This CLE course will alert trial lawyers to the new opportunities and challenges presented by the Dec. 1, 2019, amendment to Federal Rule of Evidence 807 regarding the residual exception to the hearsay rule. The amendment relaxes some of the barriers to the admission of hearsay, and counsel must be aware of the changes.
Hearsay evidence is excluded except when it is subject to a specific exception. Recognizing unanticipated exceptions, the drafters of the Federal Rules of Evidence created a "residual exception" designed to allow courts to admit hearsay evidence that, though not identified in the rules, a jury should consider.
Until December 2019, a party could attempt to introduce inadmissible hearsay only if the out-of-court declaration was trustworthy, material, and served the interests of justice. The new amendment eliminates the requirement that the evidence must be material and the condition that the proffered evidence must serve the interests of justice. Only the materiality and trustworthiness requirements remain. Further, the pretrial notice requirements have been relaxed, and a cause exception to those requirements has been introduced.
Depending on the commentator, these rules are (1) an inappropriate dilution of the hearsay exception, (2) an opportunity for counsel to better develop the evidence at trial, or (3) some version of both.
Listen as this panel of trial evidence experts examines the changes to the rule and provides guidance on using the rule to introduce, or prevent the introduction of, hearsay evidence.
