Miss. R. Evid. 806 (2026)

Rule 806. Attacking and Supporting the Declarant’s Credibility When a hearsay statement – or a statement described in Rule 801(d)(2)(C), (D), or (E) – has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

[Restyled effective July 1, 2016.]

Advisory Committee Historical Note

Effective July 1, 2016, the Rule was amended as part of the general restyling of the Evidence Rules.

Effective June 16, 2016, the “Comment” was retitled “Advisory Committee Note.”

Advisory Committee Note

The language of Rule 806 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Rule 806 permits the impeachment and rehabilitation of a hearsay declarant. The use of inconsistent statements to impeach the declarant is not limited to prior inconsistent statements. Under the rule the inconsistent statements may be statements made subsequent to the out-of-court declaration at hand.

[“Advisory Committee Note” substituted for “Comment,” effective June 16, 2016; amended July 1, 2016, to note restyling.]

Rule 807. Residual Exception (a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804: (1) the statement is supported by sufficient guarantees of trustworthiness— after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and (2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.

(b) Notice. The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement—including its substance and the declarant’s name—so that the party has a fair opportunity to meet it. The notice must be provided in writing before the trial or hearing—or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.

[Effective April 7, 2025.]

Advisory Committee Note

Modeled on federal practice, Rule 807 combines, transfers, and amends the contents of former Rules 803(24) and 804(b)(5). Rule 807 thus promotes uniform interpretation and addresses a number of recurring issues that courts have encountered in applying the residual exceptions.

Rule 807 reflects the realization that the law is not stagnant. As the FRE Advisory Committee Note indicates, it would be presumptuous to assume that the contemporary legal community has enumerated every single hearsay exception which possibly could exist. The exceptions are not a closed system, and Rule 807 allows for the future development of the law when the guarantees of reliability and trustworthiness can be found. While this rule allows for judicial discretion, it does not permit an unfettered discretion that could ultimately devour the hearsay rule. Before admitting statements under this rule, the judge must make a finding that the

statements being offered are sufficiently trustworthy and reliable. See Cummins v. State, 515 So. 2d 869 (Miss. 1987), overruled on other grounds by Morgan v. State, 703 So. 2d 832 (Miss. 1997). One of the clearest examples of the circumstances meeting the criteria of Rule 807 is found in Dallas County v. Commercial Union Assur. Co., 286 F .2d 388 (5th Cir. 1961).

Rule 807 directs a court to determine whether the hearsay is supported by sufficient guarantees of trustworthiness, rather than decide whether the proffered hearsay carries “equivalent” circumstantial guarantees of trustworthiness as required previously by Rules 803(24) and 804(b)(5). The “equivalence” standard was difficult to apply, given the different types of guarantees of reliability, of varying strength, found among the standard exceptions. Nor did the equivalence standard serve to guide a court’s discretion, both because the court was free to choose among a spectrum of exceptions for comparison and because some trustworthy statements cannot be compared usefully to any standard exception. As with any hearsay statement offered under an exception, the court’s threshold finding under Rule 104(a) that admissibility requirements are met merely means that the jury may consider the statement—not that it must assume the statement to be true.

Under Rule 807(a)(1), trustworthiness requires an evaluation of two factors: (1) circumstantial guarantees surrounding the making of the statement; and (2) corroborating evidence. Regarding the making of the statement, the court should weigh “whether the statement was written or oral, the character of the statement, the relationship of the parties, the motivation of the declarant in making the statement, and the circumstance under which the statement was made.” Cummins v. State, 515 So. 2d 869, 874 (Miss. 1987) (citing Weinstein, Evidence, Vol. 4, p. 803 (1985)), overruled on other grounds by Morgan v. State, 703 So. 2d 832 (Miss. 1997). The factors detailed in the Advisory Committee Note to the tender years exception in MRE 803(25) are instructive, as they were first developed as trustworthiness factors under the residual exceptions. See also Graham, 8 Handbook of Federal Evidence §807:1 (2019) (“Relevant factors bearing upon the ascertainment of trustworthiness include (1) the declarant’s partiality, i.e., interest, bias, corruption, or coercion, (2) the presence or absence of time to fabricate, (3) suggestiveness brought on by the use of leading questions, and (4) whether the declarant has ever recanted or reaffirmed the statement.”) (citations omitted); Martin, Saltzburg, & Capra, 4 Federal Rules of Evidence Manual, §807.02 (2019) (detailing thirteen “standard factors all courts consider in evaluating the trustworthiness of a declarant’s statement under the residual exception”).

Rule 807(a)(1) specifically requires the court to take corroborating evidence into account. The rule recognizes that the existence or absence of corroboration is relevant to—but not dispositive of—whether a statement should be admissible

under this exception. Of course, the court must consider not merely whether corroborating evidence exists but also the strength and quality of that evidence. See Holliman v. State, 178 So. 3d 689, 704 (Miss. 2015) (deceased victim’s statement that defendant had locked her in a closet during a fight was trustworthy because another witness testified that she saw it happen); Randall v. State, 806 So. 2d 185, 206 (Miss. 2001) (noting the proffered statement “dove-tailed” with other evidence).

Rule 807(a)(2) requires the proponent to show that the hearsay statement is more probative than any other evidence that the proponent can reasonably obtain. This works to prohibit parties from proceeding directly to the residual exception without first considering the admissibility of the hearsay under Rules 803 and 804. While a court is not required to make a finding that the evidence is not admissible under a Rule 803 or 804 exception, the proponent cannot seek admission under