§ 35.01  Introduction [513]

 

There are reliable hearsay statements that do not fall within any of the exceptions specified in Rules 803 and 804.  The residual exception is a way to recognize this by giving the trial judge ad hoc authority to admit hearsay in a particular case.  The residual exception requires:   (1) the statement have “equivalent circumstantial guarantees of trustworthiness” as the exceptions in Rules 803 and 804; (2) the statement be offered as evidence of a material fact; (3) the statement  be more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; (4) the general purposes of the Federal Rules and the interests of justice be served by admission; and (5) notice be given to the other party. (Two of these requirements are redundant.  Rule 401 requires materiality, and Rule 102, the purpose and construction clause, requires the doing of justice, among other things.)

 

The courts have rejected the "near miss" theory and have also frequently admitted grand jury testimony. Numerous factors are relevant to determining reliability. Consider first the hearsay dangers - perception, memory, narration, or sincerity problems.