MBE Rules · Evidence
Residual Exception
FRE 807
The rule
A trustworthy hearsay statement not covered by a listed exception may be admitted if it is more probative on the point than other reasonably obtainable evidence and the proponent gives pretrial notice.
In plain English
The Residual Exception allows a hearsay statement to be admitted in court even if it doesn't fit into a traditional hearsay exception, as long as it is trustworthy and more relevant than other available evidence. The party wishing to use this statement must also provide notice to the opposing party before the trial begins.
Worked example
During a trial, a witness recalls a conversation where the defendant admitted to being at the scene of the crime. This statement is not covered by any hearsay exception, but the proponent believes it is highly relevant and trustworthy. They provide pretrial notice, and the court admits the statement as it is deemed more probative than other evidence available. The outcome is that the statement is allowed into evidence.
Memory hook
Trustworthy hearsay can sneak in if it's the best evidence and you give notice!
The trap
Examinees often overlook the requirement for pretrial notice or mistakenly believe that all hearsay must fit into a traditional exception. They may also underestimate the importance of the statement's probative value.
How examiners test it
Questions typically present a scenario involving a hearsay statement that doesn't fit standard exceptions, testing the candidate's knowledge of the Residual Exception and its requirements.
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