The Residual Exception to the Hearsay Rule: The Complete Treatment

40 Pages Posted: 23 Nov 2012

See all articles by G. Michael Fenner

G. Michael Fenner

Creighton University School of Law

Date Written: 2000

Abstract

This article is about the residual exception to the hearsay rule. It lists and distills the foundational elements of the rule. It discusses the issue of near-miss evidence and whether evidence that almost fits into one of the specific exceptions, but not quite, can be admissible under the residual exception — discusses the various approaches, concludes that the answer is that near-miss evidence can fit under residual exception, and supports that conclusion. The article discusses the various approaches courts have taken to the rule's requirement that the proponent of residual-exception evidence give pretrial notice of his or her intention to offer the evidence in question and how different courts interpret that requirement in different ways, including some that say that the requirement that proponents of residual-exception evidence have given notice "of their intention to offer the statement" "sufficiently in advance of trial" can be satisfied by notice given during trial. It discusses the use of the residual exception in cases charging child abuse.

The residual exception requires that the statement be "more probative on the point . . . than any other evidence which the proponent can procure through reasonable efforts." Perhaps its greatest contribution of this article is its discussion of the turncoat witness and the residual exception — how an out-of-court statement by a testifying witness can be more probative than the witness' cross-examinable in-court testimony and, therefore, admissible under the residual exception.

Keywords: hearsay, residual exception

Suggested Citation

Fenner, G. Michael, The Residual Exception to the Hearsay Rule: The Complete Treatment (2000). Creighton Law Review, Vol. 33, No. 2, 2000, Available at SSRN: https://ssrn.com/abstract=2176385

G. Michael Fenner (Contact Author)

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States

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