Turnabout Is Fair Play


A defendant is being tried for a robbery committed by a lone gunman at three in the afternoon. Defense counsel gives appropriate notice of his intention to use Rule 804(b)(5) and establishes that he served several subpoenas at declarant Smith's home. Smith has not responded, and the attorney states that he has no further knowledge of Smith's whereabouts.

At trial, defendant seeks to introduce a transcript of questions by his attorney and answers by Smith made shortly after the defendant's arrest. A notary, available for trial, administered an oath to Smith. The stenographer who made the transcript swears to its accuracy. The transcript contains Smith's assertions that defendant was with him the entire day, the two did various activities together, and defendant could not have been the robber because the defendant and Smith were watching television together at the time of the robbery.

The defense then produces the parish priest who confirms that Smith and the defendant attended Mass together, as Smith asserted. Bank records confirm Smith's assertion that the defendant deposited a check, and the bank's surveillance film establishes that Smith and the defendant were there together. People from a take-out-food restaurant remember Smith and the defendant. Television station logs corroborate Smith's description of the shows they watched together. A waitress testifies that Smith and the defendant ate dinner together that night.

Are Smith's out-of-court declarations admissible?(1)


Randolph Jonakait is critical of the Fourth Circuit's liberal use of Rule 804(b)(5) to admit the grand jury testimony of a witness who does not testify at trial. In analyzing the West and Garner cases, among others,(2) Jonakait states that the Fourth Circuit's interpretation of the residual exceptions "are not only stretching the boundaries of the specific exceptions, but are replacing the traditional hearsay structure with one explicitly rejected by the Rules' drafters. As a result, the fundamental hearsay framework adopted in the Federal Rules of Evidence is being subverted." Jonakait, The Subversion of the Hearsay Rule: The Residual Hearsay Exceptions, Circumstantial Guarantees of Trustworthiness, and Grand Jury Testimony, 36 Case W. Res. L. Rev. 431, 433 (1986).

The crucial error, according to Jonakait, is the Fourth Circuit's reliance on corroboration as the touchstone of admissibility under Rule 804(b)(5). Jonakait points out that grand jury testimony of a witness who is unavailable or refuses to testify at trial is generally inadmissible as former testimony (no cross-examination at the grand jury), statements against interest (statements often an attempt to curry favor with the prosecution), co-conspirator's admission (not during and in furtherance of the conspiracy), or prior inconsistent statements (foundational requirement of trial cross-examination absent). Id. at 441-445. The court in West and Garner focused on the other testimony offered that tended to prove the fact of the defendants' guilt--details of the crimes--that were consistent with the declarants' grand jury testimony. But Jonakait finds that, in fact, the corroborating evidence was quite thin in Garner and in most of the other cases admitting the grand jury testimony, and that the court used that evidence selectively to show the truthfulness of portions of the grand jury testimony, ignoring the lack of corroboration of other facts as well as factors that tended to show its untrustworthiness. Id. at 451.

Jonakait argues that looking to corroboration of the declarant's grand jury testimony at the time of trial is wrong for five reasons. First, "it leads to the near routine admission of grand jury testimony," which conflicts with other hearsay provisions. Id. at 458-459. Second, it is inconsistent with the congressional intention that the residual exceptions would authorize the admission of hearsay "only in truly exceptional circumstances." Id. at 459. Third, the corroboration requirement is internally inconsistent with the necessity requirement of Rule 804(b)(5)--the "more probative than other reasonably obtainable evidence" requirement. The more corroboration, the less necessary is the hearsay. Id. at 459-460. Fourth, the corroboration requirement is difficult to justify under standard statutory construction doctrine because "corroborating circumstances" was used in Rule 804(b)(3) but not in Rule 804(b)(5). Presumably, Congress would have said "corroboration" in the latter if that is what it meant. Id. at 460. Fifth, it tempts courts to admit proscribed hearsay that is a "near-miss" of some other exception or exclusion. Jonakait argues that "near-misses" may be "covered" by an exception within the meaning of the opening words of the residual exceptions, that is, within the ambit of a specific exception, but not be admissible under the specific exception, and that the proper disposition of such evidence is exclusion, not admission if the evidence is corroborated. Id. at 461-462.

The correct approach to the residual exceptions, Jonakait argues, is similar to the approach of the specific exceptions. Direct reliability is not the test. Rather, "circumstances that assure reliability must be measured":

When deciding whether hearsay falls within a traditional exception, the court only decides whether the circumstances surrounding the statement fit the exception's requirements. For example, before hearsay can be admitted as an excited utterance, the court has to decide whether the out-of-court statement was made "under the stress" of an exciting event.... The court evaluating such statements decides questions that are different from ones the jury must ultimately determine. It rules on admissibility without ever considering whether it believes what the excited ... declarant said.

Id. at 465.

Under this approach, and considering the circumstantial guarantees of trustworthiness of the other Rule 804 exceptions, Jonakait concludes that for evidence to be properly admissible under Rule 804(b)(5), one or more of the traditional hearsay dangers of memory, perception, narration, or sincerity must be eliminated or lessened comparable to the specific exceptions, and that "the guarantees of trustworthiness must exist at the time of the hearsay's making," not after hearing the other evidence at trial. Id. at 469-470.

Do you agree with Professor Jonakait's analysis? What result would application of Jonakait's analysis have on the West and Garner cases?


1. From Jonakait, The Subversion of the Hearsay Rule: The Residual Hearsay Exceptions, Circumstantial Guarantees of Trustworthiness, and Grand Jury Testimony, 36 Case W. Res. L. Rev. 431, 463-464 (1986).

2. See also United States v. Walker, 696 F.2d 277 (4th Cir. 1982), cert. denied, 464 U.S. 891 (1983); United States v. Murphy, 696 F.2d 282 (4th Cir. 1982), cert. denied, 461 U.S. 945 (1983); United States v. Thomas, 705 F.2d 709 (4th Cir.), cert. denied, 464 U.S. 890 (1983).

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