---
title: "Residual Exception (FRE 807)"
type: Legal Rule
source: https://casebriefly.com/legal-rules/residual-exception-fre-807
---

# Residual Exception (FRE 807)

A hearsay statement not covered by any specific exception may still be admitted if it has equivalent circumstantial guarantees of trustworthiness, is offered as evidence of a material fact, is more probative than other reasonably available evidence, and serves the interests of justice.

## Definition

Federal Rule of Evidence 807, the residual or catch-all hearsay exception, provides a safety valve for trustworthy hearsay that does not fit within any of the specific exceptions in Rules 803 or 804. As amended in 2019, the rule allows admission of a hearsay statement if the court determines that 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 the proponent can reasonably obtain.

The 2019 amendment simplified the rule by removing the prior requirements that the statement be offered as evidence of a material fact and that admission serve the interests of justice, which were considered redundant. The amendment also clarified that the trustworthiness inquiry should consider the totality of circumstances and that corroborating evidence is a relevant factor, not a separate requirement. The proponent must give an adverse party reasonable notice of the intent to offer the statement, including its substance and the declarant's name and address.

The residual exception is intended to be used sparingly, not as a broad license to admit unreliable hearsay. Courts should not use it to admit evidence that 'near misses' a specific exception — that is, hearsay that was clearly contemplated by a specific exception but fails to meet its requirements. However, some courts have been more liberal, treating near-miss evidence as potentially admissible under 807 if the trustworthiness analysis supports it. The Supreme Court in Idaho v. Wright emphasized that the trustworthiness of the statement must be assessed based on circumstances surrounding the making of the statement, not from post-hoc corroboration of the facts asserted.

## Elements

- The statement is not admissible under any specific hearsay exception in FRE 803 or 804
- The statement is supported by sufficient guarantees of trustworthiness, considering the totality of circumstances
- Corroborating evidence may be considered as part of the trustworthiness analysis
- The statement is more probative on the point for which it is offered than any other evidence the proponent can reasonably obtain
- The proponent gives reasonable advance notice to the adverse party of intent to use the statement, including substance and declarant identity

## Key Case

Idaho v. Wright, 497 U.S. 805 (1990)

## Landmark Cases

| Name | Citation | Significance |
| --- | --- | --- |
| Idaho v. Wright | 497 U.S. 805 (1990) | Held that the trustworthiness of a residual exception statement must be evaluated based on the totality of circumstances surrounding the making of the statement, not solely on corroboration of the facts stated. |
| Dallas County v. Commercial Union Assurance Co. | 286 F.2d 388 (5th Cir. 1961) | Pre-rules case often cited as inspiring the residual exception — a 58-year-old newspaper article about a fire was admitted because of its inherent trustworthiness despite not fitting established exceptions. |
| United States v. Laster | 258 F.3d 525 (6th Cir. 2001) | Discussed the near-miss doctrine, addressing whether hearsay that almost qualifies under a specific exception can be admitted under the residual exception. |

## Exam Tips

- Use FRE 807 as a last resort after exhausting all specific exceptions under 803 and 804 — it is a safety valve, not a first-line argument.
- Focus on the trustworthiness analysis: What circumstances surrounding the making of the statement indicate reliability? Consider the declarant's motive, the spontaneity of the statement, and the context.
- Remember the notice requirement — failure to give reasonable pretrial notice can be fatal to a residual exception argument.
- Be aware of the near-miss controversy: some courts refuse to admit under 807 evidence that clearly fails a specific exception, while others evaluate trustworthiness independently.

## Common Mistakes

- Treating FRE 807 as a broad catchall that can admit any hearsay — it is intended for exceptional cases with strong trustworthiness guarantees.
- Relying solely on corroboration to establish trustworthiness — the court must also consider the circumstances under which the statement was made.
- Forgetting the notice requirement — the proponent must provide reasonable notice to the adverse party before trial.

## Mnemonic Or Memory Aid

FRE 807 is the 'safety net' — it catches only the most trustworthy hearsay that slips through all other exceptions.

## Related Rules

- hearsay-rule-and-definition-fre-801
- business-records-exception-fre-803-6
- dying-declaration-fre-804b2
- confrontation-clause-crawford-doctrine

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Source: [Residual Exception (FRE 807) — CaseBriefly](https://casebriefly.com/legal-rules/residual-exception-fre-807)