M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Rules 803 and 804, N.D.R.Ev.; Hearsay Exceptions
Rules 803 and 804, N.D.R.Ev., contain hearsay exceptions patterned after Rules 803 and 804, Fed.R.Ev. Effective December 1, 1997, the federal rules were amended to transfer the catch-all hearsay exception for statements having comparable circumstantial guarantees of trustworthiness to a new Rule 807. The purpose of the federal amendments is simply to facilitate new amendments to Rules 803 and 804.
A new hearsay exception has also been added to the federal rules. "Rule 804(b)(6) has been added to provide that a party forfeits the right to object on hearsay grounds to the admission of a declarant's prior statement when the party's deliberate wrongdoing or acquiescence therein procured the unavailability of the declarant as a witness." See 1997 Committee Note, Rule 804, Fed.R.Ev.
At the last meeting, the Committee voted on whether to petition the Supreme Court for adoption of the new hearsay exception found in Rule 804 (b)(6), Fed.R.Ev. The Committee approved the amendment by a vote of nine to six. The proposal is back on the agenda because it was not approved by a two-thirds vote.
Does the Committee want to follow the federal amendments by adopting a hearsay exception providing for "forfeiture by wrongdoing," and by transferring the catch-all hearsay exceptions to a new Rule 807?