This paper will discuss various aspects of Federal Rule of Evidence 804(b)(5). The first part of the paper will briefly discuss the common law and legislative history of the rule. The second part of the paper will examine the rationale underlying the rule. The third part of the paper will briefly discuss comparative California law on the subject. The last part of the paper will examine how the rule has been applied and some criticisms of the rule and its application.
Federal Rule of Evidence 804(b)(5) provides a fifth exception to the general rule prohibiting the admission of hearsay evidence where the declarant is unavailable, allowing the following kind of statement:
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, 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; (C) the general purpose 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, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
This rule is identical in language to Rule 803(24), which provides an exception to the hearsay rule in situations where the availability of the declarant is immaterial. Thus, for the purposes of this paper, the two rules will be considered as identical, since the judicial interpretations of these two rules have been identical.
The legislative history behind Rule 804(b)(5) extends back to th...