Residual Exceptions to the Hearsay RuleAuthor(s): Jeffrey ColeSource: Litigation, Vol. 16, No. 1, EVIDENCE (Fall 1989), pp. 26-31, 62-63Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759361 .

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to (he 1 IcarMty knie

by Jeffrey Cole "Have you guessed the riddle yet?" the Hatter said,

turning to Alice again. "No, I give up," Alice replied, "what's the answer?" "I haven't the slightest idea," said the Hatter. "Nor I," said the March Hare. Alice sighed wearily. ?Lewis Carroll, Alice's Adventures in Wonderland.

For many members of our profession?judges included? the hearsay rule is as bewildering as the curious ramblings of the Mad Hatter. Despite almost 300 years of analysis, there are still those who find Churchill's description of Russia?"a riddle wrapped in a mystery, inside an enigma"?an appro? priate summary of the hearsay rule and its exceptions.

The Federal Rules of Evidence have not lessened the

problem. Quite the contrary. By authorizing the admission of certain "trustworthy" and "probative" hearsay not falling within 27 other specific exceptions, Rules 803(4) and

804(b)(5)?the so-called residual or catch-all exceptions? have added new dimensions of difficulty and unpredictabil? ity. How did things get so snarled? Before the 1975 adoption of the Federal Rules, judges

made almost all evidence law for federal trials. Such judicial involvement ensured the continued adaptation of most rules of evidence to progressive notions of relevance and contem?

porary notions of justice. See United States v. Mitchell, 322 U.S. 65, 66 (1944); United States v. Reybburn, 31 U.S. (6 Pet.) 352, 367(1832).

The hearsay rule was somewhat different. While it was not immune to judicial improvisation?see, e.g., Dallas County v. Commercial Union Assurance Co., 386 F. Supp. 409

(S.D.N.Y. 1968) (Weinstein, J.)?it was less malleable than other evidentiary principles. Indeed, the inflexibility of the rule's exceptions, coupled with their rigid judicial construc?

tion, led Wigmore to complain of "[t]he needless obstruction

Mr. Cole is in the private practice of law in Chicago, specializing in

federal civil and white-collar criminal litigation. He is also an Associate

Editor of Litigation.

to the investigation of truth caused by the hearsay rule 4 J. Wigmore, Evidence, ? 1427 at 257 (Chadbourn rev.

1974). To create flexibility and foster judicial development of the

hearsay rule, the original version of Article VIII of the Federal Rules of Evidence allowed trial judges to admit

hearsay "not specifically covered by any of the [enumerated] exceptions but having comparable circumstantial guarantees of trustworthiness."

Fearing that such provisions would introduce intolerable

uncertainty, the House deleted them. The Senate, concluding that the closed system of exceptions in the House version was too inflexible, disagreed. It therefore reinstated the re? sidual exceptions. The House relented, adding only a provi? sion requiring pretrial notice of intent to rely on the residual

exceptions. See 4 J. Weinstein & M. Berger, Weinstein s

Evidence, HH 803(24)[01], 804(b)(5)[01] (1988). As finally approved by Congress, the hearsay article con?

tained two identical residual exceptions. They both read as follows:

Other Exceptions: A statement not specifically cov? ered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthi? ness [is admissible], 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 propo? nent can procure through reasonable efforts; and (c) the general purposes of these rules and the interests of

justice will best be served by admission of the state? ment 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.

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See Fed. R. Evid. 803(24) and 804(b)(5). Though it sought flexibility, Congress did not want the

residual exceptions so broad that they would devitalize the

hearsay rule or eclipse the enumerated exceptions. The Sen? ate report makes this clear: The residual exceptions were not

"intend[ed] to establish a broad license for trial judges to admit hearsay statements that do not fall within one of the

[enumerated] exceptions" or "to authorize major judicial revisions in the hearsay rule...." Rather, Congress "in?

tended that ... [the residual exceptions] be used very rarely, and only in exceptional circumstances."

An Exceptional List

Reading such unambiguous legislative history, most would suppose the residual exceptions have played a mini? mal role. In fact, the opposite is true. It may be a slight exaggeration to suggest that federal judges routinely use the residual exceptions to admit almost any relevant out-of-court statement that passes muster under Rule 403. See F. Rossi, "The Silent Revolution," 9 Litigation, No. 2, at 13,17 (Win? ter 1983). It is, however, beyond debate that the residual

exceptions are used with increasing frequency, and in ways Congress never intended.

Lists can be dull, but only a list can convey the growing scope of the residual exceptions. Here are 13 examples. The residual exceptions have been used to sustain the admission of (1) grand jury testimony of accomplices, United States v.

Curro, 847 F.2d 325 (6th Cir. 1988); (2) statements of sexu?

ally abused children, United States v. St. John, 851 F.2d 1096 (8th Cir. 1988); (3) diary entries, United States v.

