Hearsay evidence which does not fall within a hearsay exception may be admitted in some state courts if it is sufficiently reliable and trustworthy.{footnote}In re TD, 115 Ill. App. 3d 872, 450 N.E.2d 455 (2d Dist. 1983)(label on tube of glue admitted to show chemical ingredient); Idaho Rule Evid. 803(24).{/footnote} 

The federal rules provide residual or "catchall" exceptions for the admission of hearsay that is sufficiently trustworthy and necessary to the offering party’s case.{footnote} [3574]  FRE 803(24); 804(b)(5); Check United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976)(G); check United States v. Barnes, 586 F.2d 1052 (5th Cir. 1978)(G).{/footnote} 

Rule 803(24), or the residual exception provides:

 A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, [is not excluded by the hearsay rule, even though the declarant is available as a witness] if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will be best served by the admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

Fed. R. Evid. 803(24).
The offered evidence must go to a material fact in the case, must be more probative of that fact than any other evidence that could reasonably be produced, the interests of justice must be served by its admission, and reasonable notice must be given to the opposing party.{footnote}FRE 803(24);  Parsons v. Honeywell, Inc., 929 F.2d 901 (2d Cir. 1991); Mutuelles Unies v. Kroll & Linstrom, 957 F.2d 707 (9th Cir. 1992).

 Check United States v. Lyon, 567 F.2d 777 (8th Cir. 1977)(G)(holding?).{/footnote} 

The trial court is entitled to considerable discretion in deciding whether to admit hearsay under the residual exception.{footnote}Doe v. United States, 976 F.2d 1071 (7th Cir. 1992), cert. denied, 510 U.S. 812, 114 S.Ct. 58, 126 L.Ed.2d 28.{/footnote}

Trustworthiness

Hearsay offered under the residual exception must have circumstantial guarantess of trustworthiness comparable to those found with statements admitted under other hearsay exceptions.{footnote}Doe v. United States, 976 F.2d 1071 (7th Cir. 1992)(three-year-old child’s statements regarding sexual abuse held admissible);  Mutuelles Unies v. Kroll & Linstrom, 957 F.2d 707 (9th Cir. 1992)(sworn statement and deposition taken together provided adequate quarantee of trustworthiness).

But see Miller v. Field, 35 F.3d 1088 (6th Cir. 1994)(statements to police made by alleged assailants and victim of assualt inadmissible under residual exception due to fact that declarants faced possible criminal charges at the time they made the statements; statements by prosecutor inadmissible because factual basis for statements unknown).

Check United States v. Love, 592 F.2d 1022 (8th Cir. 1979).{/footnote}  This has been stated to be the most important requirement for admissibility under the residual exception.{footnote}F.T.C. v. Figgie Intern., Inc., 994 F.2d 595 (9th Cir. 1993), cert. denied, 114 S.Ct. 1051, 127 L.Ed.2d 373.{/footnote}

Burden.  Hearsay which does not fall within an exceptions is presumed to be untrustworthy, and it is the proponent’s burden to rebut this presumption.{footnote} [3579]  Doe v. United States, 976 F.2d 1071 (7th Cir. 1992), cert. denied, 510 U.S. 812, 114 S.Ct. 58, 126 L.Ed.2d 28.{/footnote};
Notice to Adverse Party

The residual exceptions require notice to be given the adverse party of intent to invoke the exception.{footnote}FRE 803(24);  Kirk v. Raymark Industries, Inc., 61 F.3d 147 (3d Cir. 1995), cert. denied, 116 S.Ct. 1015, 134 L.Ed.2d 95 (interrogatory answer of settling codefendant erroneously admitted).{/footnote}  The notice must include the hearsay statement itself and advise specifically of the intent to rely on the residual exception.{footnote}Kirk v. Raymark Industries, Inc., 61 F.3d 147 (3d Cir. 1995).

