The only witness to the accident, Gay Jackson ("Ms.
Jackson") informed the responding police officer that Commander Richmond
continued through the intersection after the light changed to red and struck
Plaintiff's car while she was making a left turn. Approximately three months
after the accident, Ms. Jackson provided a handwritten statement about her
observations of the accident to a private investigator retained by Plaintiffs'
counsel. Ms. Jackson died subsequent to providing the handwritten statement and
prior to the parties being able to take her deposition. The issue in the case
was Defendant's Motion in Limine regarding the admissibility of Ms. Jackson's
statement to the responding officer shortly after the accident and her
handwritten statement taken approximately three months after the accident.
Neither party disputed that Ms. Jackson's statements
were hearsay. Commander Richmond sought to have the Court rule that the
statements of Ms. Jackson were inadmissible hearsay not subject to any
hearsay exception. The Goodes argued that the statement should be admitted
under Federal Rule of Evidence 807, referred to as the residual exception to
the hearsay rules (hereinafter "residual exception").
There is no written opinion in this jurisdiction on the
admissibility of hearsay under the residual exception in a case similar to
this one. Therefore, the Court looked to the Fourth Circuit, which has
instructed that in considering whether the statements satisfy the residual
exception to the hearsay rules, litigants should focus on "whether the
statement has ‘equivalent circumstantial guarantees of trustworthiness'" and
not on how close the statements come to falling under another hearsay
exception. The Court then went on to recognize general principals on the
application of the residual exception for the Court to consider.
First, the residual exception should be permitted "only
in exceptional circumstances." The death of a witness does not alone qualify
as an exceptional circumstance. Second, courts are to look at the totality
of the circumstances surrounding the making of a statement and deciding
whether the statement has sufficient guarantees of trustworthiness.
The Fourth Circuit has clearly recognized a few
circumstances in which a declarant's statements generally demonstrate the
requisite circumstantial guarantees of trustworthiness equivalent to the
other hearsay exceptions, namely, statements made under oath, grand jury
testimony, and plea agreements. The Defendant urged the Court to find that
these limited examples are the only situations in which there are sufficient
circumstantial guarantees of trustworthiness to admit the statements under
the residual exception. Plaintiffs, however, argued that other factors
should weigh in the Court's consideration of whether the circumstances
involved demonstrate equivalent circumstantial guarantees of trustworthiness
and cited cases from courts in other jurisdictions. For example, the Third
Circuit has articulated twelve factors bearing on such a determination.
The Court agreed with Plaintiffs that although case law
in this jurisdiction has not explicitly listed the factors that a court may
consider in determining a trustworthiness of a hearsay statement under the
residual exception, there are no cases indicating that the Fourth Circuit
intends to only apply the exception in the limited circumstances that
Defendant argued. In fact, the Fourth Circuit has rejected a narrower view
of the residual exception.
For purposes of resolving the Motion in
Limine, the
Court presumed that Ms. Jackson was an independent witness without a motive
to fabricate her statement to the responding officer and that she provided
her statement as to what she personally observed shortly after the accident
occurred, which, without contrary evidence, convinced the Court that her
statement contained in the motor vehicle report, satisfied the
circumstantial guarantees of trustworthiness. Additionally, the Court felt
compelled to admit the statement because Ms. Jackson was the only identified
witness of the accident and the statement addressed a material fact in the
case, specifically, the color of the traffic signal at the time of the
incident, which neither party appeared able to offer more probative evidence
of other than their conflicting and self-serving testimony.
The handwritten statement that Ms. Jackson provided to
Plaintiffs' private investigator nearly three months after the accident did
not, however, possess equivalent circumstantial guarantees of
trustworthiness. Specifically, the statement came three months after the
accident and was given at the request of Plaintiffs' private investigator in
preparation for litigation. Furthermore, the Defendant did not have the
opportunity to question Ms. Jackson. Thus, the handwritten statement by Ms.
Jackson was not admitted into evidence.
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