Wright, 826 F.2d 938, 945 (10th Cir. 1987); (4) affidavits, JustakBros. & Co. v. NLRB, 664 F.2d 1074 (7th Cir. 1981); (5) double hearsay, Robinson v. Shapiro, 646 F.2d 734 (2d Cir. 1986); (6) an accomplice's statements made as part of a

plea bargain agreement, United States v. Workman, 860 F.2d 140 (4th Cir. 1988); (7) a bystander's account of an incident,

Turbyfdl v. International Harvester, 486 F. Supp. 232 (E.D. Mich. 1980); (8) telexes from governmental agencies pre? pared for use in litigation (even though contradicted by other

evidence), United States v. Doe, 860 F.2d 488 (1st Cir. 1988); (9) statements of a defendant's estranged wife to the FBI that she told her husband of an outstanding arrest warrant, United States v. Marshall, 856 F. 2d 896 (7th Cir. 1988); (10) an

accomplice's unsworn statements implicating others (de? spite his prior lies to the authorities), United States v.

Roberts, 844 F.2d 537 (8th Cir. 1988); (11) statements ac?

cusing the defendant of vote fraud, United States v. Howard, 774 F.2d 838 (7th Cir. 1985); (12) statements of a victim to friends that the defendant had threatened him, Hopkinson v.

Schillinger, 866 F.2d 1185 (10th Cir. 1989); and (13) state? ments that almost, but not quite, qualify under one of the enumerated exceptions, Moffett v. McCauley, 724 F.2d 581

(7th Cir. 1984); United States v. McPartlin, 595 F.2d 1321, 1350 (7th Cir. 1979). This explosion of admissibility has been justly criticized.

See, e.g., D. Sonenshein, "The Residual Exceptions to the Federal Hearsay Rule: Two Exceptions In Search of A

Rule," 57 N.Y.U. L. Rev. 867 (1982). Decisions construing the residual exceptions are not only a "hodge-podge... giv[ing] little guidance about what is admissible and what is not," R. Park, "A Subject Matter Approach To Hearsay

Reform," 86 Mich. L. Rev. 51, 117 (1987); they are also often faithless to Congress's restrictive view of the excep? tions. As Professor Rossi has lamented, "Judicial enthusiasm for the residual exceptions mocks the caution of Congress." Rossi, supra, at 17.

Before exploring these problems, we should begin with the basics.

The definition of hearsay is delusively simple. Hearsay is a

statement, other than one made by the declarant while testi?

fying, offered to prove the truth of the matter asserted. If the out-of-court declaration is offered for any other relevant

purpose, the hearsay rule has no application. See Anderson v. United States, All U.S. 211, 219 (1974); Fed. R. Evid.

801(c). The reasons usually offered for the rule also seem simple.

If an out-of-court statement is offered to prove the matter

asserted, its truthfulness depends upon the credibility of the declarant. In the normal hearsay situation, the witness is someone who simply heard the declarant make the state?

ment. Cross-examination of the witness to test the truthful? ness of that statement is fruitless. Hence, hearsay is not admitted.

What Isn't Hearsay ? Things are different if the only question is whether the out

of-court statement was made. Then, the declarant's credibil?

ity does not matter. The question instead is whether the statement was accurately heard and reported. That is subject

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to cross-examination. The dangers associated with hearsay are thus absent, and the hearsay rule is not implicated. See 4 Weinstein s Evidence, f 801(c)[01].

Although its reasoning is Byzantine, United States v.

Detrich, 865 F.2d 17 (2d Cir. 1988), illustrates the principle. The defendant was arrested at Kennedy Airport after a search revealed heroin sewn into the shoulder pads of a suit. In support of his claim that he was an unwitting courier, Detrich testified that while traveling in India, he met a man named Shah Nustraty, who asked him to transport "a wed?

ding suit" to his brother, Dawood, who was to be married in the United States.

To bolster this claim, Detrich offered to introduce testi?

mony that, shortly after the arrest, Dawood had said that he was to be married within a month. On hearsay grounds, the district court refused to permit this testimony. The court of

appeals reversed, holding that the statement was not hearsay. The appeals court reasoned that the jury might conclude from the mere existence of the statement, whether true or not, that, while in India, Detrich had been told that Dawood was

getting married, and thus believed he was on an innocent mission.

Detrich''s conclusion?that an out-of-court declaration

may be used as circumstantial proof of the prior state of mind of someone other than the declarant?is extreme. Still, it is

Determining whether a state? ment is hearsay is child's play compared with applying the residual exceptions*

indisputable that out-of-court statements are not hearsay when used as circumstantial proof of the declarant's own state of mind. Such indirect uses are different from direct assertions of a state of mind, which are hearsay, but which fall within a well-known exception to the hearsay rule. See Rule 803(3); 6 J. Wigmore, Evidence, ? 1715 (Chadbourn rev. 1976).

The point can be illustrated by comparing the statement, "Alice is too ugly to die yet" with "I hate Alice." Suppose both statements are offered as proof that the declarant dis? likes Alice. If so, the first statement is not hearsay because it is offered not for the truth of the matter asserted?Alice's ap? pearance?but merely as indirect proof of the declarant's

feelings. The second statement, a direct assertion of the declarant's feelings about Alice, is hearsay, but falls within the state-of-mind exception to the hearsay rule.

