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:
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.