Page:Title 3 CFR 2005 Compilation.djvu/206

 Executive Orders EO 13387 The Rule strikes a balance between the general policy behind the Rules of Evidence of permitting admission of probative and reliable evidence and the congressional intent "that the residual hearsay exceptions will be used very rarely, and only in exceptional circumstances." S. Rep. No. 93-1277, reprinted in 1974 U.S.C.C.A.N. 7051, 7066. MRE 807 represents the acceptance of the so-called "catch-all" or "residual" exception to the hearsay role. Because of the constitutional concerns associated with hearsay statements, the courts have created specific foundational requirements in order for residual hearsay to be admitted. See United States v. Haner, 49 M.J. 72, 77-78 (C.A.A.F. 1998). These requirements are: necessity, materiality, reliability, and notice. The necessity prong "'essentially creates a %est evidence' requirement.'" United States v. Kelley, 45 M.J. 275,280 (C.A.A.F. 1996) (quoting Larez v. City of\234os Angeles, 946 F.2d 630, 644 (9th Cir. 1991)). Coupled with the rule's materiality requirement, necessity represents an important fact that is more than marginal or inconsequential and is in furtherance of the interests of justice and the general purposes of the rules of evidence. There are two altemative tests in order to fulfill the reliability condition. If the residual hearsay is a "non-testimonial statement," the proponent of the statement must demonstrate that the statement has particularized guarantees of trustworthiness as shown from the totality of the circumstances. Idaho v. \177Vright, 497 U.S. 805 (1990). The factors surrounding the taking of the statement and corroboration by other evidence should be examined to test the statement for trustworthiness. The Court of Appeals for the Armed Forces has held that the Supreme Court's prohibition against bolstering the indicia of reliability under a Sixth Amendment analysis does not apply to a residual hearsay analysis. Therefore, in addition to evidence of the circumstances surrounding the taking of the statement, extrinsic evidence can be considered. United States v. McGrath, 39 M.J. 158, 167 (C.M.A. 1994)." However, if the residual hearsay is a "testimonial statement," e.g. "affidavits, custodial examinations, prior testimony that the [accused] was 193

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