Changes in Federal Rules: Residual Hearsay (Rule 807)

Rules of civil procedure limit the use of out-of-court statements that are used to prove the truth of something asserted. 

Essentially, the statement must fall under one of the exceptions to the hearsay rule.  The residual hearsay rule is one of those exceptions, and, recently, the rule was amended.

Prior to the amendment, the residual hearsay exception allowed a statement to come into evidence if the statement was trustworthy, material, and served the interests of justice.  In December of 2019, the amendment went into effect.  No longer does a statement have to be “material” and no longer does the statement have to serve the interests of justice.  Also, the new rule no longer requires notice of intent to use the statement prior to the trial or hearing.

Now, the residual hearsay exception requires that an out-of-court statement must be trustworthy and outweigh the probative value of other reasonably available evidence.  Probative means it tends to prove something.  As noted above, the new rule states that the court can make its decisions on whether to admit the evidence during the trial or hearing if there is good cause and lack of notice does not prevent the evidence from coming in. 

Some say the changes to Rule 807 will allow more hearsay to be admitted.  Others state that the changes only clear up confusion and operates to give the trial judge more power as the gatekeeper of evidence. 

Either way, the rule has changed and trial attorneys must pay close attention in the future to this change and others that went into effect.  If you need help with a dispute or are thinking of filing a lawsuit, contact the trial attorneys at the Goosmann Law Firm, PLC, in our Omaha, Sioux City, or Sioux Falls offices.  We are here to help.