The “Other” Hearsay Exception

September 14, 2015 § Leave a comment

This happens from time to time in court:

Lawyer 1: Objection; hearsay.

Lawyer 2: Your honor, it’s an exception to the rule.

Judge: Which exception?

Lawyer 2: (After opening his rule book, searching frantically) Rule 803(24), judge.

MRE 803(24) is headed “Other Exceptions,” and it provides that a statement that does not neatly fit into the category of any other exception may be admitted if it has guarantees of trustworthiness equivalent to the specific exceptions, and if the court determines that (a) it is offered as evidence of a material fact, (b) it is more probative than any other evidence that the proponent could offer through reasonable efforts, (c) the general purpose of these rules (i.e., MRE 102) will best be served by admission of the statement.

Counsel usually makes a fairly cogent argument on the above. The judge then follows up with this query:

Judge: And did you give counsel opposite advance notice before trial?

That’s usually where the discussion ends, because most attorneys have not read the rest of Exception 24. Its most important language reads this way:

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, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Notice that the rule does not say that the statement would be objectionable if advance notice were not given. It says specifically that the statement “may not be admitted” without advance notice.

The case law is consistent that advance notice is a prerequisite to admissibility. See, for example, Benton v. Ivy, an unpublished 2012 COA decision that I posted about here. Also, Balius v. Gaines, 908 So.2d 791, 804 (Miss. App. 2005).

While you’re mulling this over, take a moment to glance at MRE 902(11)(C)( i ).

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