Comment by Lizbeth A. Turner
As a general rule, hearsay testimony is not admissible under the Federal Rules of Evidence. However, the prohibition against the admission of hearsay evidence is riddled with exceptions. Rule 804(b)(5) of the Federal Rules of Evidence and its identically-worded counterpart, rule 803(24), are commonly referred to as to as the residual or catchall exceptions. Enacted to promote growth in the evidentiary rules, they allow the admission of certain trustworthy hearsay evidence not otherwise admissible under the enumerated exceptions of rules 803 and 804. After a decade of interpretation of the residual exceptions by the federal courts, it appears that these catchall exceptions pose both interpretative and constitutional problems. The constitutional dilemma is most evident when an out-of-court statement is offered against a criminal defendant under rule 804(b)(5).
This comment will focus on the admissibility of a hearsay statement by an unavailable declarant under rule 804(b)(5). It will then analyze and compare the interpretations of rule 804(b)(5) by the lower federal courts. Particular emphasis will be given to recent cases that have admitted or excluded grand jury testimony. In this context, the constitutional questions raised by the admission of rule 804(b)(5) hearsay statements will be explored and the divergent responses of the federal courts to these questions will be compared. Finally, a uniform resolution of the problems presented by the admission of grand jury testimony under the residual exceptions will be proposed.
About the Author
Lizbeth A. Turner.
Citation
59 Tul. L. Rev. 1033 (1985)