Unfortunately, many courts fail to recognize the funda? mental distinction between hearsay and nonhearsay uses of out-of-court statements?thereby surrounding the hearsay rule with a fog of confusion. Consider United States v.

Gaertner, 705 F.2d 210 (7th Cir. 1983): The defendant was

charged with possession of cocaine with the intent to distrib? ute it to Mass, an undercover agent. The cocaine had been

supplied by Haman, a government informant. The defendant sought to testify about a conversation with

Hainan during which it was agreed that the defendant would hold the cocaine as collateral for a loan to Haman. This

supported the defendant's claim that he never meant to trans? fer the cocaine to the undercover agent; he was just holding it, he said, until Haman repaid the loan. The district court excluded the conversation on hearsay

grounds. The court of appeals agreed; it held that the testi?

mony about the agreement was hearsay because it "necessar?

ily" was offered to prove the truth of the matter asserted:

i.e., that the "loan/collateral" agreement did in fact exist. Logical reasoning leads to the conclusion that before the jury could believe that the al?

leged .. . transaction took place they would neces?

sarily have to have found credible the truth? fulness ... [of] Haman's alleged statements. 705 F.2d at 214.

Gaertner is a classic misapplication of the hearsay rule. The fact that the agreement was evidenced by utterances did not necessarily bring the hearsay rule into play. In fact, proof of the existence of an oral "contract" (even an illicit one) does not involve the hearsay rule at all, for the utterances are verbal acts. See 6 J. Wigmore, Evidence ? 1770 at 94 (Chad bourn rev. 1976).

Equally flawed is Gaertner's conclusion that the jury nec?

essarily had to "have found credible the truthfulness of Haman's statements" before it could find that the collateral transaction took place. In fact, much as in Detrich, it did not

matter whether Haman, the declarant, intended to abide by his promise to repay the loan and recover his collateral. The

only question was whether the statements were made. This exposition of the courts' troubles with basic hearsay

principles may seem a digression, but it has a purpose: The

analysis required to determine whether a statement is hear?

say?a task courts stumble over?is child's play compared with trying to reconcile cases interpreting the residual excep? tions. Even if a judge successfully navigates elementary doctrine, and then concludes that an out-of-court declaration is hearsay, but is not subject to the 27 specific exceptions, it's

anybody's guess what will happen under Rules 803(24) or

804(b)(5). Part of this uncertainty stems from the fact that residual

exceptions are not simple or clear. Before hearsay can be admitted under them, it must meet five requirements: The evidence must (1) have guarantees of trustworthiness

equivalent to enumerated exceptions; (2) be more probative than other available evidence; (3) be material; (4) serve the

general purposes of the rules and the interest of justice; and

(5) have been the subject of prior notice to the opponent.

The Main Culprit Though there are five requirements, most of the blame for

the inconsistency falls on just one: the condition that the

testimony must possess "circumstantial guarantees of trust?

worthiness equivalent" to the 27 enumerated exceptions. Even as written, that requirement is a handful. How in the world does a judge decide that a piece of hearsay is as

trustworthy as an excited utterance, or reputation as to char?

acter, or a statement of present sense impression? Of course, there will always be some inconsistency. A

trustworthiness analysis is necessarily fact-specific; perfect congruence between decisions is impossible. "[T]he output

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of a multitude of minds must be expected to contain its

proportion of vagaries." Cardozo, The Growth Of The Law 5

(1924). Even recognizing the world's imperfection, how? ever, cases construing the residual exceptions are remarkable for their unpredictability, lack of consistency, and disregard for the intent of Congress.

Reconciling the Hodgepodge Trying to reconcile the trustworthiness hodgepodge is no

task for the easily discouraged. Take a basic question: What must be shown to demonstrate trustworthiness? Some cases

suggest that corroboration of the hearsay by other trial evi? dence alone satisfies the trustworthiness requirement. See, e.g., United States v. Chapman, 866 F.2d 1326, 1332 (11th Cir. 1989). Others disagree. See United States v. Roberts, 844 F.2d 537, 547 (8th Cir. 1988). A second approach adds extrinsic factors (such as the availability of the declarant for

cross-examination) to corroboration. See, e.g., United States

v. Barnes, 586 F.2d 1052, 1055 (5th Cir. 1978); Sonenshein, supra, at 876 n.55 (collecting cases). A third, and more

encompassing, test?and the one most widely used?sweeps in corroboration and declarant availability, and then also examines circumstances surrounding the making of the statement and factors bearing on the declarant's credibility.

There are many such factors thought to bear on trust? worthiness. They include the clarity and detail of the state?

ment; the declarant's probable motivation; the absence of recantation; the identity of the person to whom the statement was made; whether the statement was voluntary; whether it was made under oath; the interval between the statement and the event it recounts. See, e.g., United States v. Guinan,

836 F.2d 350 (7th Cir. 1988). Sonenshein, supra, at 876 n.56 (collecting cases). And that lengthy catalog is not exhaustive.

