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Hearsay "Residual Exception"

Tutorial on the crimes of stalking and harassment for New Mexico judges

The "Residual Exception" Rule

Rule 11-807 is the "residual exception" to the general prohibition against the admission of hearsay. This rule provides that hearsay not specifically covered by the exceptions in Rules 11-803 and 11-804, but which has the equivalent circumstantial guarantees of trustworthiness, is not excluded as hearsay if the court determines that:

  • the hearsay statement is offered as evidence of a material fact;
  • the statement is more probative on the issue for which it is offered than any other evidence the party introducing the hearsay can obtain by reasonable efforts; and
  • the general purposes of the rules of evidence and the interests of justice will be served by the admission of the hearsay.

In order for a party to rely on Rule 11-807 for the admission of hearsay, it must advise the opposing party sufficiently in advance of the trial or hearing about the statement and the name and address of the declarant. See Rule 11-807(C). This is to allow the opposing party time to prepare its response to arguments in support of the proposed admission. The "residual exception" rule is essentially a recognition that the other rules dealing with hearsay exceptions could not reasonably cover and address each and every type of hearsay evidence and the factual and legal situations under which a party might argue for its admission.