Creating a "Catch All" Exception to the Hearsay Rule in South Carolina
Updated: Sep 20, 2019
Professor Miller has written several great posts about the proposed amendment to Federal Rule of Evidence 807. This is the "catch all" exception to hearsay:
For an explanation of the proposed changes and their benefits, you can read three of Miller's posts here, here, and here.
These proposed changes would go into effect this December, but what about the S.C. Rules of Evidence? Well, we don't have a residual exception to the hearsay rule:
A Proposed Change for S.C.
Here is a quick proposal that I think might work:
I added the Crawford language because I think that will always be an issue with a residual exception to hearsay (even though Sixth Amendment Confrontation Clause always comes first in any analysis). I think it just helps codify the Supreme Court rule and ensure that the judges and parties apply it. I also added the signal "see" so that it is clear to the parties that the rule is based completely on Crawford and Clark.
I also added a more concrete time frame to the notice standard. What is "reasonable"? And because the rule allows for a judge to make the final decision, I think it would be more helpful to set the standard for the parties (whether it is 10 days, 5 days, or 2 days, I think there should be a number).
This was just a quick revision, so I could be missing a big piece (or butchering the Crawford analysis). But who knows, maybe one day we'll get a residual exception to the rules.