709.6Residual Exceptions [Rules 803(24), 804(b)(5)]
- A hearsay statement that is not covered by any other exceptions in Rule 803 or Rule 804 may be admissible under the “residual exception” found in both rules.
- To offer a statement under either residual exception, the proponent must satisfy a six-part test demonstrating necessity, materiality, probative value, trustworthiness, notice, and the interests of justice.
The Basic Rules
Rules 803(24) and 804(b)(5) – Residual Exceptions
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, 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 best be served by admission of the statement into evidence.
However, a statement may not be admitted under this exception unless the proponent of it gives written notice stating his intention to offer the statement and the particulars of it, including the name and address of the declarant, to the adverse party sufficiently in advance of offering the statement to provide the adverse party with a fair opportunity to prepare to meet the statement.
Admissibility and Scope
The exceptions found in Rules 803(24) and 804(b)(5) are identical; the only difference between them is that Rule 804 only applies if the declarant is unavailable. See G.S. 8C-804(a). The exceptions in both rules are entitled “Other Exceptions,” but they are more commonly described in criminal practice as the “residual exceptions” or the “catch-all exceptions.”
These exceptions were not intended to allow the “unfettered exercise of judicial discretion” in admitting otherwise inadmissible hearsay evidence. G.S. 8C-803(24), Official Commentary. On the other hand, the exceptions do recognize the need to treat “new and presently unanticipated situations which demonstrate a trustworthiness within the spirit of the specifically stated exceptions” in a manner that accords with the existing exceptions. G.S. 8C-803(24), Official Commentary.
The admissibility requirements and legal issues related to offering evidence under the residual exceptions are comprehensively discussed in Jessica Smith, “Criminal Evidence: Hearsay,” N.C. Superior Court Judges’ Benchbook, October 2013, p. 28-34. Prosecutors who intend to rely on either residual exception are encouraged to consult that resource directly for guidance, and it will not be fully repeated in this entry.
But for convenience and reference, the six core requirements for admissibility under these two exceptions are briefly summarized below. See generally State v. Triplett, 316 N.C. 1 (1986) (interpreting the rule, and adopting the six-part test).
The hearsay statement sought to be introduced must not be covered by any other hearsay exception. See G.S. 8C-803(24); 8C-804(b)(5). Before admitting the statement, the trial court must make a finding on the record that no other exception applies. See State v. Smith, 315 N.C. 76 (1985).
The hearsay statement must be evidence of a material fact in the case (i.e., the matter must be significant, not merely collateral). G.S. 8C-803(24)(A); 8C-804(b)(5)(A). See, e.g., State v. Valentine, 357 N.C. 512 (2003); State v. Brigman, 178 N.C. App. 78 (2006).
The statement must be more probative than any other evidence the proponent could obtain on the same matter through “reasonable efforts.” G.S. 8C-803(24)(B); 8C-804(b)(5)(B). For example, has the party made a diligent effort to procure alternative nonhearsay evidence that could prove the same point? Is the proffered statement a crucial eyewitness identification of the perpetrator, or merely cumulative character evidence? See, e.g., State v. Williams, 355 N.C. 501 (2002); State v. Fowler, 353 N.C. 599 (2001); State v. Ryals, 179 N.C. App. 733 (2006).
The statement must have “circumstantial guarantees of trustworthiness” that are comparable to the other codified hearsay exceptions. G.S. 8C-803(24); 8C-804(b)(5). Relevant factors in making that determination include, but are not limited to, the declarant’s personal knowledge of the matter, his or her motive to tell the truth, whether the statement was ever recanted, and the declarant’s availability (or unavailability) for meaningful cross-examination. See, e.g., State v. Sargeant, 365 N.C. 58 (2011); State v. Fowler, 353 N.C. 599 (2001).
Written notice must be given to the opposing party of the proponent’s intent to offer the evidence, including the name and address of the declarant. See G.S. 8C-803(24); 8C-804(b)(5). There is no bright line rule on how much notice is required, and notice as short as a few days before trial has been upheld in some cases. The key inquiry is whether the opponent received a “fair opportunity” to prepare to meet the statement. See, e.g., State v. Fowler, 353 N.C. 599 (2001); State v. Anthony, 354 N.C. 372 (2001); State v. Nichols, 321 N.C. 616 (1988).
vi) Interest of Justice
Finally, the court must make a finding that the “interests of justice” will be served by allowing the hearsay statement into evidence. G.S. 8C-803(24)(C); 8C-804(b)(5)(C). Providing the jury with the “necessary tools to ascertain the truth” has been held to serve the interests of justice. State v. Valentine, 357 N.C. 512 (2003).