Looking at just one of these trustworthiness criteria will illustrate how haphazardly the residual exceptions are ap? plied.

The criterion in question is bias or a motive to lie. You

might think that if an absent declarant had a motive to lie, the trustworthiness of his hearsay statement would be viewed with skepticism. Sometimes it is. See United States v. York, 852 F.2d 221 (7th Cir. 1988) (estranged son); United States v. Turner, 475 F. Supp. 194 (E.D. Mich. 1978) (accomplice statements to DE A in expectation of leniency). More often, it is not. See United States v. Chapman, 866 F.2d 1326, 1331

(11th Cir. 1989) (estranged wife); United States v. West, 51A F.2d 1131 (4th Cir. 1978) (accomplice).

One court has even come to the astonishing conclusion

that "personal vindictiveness" does not preclude admissibil

ity under the residual exceptions because it does not neces?

sarily entail a motive to testify falsely. United States v.

Guinan, 836 F.2d 350 (7th Cir. 1988). Remarkable decisions are not, however, confined to admitting dubious statements; at the other extreme, the declarations of a judge, who had no motive to lie and who spoke in his judicial capacity, have been held to lack trustworthiness. See Trustees of the Uni?

versity of Pennsylvania v. Lexington Insurance Co., 815 F.2d 890 (3d Cir. 1987).

Apparently, principled analysis cannot predict the out? come of disputes about trustworthiness. Perhaps a variant of Justice Stewart's "I know it when I see it" test will work. Look at the adventures of the Fourth Circuit, and judge for

yourself: Robert Neal, an officer of the Federal Protection Service

(FPS) was robbed of money and his service revolver. He im?

mediately prepared an affidavit stating that he believed that the robber was an FPS officer. The defendant, McCall, also an FPS officer, later confessed to the crime. In addition to the confession, Neal's gun was found in McCall's home. Neal died before trial, and his affidavit was admitted under Rule

804(b)(5). Following a bench trial, McCall was convicted. Before you try to predict the result of McCall's appeal,

you should know something else. The Fourth Circuit (which heard McCall's appeal) had previously held that statements of unavailable accomplices that were partially corroborated

by the trial testimony of other accomplices were trustworthy. United States v. Garner, 574 F.2d 1141 (4th Cir. 1978). You

might therefore expect that the testimony of a police officer

(Neal) relating the defendant's confession would be ade?

quately reliable. A confession?"the most probative and

damaging evidence that can be admitted"?Parker v. Ran?

dolph, 442 U.S. 62, 72 (1979)?and the recovery of the gun should have been ample corroboration to warrant a finding that Neal's affidavit was trustworthy. Not for the born-again Fourth Circuit. See United States v.

McCall, 740 F.2d 1331 (4th Cir. 1984). Ignoring all the corroboration, the court of appeals held that the Neal affida? vit was not reliable. After extolling the virtues of the hearsay rule, the court in essence found that a "simple affidavit" from a police officer with no motive to lie, 740 F.2d, at 1339, was not as trustworthy as the grand jury testimony of the accom?

plices in Garner.

Trustworthiness Flip-FIops In light of McCall, and an equally narrow view of the

exceptions in United States v. Walsh, IIA F.2d 679 (4th Cir.

1985), you should have no difficulty guessing the result of United States v. Workman, 860 F.2d 140 (4th Cir. 1988). In Workman, an admitted accomplice told the FBI, as part of a

plea agreement, about the defendant's alleged involvement in the receipt of a shipment of stolen liquor. The accomplice died before trial, and the trial court admitted the statement under Rule 804(b)(5). Reversed?

No! "Chang[ing] positions as nimbly as if dancing a

quadrille," Orlojfv. Willoughby, 345 U.S. 83, 87 (1957), the court of appeals affirmed, holding that the accomplice's willingness to meet with the defendant while wearing a wire recorder made his statement inherently reliable.

Such inconsistency and tolerance for evidence of dubious

reliability is not limited to criminal cases. In Nowell v. Uni

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versal Electric Co., 792 F.2d 1310 (5th Cir. 1986), the central issue was the source of an exploding barrel. The wife of the man injured in the explosion testified that, while in the

hospital, her husband told her the barrel had "come from" the defendant. This hearsay was received on the authority of the residual exception in Rule 804(b)(5), the declarant having died of his injuries before trial.

The decedent's free-floating hearsay statement was pretty flimsy stuff. It was merely an opinion. Its basis could not be determined because the declarant had died. The appeals court could not point to a single factor warranting a finding of trustworthiness. It even suggested that exclusion of the

hearsay would have served the interests of justice. Nonethe? less, in supposed deference to the district court's broad dis? cretion in the admission of evidence, it affirmed. Nowell is indefensible. It simply ignores Congress's view

that the residual exceptions are to be used only in exceptional circumstances. A district court is limited by the conditions in Rules 803(24) and 804(b)(5), but Nowell ignores that. It sub? stitutes in place of such restrictions an undefined, oceanic kind of "discretion." There is an irony in this; Congress rejected the residual exceptions as originally framed pre? cisely because they allowed such vagrant discretion.

