Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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F. Exceptions to the Hearsay Rule-- The "Residuary Exception" (503)

Problem - An Accusing Finger (508)The point:

Don't believe everything you read in the newspapers. Or, more to the point, there is not a general exception to the rule against hearsay for newspaper stories, nor should there be.

Answer and Analysis:

The picture and caption, taken together, are hearsay. It is an out-ofcourt statement offered for the truth of its contents -- that the brink's guard identifies the man in the dark sweater as the robber. In fact, the picture and caption contain hearsay within hearsay. The picture/caption does not fall within any exception. The guard's accusation arguably falls within FRE 803(1) or (2). And if the guard were under belief of impending death and the prosecution was for homicide, it might qualify under FRE 804(b)(2). But, the picture/caption of the guard's accusation does not fall within any specific exception whether or not the guard is available at trial. A picture by itself, however, does not normally raise a hearsay problem because it is not a "statement." Once a relevant picture is authenticated under FRE 901 or 902 as accurately portraying what it purports to represent, it is generally admissible.

The picture/caption should not be admitted under either FRE 803 (24) or 804(b)(5). Certainly, if the guard is available, the picture/caption fails the FRE 803(24)(B) test of being more probative than other evidence on the point that the proponent can procure through reasonable efforts. Even if the guard is unavailable, the picture/caption should not be admitted. Although the need for the evidence may be great, and the picture/caption may be more probative than the testimony of someone who saw the guard point, the picture/caption lacks sufficient circumstantial guarantees of trustworthiness. Problems of clarity and perception are large. Problems of sincerity are also potentially great in this confrontation. The case for admission is weaker than in the Dallas County case (511), where the need for the photo was extremely high (there being virtually no other evidence on the point). The circumstantial guarantees of trustworthiness were also high. There, the picture reported a very public event which was not likely to be the subject of dispute at least as to whether a fire occured or not.

If the guard is available, introducing this picture/caption in lieu of the guard's testimony would violate the confrontation clause as surely as Cobham's letter in the Raleigh case (page 407) would. See Chapter VI below.

Problem - Emergency Evidence (516)

Answer and Analysis:

Both the tape recording and W's testimony of V's statements are hearsay. Arguably both are within FRE 803(1) or (2) as statements made by V explaining an event and condition during or immediately thereafter, or while under the stress caused by the event or condition. "I was just stabbed" probably also falls within FRE 803(3) and (4). The description of the two assailants is the most problematic V is not perceiving them as she talks, she does not appear excited, and she does not appear to believe her death imminent. Also, the descriptions are not necessary to aid in her treatment.

Even if the description is not admitted under the categorical exceptions, however, it should be admitted under 804(b)(5). It is evidence of a material fact, is more probative on the point than anything else that could be procured, and the general purposes of the rules and the interests of justice will be served because the statement has circumstantial guarantees of trustworthiness equivalent to the categorical exceptions mentioned above which are close but not strictly applicable. Advance notice must be given of the prosecution's intention to use the statement.

Problem - Turnabout Is Fair Play (544)

Most of the cases admitting evidence under the residual exceptions involve grand jury testimony offered by the prosection. This problem involves exclupatory testimony offered by the defendant. It is very material, more probative than other evidence that can be procured through reasonable effort, and there are cery substantial circumstantial guarantees of trustworthiness. Yet, the evidence would not be admissible under Rule 801(d)(1) because the declarant does not testify at trial, nor under Rule 804(b)(1) because the statement was not give at a trial or hearing at which cross-examination were possible. Should the same standard apply to such evidence as grand jury testimony ? Should a lower standard apply because it is offered by the defense and there are no confrontation clause concerns?

Problem - The Mystery of the Available Declarant (540)

Answer and Analysis:

The mystery is, why would a court ever stretch the hearsay rules when the declarant is available and could be called? The answer is that courts would not, and do not. All of the action under the residual exceptions to the hearsay rule comes under FRE 804(b)(5). See the following Note at 553554.

Certiorari was denied in Garner, 439 U.S. 936, 58 L.Ed. 2d 333, 99 S.Ct. 333 (1978), but with two Justices dissenting. Justice Stewart's dissent stated, in part:

Although they are not coextensive, the Confrontation Clause and the hearsay rule "stem from the same roots." Dutton v. Evans, 400 U.S. 74, 86 (1970). Considered under either the Sixth Amendment or the Federal Rules of Evidence, I have grave doubts about the admissibility of Robinson's grand jury testimony.

That the evidence was first given before a grand jury adds little to its reliability. In grand jury proceedings, the ordinary rules of evidence do not apply. Leading questions and multiple hearsay are permitted and common. Grand jury investigations are not adversary proceedings. No one is present to cross-examine the witnesses, to give the defendant's version of the story, or to expose weaknesses in the witnesses' testimony.

The only factor that generally makes grand jury testimony more trustworthy than other out-of-court statements is the fact that it is given under oath. The witnesses speak under the threat of prosecution for material false statements. But that usual indication of trustworthiness was missing here. Robinson recanted his grand jury testimony at the trial. By disclaiming under oath his earlier swom statements, he put himself in a position where one of his two sworn statements had-to be false. Without further proof, Robinson would appear to have violated federal law, and, after the petitioners' trial, the Government did, indeed, indict Robinson for violation of 18 U.S. C. 1623.

The Courts of Appeals are struggling with the problem of the admissibility of hearsay evidence not falling within one of the traditional exceptions to inadmissibility. The Fourth Circuit has taken a relatively liberal view of the admissibility of grand jury testimony, both in this case and in United States v. West, 574 F.2d 1131 (1978). In a similar situation the Fifth Circuit concluded that grand jury testimony was inadmissible. United States v. Gonzales, 559 F.2d 1271 (1977). Before the adoption of the Federal Rules of Evidence, the Second Circuit held that the use of grand jury testimony in a situation like this violated both the hearsay rule and the Sixth Amendment. United States v. Fiore, 443 F.2d 112 (1971). The Eighth Circuit, in a case in which the grand jury witness had not recanted his testimony, allowed the grand jury testimony to be admitted. United States v. Carlson, 547 F.2d 1346 (1976).

While those cases may be factually distinguishable, the conflict in interpretation among the Circuits remains. In some Circuits Rule 804(b)(5) is being used to admit grand jury testimony when the witness is unavailable, in others, it is not. Here, the witness recanted his grand jury testimony under oath at the trial, yet it was the crucial evidence in these petitioners' convictions.

I would grant certiorari to determine the limits placed upon the admissibility of this kind of evidence by either the Federal Rules of Evidence or the Constitution.

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