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7th Circuit Employs Rarely Used FRE 807 Residual Hearsay Rule

By Jonathan R. Tung, Esq. | Last updated on

The always insightful Seventh Circuit employed the rarely used Federal Rule of Evidence 807 "residual hearsay" rule recently to allow phone evidence connecting a man to the illegal sale of a gun used in a shootout with Indiana police.

The analysis, in our view, could have gone either way -- especially when looking at the authoring judge's language.

The Shootout and Phone

Parolee Marcus Hayden violated his parole and engaged in a gun battle with police in Indiana that left him dead. The police recovered Hayden's phone and, using previously recorded evidence by Hayden's probation officer, established a connection between Hayden and the defendant, Maurice Moore. Moore had previously claimed that his relationship with Hayden was only in passing. The police wanted to include the number that Hayden gave to his probation officer to establish that the two men actually had a much closer relationship and that was the background for Moore's sale of his gun to Hayden.

At the district level, the court granted Moore's motion in limine to exclude the probation report on hearsay grounds, despite the government's theories of business record exception.

Circuit's Reversal

But in an interesting twist, the Seventh Circuit reversed that decision and found that under Federal Rule of Evidence 807 -- the so called "residual hearsay" rule -- the probation report could be let in despite its hearsay status because the circumstances of Hayden's transmitting the subject phone numbers to his probation officer were consistent enough with objective reliability such that the hearsay rule ought not to apply.

Judge Rebecca Palmeyer, not typically on the Seventh Circuit bench and sitting on this case by designation, opined that Hayden's crimes were typically violent in nature and, given the facts, there was no particular motive for him to lie as when he provided the phone contact information to his probation officer. After all, he couldn't have known that his statement might end up being used against another man in a criminal investigation after his death.

It's a contentious point shining a light on the imprecise science (how's that for an oxymoron) of evidence exclusion. We are convinced that any other circuit court could have easily found that the circumstances of reliability pierced through to Hayden's past and leaned more strongly against admission. In the case of Mr. Moore, his days are about to get a bit more complicated.

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