Corroboration and Accomplices Because application of the residual exceptions is so fact

specific and haphazard, systematic criticism is difficult. However, two dubious analytic themes appear repeatedly in cases interpreting the trustworthiness requirement: One is undue reliance on corroboration; the other, failure to recog? nize the inherent unreliability of accomplice testimony.

In most recent cases, corroboration has played a central role in the evaluation of trustworthiness. There are two rea? sons why such reliance on corroboration may be wrong. The first is that Congress may have wanted corroboration to have no role in applying the residual exceptions. That is what/Zw/f v. White Motor Company, 609 F.2d 286 (7th Cir. 1979), concludes.

Huff holds that courts are statutorily prohibited from using corroboration as a basis for a finding of residual exception trustworthiness. Here is why: The rules require that the circumstantial guarantees of trustworthiness be "equivalent" to those of enumerated hearsay exceptions. But the presence or absence of corroborative evidence is irrelevant to the

application to those exceptions. Therefore, the Huff court

concluded, it is likewise irrelevant to questions of admissi

bility under the residual exceptions. Under Huff, the angle of

judicial vision is narrow. The only "guarantees of trustworthiness" to be considered are those that existed when the statement was made.

Huff is still cited by other courts with approval, but its circumscribed view of the trustworthiness factor has been

ignored even in the Seventh Circuit, which now relies heav?

ily on the presence or absence of factual corroboration. See United States v. Guinan, 836 F.2d 350 (7th Cir. 1988). Still, Hujfs construction of congressional intent has force. It should be used in opposing attempts to admit residual hear?

say where trustworthiness is bottomed on corroboration. A second reason that reliance on corroboration may be

misplaced is that such reliance often rests on a faulty prem

ise. Courts seem to think that partial corroboration of a dec? laration guarantees trustworthiness, not only of the parts cor?

roborated, but also of the uncorroborated portions. This assumption is contrary to the bitter experience of

centuries of litigation?especially criminal litigation. Pe?

ripheral aspects of a hearsay declaration often can be cor? roborated at trial, but the core proposition generally cannot. It is, for example, one thing to substantiate all the rich details

surrounding the planning of a meeting?its location, the method of transportation, and so forth. It is quite another to infer from that corroboration that the meeting was in fact illicit, as claimed in the uncorroborated portion of a declarant's statement. Put another way, corroboration of

things that do not matter in a statement is not corroboration of things that do. Whatever validity the corroboration theory might have in

instances?exceedingly rare?where the declarant has no interest in the outcome of the case, it will generally have none when the declarant is an accomplice or convicted felon.

On this point, more courts should heed Lee v. Illinois, 476 U.S. 530 (1986). In Lee, an accomplice's confession seri?

ously incriminated the defendant. That confession was sub?

stantially corroborated by the defendant's own confession, as well as the physical evidence. Nonetheless, this partial corroboration was held to be constitutionally insufficient to

permit the uncorroborated aspects of the declaration to be admitted without cross-examination. The Court said that a

danger inherent in an incriminating hearsay declaration of an

accomplice is the statement's "selective reliability." Accom?

plice hearsay, the Court held, is inherently unreliable; it is often the product of the accomplice's desire to shift or spread the blame, to curry favor with the prosecution, or to avenge

Acceptance of hearsay from

accomplices and informants conflicts with the intent of the residual exceptions.

himself for some real or fancied wrong. An accomplice's statements, Lee held, are less credible than ordinary hearsay. 476 U.S. at 541, 545.

Unfortunately, in their zeal to transform the residual ex?

ceptions into superexceptions to the hearsay rule, federal courts have largely ignored the "inevitably suspect" nature of accomplice hearsay, and now routinely admit grand jury testimony of accomplices and informants. See United States v. Guinan, 836 F.2d 350 (7th Cir. 1988); United States v.

Marchini, 797 F.2d 759 (9th Cir. 1986); 4 Weinstein's Evi?

dence, H 804(b)(5)[01], at 804-178-179. These decisions are

hopelessly inconsistent with the limited role Congress envi? sioned for Rule 804(b)(5).

