments significantly broaden the scope of the exception, which may lead to the admission of more hearsay statements under this rule.
Rule 807 provides for the admission of certain hearsay statements that are not admissible under the enumerated exceptions found in Rules 803 and 804. The previous version of the rule allowed for the admission of an otherwise inadmissible hearsay statement when the proponent could demonstrate that the statement was trustworthy, material, and more probative on the point for which it was offered than any other evidence the proponent could obtain through reasonable efforts, and that the admission of the statement was in the interests of justice.
The new version of Rule 807, which went into effect on December 1, 2019, requires only that the hearsay statement is trustworthy and is more probative on the point for which it is offered than any other evidence that the proponent can reasonably obtain. The amended version eliminates the requirements that the proffered hearsay be offered in support of a material fact and that the admission of the hearsay serve the interests of justice. The materiality requirement was eliminated to avoid redundancy. Under Rule 401, all evidence must be material, or a fact “of consequence in determining the action,” to be considered relevant. Thus, the deletion of Rule 807’s materiality requirement should not result in any change to the application of the rule. See FED. R. EVID. 807 advisory committee’s note to the 2019 amendment.
The amended Rule also appears to loosen the standard for determining whether hearsay evidence is considered “trustworthy.” The previous version required that a statement admitted under Rule 807 must have “equivalent circumstantial guarantees of trustworthiness” as statements admitted under the enumerated hearsay exceptions found under Rules 803 and 804. The new version requires only that the statement “is supported by sufficient guarantees of trustworthiness” under the totality of the circumstances. Additionally, the amended version allows for the consideration of corroborating evidence in determining whether a statement is trustworthy, which the old version did not.
Changes were also made to Rule 807’s notice requirement. Previously, the Rule required that a statement could only be admitted if, before the trial or hearing, the proponent provided reasonable notice of intent to offer the statement. The new version of the Rule allows admission with notice during the trial or hearing if the court finds good cause to excuse a lack of earlier notice.
It remains to be seen what practical effect the amendments to Rule 807 will have on the admission of hearsay evidence. Historically, Rule 807 has been “used only rarely, in truly exceptional cases.” United States v. Reed, 908 F.3d 102, 120 (5th Cir. 2018), cert. denied, No. 18-1336, 2019 WL 1790553 (U.S. May 28, 2019). This precedent could change under the new, more relaxed version of the Rule. Litigators should be aware of the possibility that more hearsay, even that which falls outside of the scope of the familiar exceptions, will be admitted, and should accordingly pay attention to how the changes in this Rule are being implemented.