In a series of posts, I’ve been covering some of the hearsay exceptions that arise most commonly in criminal cases. The residual exceptions make that list. Here is your primer on those exceptions. Generally. Even if an out-of-court statement doesn’t fall within a specific hearsay exception, it still may be admissible under the residual exceptions to the hearsay rule. The rules contain two identical residual exceptions (sometimes called “catch all” exceptions). The first is in Rule 803(24), for which availability is immaterial; the second is in Rule 804(b)(5), which requires unavailability. The requirements for the two exceptions are virtually identical, except that decisions have “noted that the inquiry into the trustworthiness and probative value of the declaration is less strenuous when the declarant is unavailable.” 2 Brandis & Broun on North Carolina Evidence at 937. Six-Step Analysis. Before admitting evidence pursuant to the residual exceptions, the trial judge must determine that: (1) proper written notice was given to the adverse party; (2) the statement is not specifically covered by any other hearsay exception; (3) the statement possesses circumstantial guarantees of trustworthiness; (4) the evidence is offered regarding a material fact; (5) the evidence is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (6) the evidence will best serve the general purposes of the rules of evidence and the interests of justice. State v. Triplett, 316 N.C. 1, 7-9 (1986) (adopting the six-part test for the [...]
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