The Advisory Committee Notes to the proposed Rules of Evidence emphasized that the residual exceptions were in? tended to "provide for new and presently unanticipated situ? ations . . . ." (emphasis supplied). The Senate Judiciary Committee's Report on the Rules (as revised) states that the

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residual exceptions are not intended to "authorize major judicial revisions of the hearsay rule ...." Those conditions

ought to doom the admission of corroborated grand jury and

accomplice testimony of unavailable declarants. Such evi? dence has been around almost forever; it presents neither "new" nor "exceptional" situations. Its general admission is

surely a "major revision" to the rule and its enumerated

exceptions. See United States v. Thevis, 665 F.2d 616, 629

(5th Cir. 1982). The courts need a healthy dose of reality. The fact that

evidence was given before a grand jury adds little to its

reliability. The grand jury room is not a confessional or an oasis of honesty where, briefly pausing for a moment from their dishonest pursuits, felons and crooks bare their souls for the good of their fellow man. Whatever its historical and theoretical purposes, the grand

jury is today an extension of the prosecutor. Its proceedings are closed and nonadversarial. Nothing in its procedures ensures that evidence presented to it has circumstantial guar? antees of trustworthiness. See Garner v. United States, 439 U.S. 936 (1978) (Stewart, J., dissenting from denial of cer

tiorari).

Anyone with any grand jury experience can attest to the lack of solemnity of grand jury proceedings and the enormous pressures to which witnesses are subjected. Rarely does the prosecutor not have a preordained view of the truth; witnesses are keenly aware of what is expected of them. A recent incident from my own practice may be informative. Our client was indicted for bribing an important Chicago

official. He denied any guilt. Following severance of his trial from the official's, the prosecutor sought to immunize our client so the client could tell the grand jury about his relation?

ship with the official. The chief judge rejected our claim of

grand jury abuse and issued the immunity order.

Grand Jury Pressure At the time of the immunity grant, the district judge ex?

pressly told our client that he could leave the grand jury room to consult with me. On not less than 13 occasions he tried to do so. Most of those attempts were prevented, either through the prosecutor's subterfuge or intimidation by the grand jury. For example, once when the witness asked to consult with me, the prosecutor withdrew the pending question, only to ask it again in a disguised fashion:

PROSECUTOR: Okay, let me ask you this. And, be? lieve me, Mr. [Witness], we are not trying to trick you.

Let me put that aside, if I can, okay? WITNESS: All right. PROSECUTOR: And we'll come back to that, okay, and see if I can?I mean, ask a few more questions that will clarify that. And, if you have a problem with it, we'll let you talk to your lawyer. Okay?

? ? ?

WITNESS: Now, I'm going to have to ask my attorney that.

PROSECUTOR: All right. WITNESS: If you wouldn't mind. PROSECUTOR: Okay, let me back off that question, then, if I can, okay, to make it easier for you.

At one point, the witness in desperation said, "You won't let me out the door." The prosecutor responded, "Well, no, I'll let you out the door if you want to?[laughter]." The witness was not allowed to leave. Thereafter, the grand jury foreman said, "You don't need to talk to your attorney." He ordered the witness to "sit down."

Later the foreman said, "[T]he grand jury is getting very tedious [sic] with you running in and out on some things that

There is no reason to think grand jury evidence has "circumstantial guaran? tees of trustworthiness."

you can answer yourself, okay?" When the witness protested that he had "been in here for an hour and a half, I think I left three times probably [for a total of about one minute]," the

prosecutor obsequiously said, "Mr. Foreman, I?under?

stand the grand jury's frustration and I would agree with the

grand jury." Ultimately, the witness made statements that arguably

incriminated the official. According to many cases, if the witness had become unavailable, his testimony might have been admissible under Rule 804(b)(5): After all, he was under oath, he had personal knowledge of the matters about which he testified, some aspects of his story could be cor?

roborated, and he had been granted immunity. See United States v. Curro, 847 F.2d 325 (6th Cir. 1988). Without passing judgment on our client, such reasoning

makes no sense. Even ignoring the intimidating atmosphere of the grand jury, the existence of a grant of immunity should not lead to a conclusion of reliability, as some courts have held. See, e.g., Thevis, supra. In fact, in most circuits, a grant of immunity warrants a jury instruction that testimony of the immunized witness is to be received with great caution.

Finally, as noted, partial corroboration manifestly does not

provide sufficient guarantees of trustworthiness under Rule

804(b)(5) or the Confrontation Clause. There are other flaws in the reasoning that supports admis

sibility. The reliability of accomplice statements is not en? sured because they are accompanied by an oath. Criminals

generally have no more regard for an oath than for the laws

they have admittedly broken?as the extraordinary career of Melvin Weinberg dramatically demonstrates. See Louis Vuitton SA. v. Pun Yang Lee,_ F.2d_(7th Cir. 1989) (Slip Op. 88-2835, 5/16/89). At trial, accomplices testify under oath, but the jury is, again, instructed to weigh their testi?

mony with great caution, Parker v. Randolph, 442 U.S. 62, 70 (1979); LaBuy, Jury Instructions in Federal Criminal Cases, ? 6.07 (1965). The presence of the oath simply does not provide "circumstantial guarantees of trustworthiness

equivalent to" those of the enumerated hearsay exceptions. In determining the admissibility of grand jury testimony

under Rule 804(b)(5), courts would do well to remember that

(please turn to page 62)

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lege (as scholarly research can lead to

publication) and the peer review proc? ess privilege (as such research impli? cates issues of academic freedom). De?

spite these similarities, only a few courts have actually recognized the scholar's privilege. See Richards of Rockford, Inc. v. Pacific Gas & Elec? tric Co., 71 F.R.D. 388 (N.D. Cal.

