Article VIII — Hearsay
Rule 807: Residual Exception
What is Residual Exception?
Rule 807 is the residual or catch-all hearsay exception. It provides a safety valve for hearsay statements that do not fit within any of the specific exceptions in Rules 803 and 804 but are nevertheless trustworthy and necessary. The rule recognizes that the drafters could not anticipate every situation in which hearsay might be sufficiently reliable to admit.
Source: Fed. R. Evid. 807
Rule Text
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: 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 it is more probative on the point for which it is offered than any other evidence that the proponent can reasonably obtain. 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.
Plain English Explanation
Rule 807 is the residual or catch-all hearsay exception. It provides a safety valve for hearsay statements that do not fit within any of the specific exceptions in Rules 803 and 804 but are nevertheless trustworthy and necessary. The rule recognizes that the drafters could not anticipate every situation in which hearsay might be sufficiently reliable to admit.
The requirements are demanding. The statement must have sufficient guarantees of trustworthiness, considering the totality of circumstances including corroborating evidence. It must also be more probative on the point for which it is offered than any other reasonably obtainable evidence — meaning it should be necessary, not just convenient. The proponent must also give reasonable pretrial notice to the opposing party, including the substance of the statement and the declarant's name, to allow adequate preparation.
The 2019 amendment significantly revised Rule 807, relaxing the previous requirement that the statement have 'equivalent circumstantial guarantees of trustworthiness' to the enumerated exceptions. The amended rule focuses on the totality of circumstances and expressly allows courts to consider corroborating evidence in assessing trustworthiness. Courts use 807 sparingly, as it is meant to be an exception, not a broad avenue for admitting unreliable hearsay.
Key Points
- 1A catch-all for trustworthy hearsay that does not fit any specific exception in 803 or 804
- 2Requires sufficient guarantees of trustworthiness under the totality of circumstances
- 3The statement must be more probative on the point than other reasonably obtainable evidence
- 4Proponent must give reasonable pretrial notice (substance and declarant's name) to the adverse party
- 5Courts may consider corroborating evidence in assessing trustworthiness (2019 amendment)
Common Exam Issues
- Identifying when a statement does not fit any specific exception but may qualify under the residual exception
- Analyzing 'sufficient guarantees of trustworthiness' — what circumstances make a hearsay statement reliable?
- The necessity requirement — is the statement more probative than other available evidence?
- The notice requirement and the consequences of failing to provide it
Landmark Cases
- Dallas County v. Commercial Union Assurance Co.
- Idaho v. Wright
- United States v. Bonds
Article VIII — Hearsay
This rule is part of Article VIII — Hearsay of the Federal Rules of Evidence.
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