Although some courts hold that if proffered evidence fails to meet the requirements of the Fed. R. Evid. 803 hearsay exception, it cannot qualify for admission under the residual exception, The majority of circuits interpret Rule 807 to mean that if a statement is admissible under one of the hearsay exceptions, that exception should be relied on instead of the residual exception. The phrase "specifically covered" by a hearsay exception means only that if a statement is admissible under one of the Fed. R. Evid. 803 exceptions, such subsection should be relied upon instead of the residual exception.
In 1993 James Acquisto, a detective for a state drug task force, received information from Universal Testing Incorporated ("UTI"), that one of its employees, Laster, had ordered hydriodic acid, a component of methamphetamine, from Wilson Oil Company using the UTI company name without its permission. Laster, convicted of manufacturing methamphetamine in violation of 21 U.S.C.S. § 846 and of possessing methamphetamine with the intent to distribute in violation of 21 U.S.C.S. § 841(a)(1) and 18 U.S.C.S. § 2, claimed the district court improperly admitted hydroidic acid purchase records under the business records exception, Fed. R. Evid. 803(6).
Can the records not admissible as business records be admitted under the residual exception of Fed. R. Evid. 807?
The appeals court said that while the records were not admissible as a business record because the government agent testifying was not familiar with the seller's record keeping system, the records were admissible under the residual exception of Fed. R. Evid. 807 as they were material, more probative on the point for which they were offered than any other reasonably available evidence, and their admission best served the interest of justice. The appeals court rejected defendants' claim that the determination that they were manufacturing D-methamphetamine rather than L-methamphetamine was improperly made by the court, holding that such determination was not an aggravating factor which required a decision by the jury as it did not increase the penalty for the crime beyond the statutory maximum.