1976). More often, the courts find that if there is a scholar's privilege at all, the

party invoking the privilege must, at a

minimum, show the scholarly nature of his investigation, and the need for as? surances of confidentiality in his re? search. Research on something like

"Sociology of the American Restau? rant" is likely not enough. In re Grand

Jury Subpoena, 750 F.2d 23 (2d Cir.

1984). Even if a better showing is

made, the privilege is qualified. In the end, the research on behalf of

your client who may have run afoul of the law (and who did talk too much) is a

mixed bag. Some discussions will never be repeated in court; others may be. If nothing else, it has been an edu? cation. You can add conversations with

physicians and family to the pitfalls facing the client wanting to commit the

perfect crime. And you have learned that if you have done something your? self that you'd rather not have a federal court hear about, for heaven's sake,

don't tell your analyst. 10

Residual

Exceptions

(continued from page 31)

"[t]here is a real world as well as a theoretical case." Lee v. Illinois, 476

U.S. 530, 548 (1986) (Blackmun, H., dissenting). Accomplice testimony should be judged accordingly.

The conclusion is inescapable: Courts have been?to be charitable? less than attentive to congressional in? tent in interpreting the trustworthiness

requirement of the residual exceptions. The same criticism, however, cannot be leveled as uniformly at the application of other residual exception require? ments.

For example, the second requirement

for admissibility?that the hearsay must be more probative on the point for which it is offered than any other rea?

sonably obtainable evidence?has been implemented far more faithfully to the design and spirit of the Federal

Rules.

Most Probative? This second requirement has an in?

teresting consequence. Unlike the enu? merated hearsay exceptions of Rule

803, which are not affected by the

availability of the declarant, Rule

803(24) (the residual exception) has a built-in requirement of unavailability. This flows from the requirement that the proponent of the hearsay use rea? sonable efforts to procure the most pro? bative evidence. United States v.

Mathis, 559 F.2d 294, 299 (5th Cir.

1977). Most courts hold that live

testimony is the most probative evidence?United States v. Inadi 475 U.S. 387, 394 (1986)?and so hearsay is generally not admissible under the resolved exception if the declarant is available. Noble v. Alabama Dept. of Environmental Management,_F.2d_

(11th Cir. 1989) (Slip Op. 88-7234); In re Fine Paper Antitrust Litigation, 751 F.2d562,586 (3d Cir. 1984).

The "most probative evidence" re?

quirement is interwoven with the re?

quirement that "reasonable efforts" be used to secure other evidence. DeMars v. Equitable Life Assurance Society, 610 F.2d 55 (1st Cir. 1979), for ex?

ample, reversed a district court deci? sion admitting the written report of an unavailable expert, because, with rea?

sonable effort, the proponent could have procured the opinion of an avail? able expert.

The "most probative evidence" re?

quirement demonstrates Congress's preference for live testimony. Admissi?

bility of hearsay under the residual ex?

ceptions is thus a function not merely of reliability (the position taken in the

proposed rules) but of necessity as well. This is as it should be. Juries are most apt to be attentive to and per? suaded by live testimony. So are

judges, although for reasons of admin? istrative convenience they may prefer an in-chambers review of documents

and depositions. The preference for live testimony

does not mean, however, that out-of

court declarations can never be used

when the declarant actually testifies and is subject to cross-examination.

Where the hearsay is inconsistent with the witness's trial testimony and other? wise satisfies the requirements of Rule

803(24), some courts have held that the

prior inconsistent statement may be admissible?not merely for impeach?

ment?but as substantive evidence, even though it was not made under oath. See United States v. Popenas, 780 F.2d 545 (6th Cir. 1985); United States v. Williams, 573 F.2d 284 (5th Cir.

1978). These decisions are questionable.

Rule 801(d)(1)(A) explicitly precludes the use of prior inconsistent statements as substantive evidence unless they were made under oath at a prior trial or other proceeding. It seems doubtful that, having chosen to exclude unsworn statements in Rule 801(d)(1)(A), Con?

gress intended that such statements could be received for their truthfulness

through the back door of Rule 803(24). The residual exceptions were designed for the "exceptional" case; far from

being exceptional, impeachment with unsworn prior inconsistent statements is one of the most common occurrences in trials. A third requirement for admissibility

under the residual exceptions is that the

hearsay be offered as evidence of a "material" fact. All courts have held that, here, "material" simply means relevant. It is hard to understand why Congress, after carefully avoiding the term "material" throughout the rules, would have used that very term in the residual exceptions if it simply meant

relevant?especially because Rule 401 's definition of relevancy embraces

materiality. Still, in this context only, "material" means "relevant."

