Delaware Trial Handbook § 16:6: RESIDUAL EXCEPTION

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness is not excluded by the hearsay rule, 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 makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.143

The purpose of this exception is to cover “new and presently unanticipated situations which demonstrate a trustworthiness within the spirit of the specifically state exceptions.”144 The inclusion of this exception preserves the power of the court to broaden within reasonable limits the exceptions to the hearsay rule as circumstances might dictate.  In the past, this has been done in the form of creating new exceptions.  In the future, the form that it will take will be by reference to the requirements and authority of this exception.

A trial judge must construe the requirements of Rule 807 narrowly so that the exception does not swallow the hearsay rule. Thus, “[t]he Court must be satisfied that there is a guaranty of trustworthiness associated with the proffered hearsay statement that is equivalent to the guaranties of trustworthiness recognized and implicit in the other hearsay exceptions.145

143.  D.R.E. 807. See also Coles v. State, 959 A.2d 18, 24 (Del. 2008).  In 2001, this exception was moved from D.R.E. 803(24).  D.R.E. 807 comment.

144.  Fed. R. Evid 803(24) advisory committee’s note.

145. Purnell v. State, 979 A.2d 1102, 1107 (Del. 2009); Cabrera v. State, 840 A.2d 1256, 1268 (Del. 2004); Brown v. Liberty Mut. Ins. Co., 774 A.2d 232, 242 (Del. 2001).

© 2010 David L. Finger