But see Mutuelles Unies v. Kroll & Linstrom, 957 F.2d 707 (9th Cir. 1992)(propponent gave sufficient notice by advising opposing party of declarant’s unavailability and offering to videotape direct and cross-examination). {/footnote}  the name and address of the declarant.  While the rules require notice be given "sufficiently in advance of the trial or hearing,"{footnote} [3582]  FRE 803(24), 805(b)(5); United States v. Davis, 571 F.2d 1354 (5th Cir. 1978)(G).{/footnote} this requirement is not always strictly enforced.{footnote}See, e.g., United States v. Iaconetti, 540 F.2d 574 (2d Cir. 1976); Kirk v. Raymark Industries, Inc., 61 F.3d 147 (3d Cir. 1995)(faillure to give advance notice excused where proponent not at fault for failure and continuance granted).{/footnote}

Necessity of Findings

Under the federal rules, detailed findings are required before hearsay may be admitted under the residual excpetion.{footnote}F.T.C. v. Figgie Intern., Inc., 994 F.2d 595 (9th Cir. 1993), cert. denied, 114 S.Ct. 1051, 127 L.Ed.2d 373.{/footnote}  In the absence of such findings, an appellate court may review the record to determine whether the prerequisites to admissibility were met.{footnote} [3585]  F.T.C. v. Figgie Intern., Inc., 994 F.2d 595, 608 (9th Cir. 1993), cert. denied, 114 S.Ct. 1051, 127 L.Ed.2d 373 (holding that  letters of complaint to FTC met requirements of FRE 803(24)); United States v. George, 960 F.2d 97, 100 (9th Cir. 1992).{/footnote}

Unavailability of Declarant

Some courts have read into FRE 803(24) a requirement that the declarant be unavailable.{footnote}Wolfson v. Mutual Life Ins.Co. of New York, 455 F.Supp. 82, aff’d 588 F.2d 825 (D.C.Pa. 1978) [check cite].  See also Saltzburg & Redden at 844 (availability important factor) {/footnote}

The "Near Miss" Argument.  It is often argued that evidence which would be excluded under the hearsay exception which most nearly describes it cannot come in under the residual exception.  This argument has generally been rejected by the courts.{footnote}In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 302 (3d Cir. 1983); yUnited States v. Hitsman, 604 F.2d 443, 447 (5th Cir. 1979); United States v. Popenas, 780 F.2d 545 (6th Cir. 1985) [check]{/footnote} 

Constitutionality

Criminal Cases.  The "residual exception" to the hearsay rule has been held not to be a "firmly rooted hearsay exception."{footnote}Idaho v. Wright, 497 U.S. 805, 817, 820-21, 110 S.Ct. 3139, 3147, 3149-3150, 111 L.Ed.2d 638 (1990).{/footnote}  Therefore, under case law interpreting the Confrontation Clause, hearsay admissible only under the residual exception is "presumptively unreliable and inadmissible for Confrontation Clause purposes"{footnote}Idaho v. Wright, 497 U.S. 805, 817, 820-21, 110 S.Ct. 3139, 3147, 3149-3150, 111 L.Ed.2d 638 (1990), quoting Lee v. Illinois, 476 U.S. 530, 543, 106 S.Ct. 2056, 2063, 90 L.Ed.2d 514 (1986).{/footnote}  and must be excluded absent a showing of "particularized guarantees of trustworthiness."{footnote}Idaho v. Wright, 497 U.S. 805, 817, 820-21, 110 S.Ct. 3139, 3147, 3149-3150, 111 L.Ed.2d 638 (1990), quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980).{/footnote}  Some types of hearsay evidence admitted under the residual exception in criminal cases have been held to pass scrutiny under this test due to their inherent trustworthiness,{footnote}United States v. Vretta, 790 F.2d 651, 660 (7th Cir. 1986)(murder victim’s statements that defendant was threatening him); United States v. George, 960 F.2d 97, 100 (9th Cir. 1992)(statements of 12-year-old to investigator regarding dates of various stepfather’s sexual assaults). {/footnote} while others have not.{footnote} [3592]  Idaho v. Wright, 497 U.S. 805, 817, 820-21, 110 S.Ct. 3139, 3147, 3149-3150, 111 L.Ed.2d 638 (1990)(doctor’s testimony as to statements made by 21/2-year-old to him describing sexual abuse, admitted under residual exception, not sufficientty trustworthy){/footnote}

Civil Cases.  There is no constitutional question raised by the application of the residual exception in a civil case.{footnote}F.T.C. v. Figgie Intern., Inc., 994 F.2d 595 (9th Cir. 1993), cert. denied, 114 S.Ct. 1051, 127 L.Ed.2d 373.{/footnote}

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