The final substantive requirement is that admission of the evidence serves the ends of justice and the general pur? poses of the rules. Ordinarily, this im?

poses no separate burden. If hearsay is found relevant, highly probative, and

trustworthy, its admission is said nec?

essarily to satisfy this requirement. United States v. Chapman, 866 F.2d

1326, 1332 (11th Cir. 1989); United States v. Dorian, 803 F.2d 1439, 1445

(8th Cir. 1986). The last requirement of the residual

exceptions is procedural: The propo? nent must give adequate pretrial notice of his intent to rely on a residual excep

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tion. Some courts interpret this require? ment literally, refusing to admit evi? dence unless there has been strict

compliance. United States v. Ruff in, 575 F.2d 346 (2d Cir. 1978). Others have been more flexible. See United States v. Doe, 860 F.2d 488, 492 (1st Cir. 1988) and United States v. Scrima, 819 F.2d 996, 1001 (11th Cir. 1987).

Do not take the notice requirement lightly, hoping for judicial liberality. The legislative history of the rule makes clear that Congress thought no? tice was important. United States v.

Iaconetti, 540 F.2d 574, 578, n.6 (2d Cir. 1976). Courts will simply ignore arguments about admissibility where there has been no attempt to comply with the notice requirement. United States v. Zamora, 784 F.2d 1025, 1031 (10th Cir. 1986). Therefore, if you have a solid piece

of residual hearsay, do not take a chance. Give timely notice. Con?

versely, if you might need to defend

against such evidence, you should rou?

tinely send a written request to your adversary, asking that he notify you if he intends to rely on the residual ex?

ceptions. If you get no response, tell the court. If your adversary tells the court he will not rely on the residual

exceptions, he will probably be un? able to explain later that notice was

impossible. Suppose you oppose residual-excep?

tion-based hearsay, and all of your ef? forts have failed. The judge admits

hearsay of questionable reliability. Is there anything else you can do? Yes. Rule 806 allows a party against whom

hearsay has been admitted to attack the

credibility of the declarant?just as if he had testified at trial. If you have been given timely notice, this means

you should get a chance to obtain infor? mation about the declarant. Therefore, if you are confronted midtrial with an offer of residual hearsay, and the court overrules your notice objection, de? mand whatever continuance is neces?

sary to meet the force of that evidence and impeach the declarant.

The residual exceptions to the hear?

say rule are evolving in a way their authors never could have imagined.

Whether the pressures for continued

expansion will prove inexorable re? mains to be seen. What is certain is that the days of predictable exclusions of

hearsay are gone forever. 10

Legal Lore

(continued from page 50) for six years. He died in 1978 at the age of 84.

The final member of the distin?

guished quartet of the golden years was Lloyd Paul Stryker. In his 1955

obituary in The New York Times, he was called "the most celebrated Ameri? can criminal lawyer since Clarence Darrow."

Stryker began his legal career with a brief two-year stint as an assistant dis? trict attorney in New York County in

1909, but he did not look with pride upon his prosecutorial duties. His writ?

ings leave little doubt that he favored the role of defender. Anyone who has read The Art of Advocacy, A Plea for the Renaissance of the Trial Lawyer (1951)?especially the chapter titled

"Advocacy and the Criminal Law"?

quickly senses Stryker's desire to de? fend the unjustly accused.

Stryker always practiced alone. He felt that was the only way he could remain truly independent. Stryker de? scribed, as only one who has personally experienced it could, the feelings of the advocate who practices alone or in a small firm when a new case arrives:

In the great law offices, with their

innumerable partners, countless

law clerks, and unfailing corpo? rate retainers, a new case, I imag?

ine, excites no such emotion. But for the lawyer who devotes him? self to advocacy and nothing else, a new and interesting case is

always an event. Perhaps it may arrive in the turmoil of other

preparations or it may be during the trial of some other case, or, as

is sometimes the case with even the most successful advocates, it

may punctuate a long drought. For while there is nothing com?

parable in interest, so there is

nothing similar to the uncertain? ties of a trial counsel practice.

Courtroom Combat

Stryker, a true combatant, thought little of other lawyers who worked qui? etly removed from courtroom clashes, though often with enormous financial rewards, "drawing up corporate mort?

gages." "A trial," he told an inter?

viewer, "is still an ordeal by battle. For the broadsword there is the weight of evidence; for the battle-ax, the force of

logic; for the sharp spear, the blazing gleam of truth; for the rapier, the quick and flashing knife of wit."

His style was always aggressive, es?

pecially in highly publicized cases such as his defense of Alger Hiss, which

brought him international fame. He

began his cress-examination of Whit taker Chambers, Hiss's accuser, in a

typically confrontational way:

Q. Mr. Chambers, do you know what an oath is? A. I suppose I do.

Q... . Well, what is your defini?

tion of an oath? A. I would say that an oath is that declaration which a man makes when he promises to tell the truth.

Q. And in our country, in our courts and elsewhere, it is an af? firmation made by a man who calls on Almighty God to witness the truth of what he says, is that

right? A. That is right.

The remainder of his cross-examina?

tion was skilled and relentless, explor? ing every discrepancy in Chambers's statements. Chambers was forced to admit to six instances of false testi

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