Impact of New FRE 807 on Hearsay Evidence: New Residual Exception

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, May 12, 2020

Recorded event now available

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Program Materials

This CLE webinar will alert trial lawyers to the new opportunities and challenges presented by the Dec. 1, 2019, amendment to Federal Rule of Evidence 807 regarding the residual exception to the hearsay rule. The amendment relaxes some of the barriers to the admission of hearsay, and counsel must be aware of the changes.

Description

Hearsay evidence is excluded except when it is subject to a specific exception. Recognizing unanticipated exceptions, the drafters of the Federal Rules of Evidence created a "residual exception" designed to allow courts to admit hearsay evidence that, though not identified in the rules, a jury should consider.

Until December 2019, a party could attempt to introduce inadmissible hearsay only if the out-of-court declaration was trustworthy, material, and served the interests of justice. The new amendment eliminates the requirement that the evidence must be material and the condition that the proffered evidence must serve the interests of justice. Only the materiality and trustworthiness requirements remain. Further, the pretrial notice requirements have been relaxed, and a cause exception to those requirements has been introduced.

Depending on the commentator, these rules are (1) an inappropriate dilution of the hearsay exception, (2) an opportunity for counsel to better develop the evidence at trial, or (3) some version of both.

Listen as this panel of trial evidence experts examines the changes to the rule and provides guidance on using the rule to introduce, or prevent the introduction of, hearsay evidence.

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Outline

  1. Substantive changes
    1. Deletion of interest of justice requirement
    2. Increased importance of trustworthiness, materiality
  2. Process changes
    1. Changes to the content and type of notice
    2. Good cause exception
  3. Trial practice pointers

Benefits

The panel will review these and other notable issues:

  • What were the motivating factors behind the rule changes?
  • Are there pre-amendment cases that are helpful in understanding the amendment?
  • What types of evidence are most likely to survive objection?

Faculty

Davis, Abigail
Abigail S. Davis

Attorney
Skadden Arps Slate Meagher & Flom

Ms. Davis represents U.S. and international clients in a wide variety of complex commercial disputes in both federal...  |  Read More

Reuben, Mindee
Mindee J. Reuben

Counsel
Lite DePalma Greenberg

Ms. Reuben represents plaintiffs across the country in a broad range of antitrust and consumer class action matters,...  |  Read More

Smith, Caroline
Caroline B. Smith

Attorney
Butler Snow

Ms. Smith is a member of Butler Snow’s litigation department and practices within the Commercial Litigation...  |  Read More

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