Miss. R. Evid. 807 (2026)

Rule 807 if it is apparent that the hearsay could be admitted under a standard exception. In this way, the necessity requirement prevents the residual exception from eroding the hearsay rule or the standard exceptions. See Robinson v. State, 248 So. 3d 892, 897 (Miss. Ct. App. 2018). At the same time, considering the admissibility of the hearsay under the standard exceptions can also impact the trustworthiness inquiry. Sometimes a hearsay statement will approach, but fail to satisfy fully, the requirements of a Rule 803 or 804 exception. In those instances where evidence almost, but not quite, fits a standard exception, a court should—in addition to evaluating all relevant guarantees of trustworthiness—take into account the reasons that the hearsay misses the admissibility requirements of the standard exception. In this situation, sometimes called a “near miss,” the court should “consider why the evidence is excluded under the other hearsay exception, and any special facts and circumstances in the case relating to trustworthiness.” See Paul F. Rothstein, Fed. Rules of Evidence 3d. Ed, Rule 807, III. B. (emphasis supplied). See also United States v. Clarke, 2 F.3d 81, 84 (4th Cir. 1993) (Under the trustworthiness inquiry, “litigants and courts spend their time more productively in analyzing the trustworthiness of the particular statement, rather than debating the abstract question of “How close is too close?” to a specified hearsay exception.”)

In deciding whether the statement is supported by sufficient guarantees of trustworthiness, the court should not evaluate the credibility of any witness who relates the declarant’s hearsay statement in court. The credibility of an in-court witness does not present a hearsay question. To base admission or exclusion of a hearsay statement on the witness’s credibility would usurp the jury’s role of determining the credibility of testifying witnesses. The rule provides that the focus for trustworthiness is on circumstantial guarantees surrounding the making of the statement itself, as well as any independent evidence corroborating the statement. The credibility of the witness relating the statement is not a part of either enquiry.

The requirements previously found in Rules 803(24) and 804(b)(5) that residual hearsay must be evidence of a material fact and that its admission will best serve the purposes of these rules and the interests of justice have been deleted. These requirements have proven superfluous of Rules 102 and 401.

In providing notice under Rule 807(b), the proponent must disclose the “substance” of the statement. This term is intended to require a description that is sufficiently specific under the circumstances to allow the opponent a fair opportunity to meet the evidence. See Rule 103(a)(2) (requiring that the party making an offer of proof inform the court of the “substance” of the evidence). An opponent can seek relief from the court if additional disclosures are necessary, for example if the declarant’s address is critical and cannot be obtained by the opponent through other means. Importantly, the rule also requires that the pretrial notice be in writing, which is satisfied by notice in electronic form. See Rule 101(b)(4).

Rule 807(b) explicitly includes a good cause exception to the pretrial notice requirement, which the Mississippi Supreme Court recognized in Randall v. State, 806 So. 2d 185, 204–5 (Miss. 2001) (noting the Court has excused “technical” violations of the notice requirement). Experience under the residual exception has shown that a good cause exception is necessary in certain limited situations. For example, the proponent may not become aware of the existence of the hearsay statement until after the trial begins, or the proponent may plan to call a witness who without warning becomes unavailable during trial. When notice is provided during trial after a finding of good cause, the court may need to employ protective measures, such as a continuance, to assure that the opponent is not prejudiced. See Randall v. State, 806 So. 2d 185, 204–5 (Miss. 2001).

Of course, even when the requirements of Rule 807 are met, if the hearsay statement is offered against a defendant in a criminal case the independent requirements of the Confrontation Clauses of the United States and Mississippi Constitutions must be satisfied. See Crawford v. Washington, 124 S. Ct. 1354 (2004) (The confrontation clause forbids “admission of testimonial statements of a witness who did not appear at trial unless [the witness is] unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”); Davis v. Washington, 126 S. Ct. 2266 (2006) (Among other things, prior testimony, depositions, affidavits, and confessions are testimonial, as are forensic reports and other statements to police if “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”). See also Rubenstein v. State, 941 So. 2d 735 (Miss. 2006) (applying Rule 804(b)(5) in light of Crawford and finding statements nontestimonial); Armstead v. State, 196 So. 3d 913 (Miss. 2016) (forensic reports).

[Effective April 7, 2025.]

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION