Federal Rule of Evidence

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

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penal interest even though no such exception was mentioned in the Evidence Code at that time. This decision was cited with approval in the legislative history of Section 1200, when the current code was being drafted in the middle 1960s. Indeed, the legislative history of this section reveals that the California Law Revision Commission originally intended to follow the lead of the Uniform Rules of Evidence and limit exceptions to those enumerated in the proposed evidence code. However, it reversed itself in July 1964 and decided to allow the judiciary to continue developing new exceptions to the hearsay rule. In its final recommendations, the Commission stated that the Code was not intended to "stifle all court development of the law of evidence�.[but] is deliberately framed to permit the courts to work out particular problems to extend declared principles into new areas of the law. As a general rule, the code permits the courts to work toward greater admissibility of evidence but does not permit the courts to develop additional exclusionary rules." Even with this interpretation of Section 1200, California courts have been reluctant to add exceptions to the hearsay rule beyond those enumerated in the Code. In fact, sin

Category: Government - F