Are Rule 803 Hearsay Statements More Reliable Than Rule 804 Hearsay Statements?
As I was reviewing the Advisory Committee’s Notes to Federal Rules of Evidence 803 and 804 yesterday, I came across something that I have never noticed before. And what I noticed has led me to ask the following question: Are statements falling under a Rule 803 exception generally thought to be more reliable than statements falling under a Rule 804 exception?
sets forth hearsay exceptions that apply “regardless of whether the declarant is available as a witness.” Meanwhile, the hearsay exceptions created by Federal Rule of Evidence 804 only apply “if the declarant is unavailable as a witness.”
Falling in the “it makes sense but I had never thought about it before” category is thus the Advisory Committee’s Note to Federal Rule of Evidence 803, which states that
The present rule proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available.
This then takes me back to my question of whether statements falling under a Rules 803 exception are generally thought to be more reliable than statements falling under a Rule 804 exception. I think that the answer has to be “yes.” The necessary implication of the above quote is that a Rule 804 statement does not “possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available.” And, of course, this is true. Federal Rule of Evidence 804 only applies when the declarant is unavailable; if the declarant is available but not produced the Rule 804 hearsay exceptions don’t apply.
What this means is that statements qualifying for admission under Federal Rule of Evidence 804 do not have equivalent circumstantial guarantees of trustworthiness as statements qualifying for admission under Federal Rule of Evidence 803. Instead, they are admitted presumably because of some combination of lesser circumstantial guarantees of trustworthiness and other factors, such as evidentiary need (something that is often mentioned in connection with dying declarations under Federal Rule of Evidence 804(b)(2)).
So, what does this mean? If the prosecution admits a dying declaration under Federal Rule of Evidence 804(b)(2) and the defense admits an excited utterance under Federal Rule of Evidence 803(2), can the defense argue that the excited utterance is the more reliable statement? And what about Federal Rule of Evidence 807, the residual hearsay exception, which allows for the admission of hearsay not specifically covered by Federal Rules of Evidence 803 and 804 if, inter alia, “the statement has equivalent circumstantial guarantees of trustworthiness.” How do we apply this exception if we assume that Rule 803 have higher circumstantial guarantees of trustworthiness than Rule 804 statements?
-CM