“There is no procedural canon against the exercise of common sense in deciding the admissibility of hearsay evidence”
One of the most important amendments to the 2019 Philippine Rules on Evidence was the introduction of residual exception as an additional exception to the Hearsay Rule.
The whole point of having a “residual” exception is that it may serve to admit hearsay when no other exception suits the purpose (Evidence, George Fisher, Third Edition).
The residual exception provision adopted by the Philippines is the amended Rule 807 of the United States (US), which took effect in 1997.
Under this US Rule, hearsay evidence may be allowed only if it was offered to prove a “material fact,” is supported by “equivalent guarantees of trustworthiness,” will serve the purpose of the Rules and the interests of justice, and gives reasonable notice of the intent to offer the statement to the adverse party.
These were slightly tweaked to conform to the Philippine experience.
However, the US amended its Rule 807, with the amendments taking effect on December 1, 2019.
The new Rule removed the requirement that the admitted evidence proves a “material fact” and that it “will serve the purpose of the Rules and the interest of justice.”
It also changed the yardstick of trustworthiness from “equivalent guarantees” to “sufficient guarantees,” and expressly required that the notice must be in writing and should describe the substance of the statement.
Some opine that “[a]lthough the [US] advisory committee notes … that the changes are not intended to broaden the scope of admissible hearsay evidence … the new language will undoubtedly serve to broaden the scope of admissible hearsay evidence” (Morgan J. Kleoppel, Amendment to Residual Exception).
Obviously, the old Rule 807 adopted by the Philippines is narrower in application than the new Rule 807.
As it was in the US in the mid-1970s and early 1980s when the application of residual exception was conservative in most courts (Evidentiary Foundations, Edward J. Imwinkelried), the author foresees that Philippine courts will also be conservative.
However, as its application progresses with the guidance of the Supreme Court, courts will be more receptive to its use.
The Dallas County v. Commercial Union Assurance Co. case is “universally acknowledged to be the direct antecedent of the catch-all philosophy” that lies behind the provision of residual exception to the hearsay rule (Evidence, George Fisher, Third Edition citing 14 T.M. COOLEY L. REV. 1, 5 [1997]).
The question raised was the admissibility of a newspaper article in the Morning Times showing that the Dallas County Courthouse in Selma, Alabama, was damaged by fire in 1901.
The Dallas County case involved the collapse of the clock tower of the Dallas County Court House at Selma on July 7, 1957.
The damage was estimated to exceed $100,000, and an examination of the tower debris showed the presence of charcoal and charred timbers (286 F.2d 388, 5th Cir. 1961).
In the opinion of the engineers and investigators, the char was a result of a fire in the courthouse tower and roof that must have occurred many, many years before July 2, 1957.
For this reason, the insurers denied liability. Hence, Dallas County sued the insurers (286 F.2d 388, 5th Cir. 1961).
During the trial the defendants introduced a copy of the Morning Times of Selma for June 9, 1901. This issue carried an unsigned article describing the fire that occurred in the morning of June 9, 1901, while the courthouse was still under construction. The article stated, in part:
“The unfinished dome of the County’s new courthouse was in flames at the top, and … soon fell in. The fire was soon under control and the main building was saved.”
The insurers did not contend that the collapse of the tower resulted from the charred (and therefore brittle) timber used in the repair of the building after the fire.
They offered the newspaper account to show that there had been a fire long before 1957 that would account for the charred timber in the clock tower (286 F.2d 388, 5th Cir. 1961).
The defendants called to the stand the editor of the Selma-Times Journal who testified that the publishing company maintains archives of the published issues of the Times-Journal and the Morning Times, its predecessor, and that the archives contain the issue of the Morning Times of Selma for June 9, 1901 (286 F.2d 388, 5th Cir. 1961).
The plaintiff objected that the newspaper article was hearsay; that it was not a business record nor an ancient document, and was not admissible under any recognized exception to the hearsay doctrine.
The Judge admitted the newspaper as part of the records of the Selma Times-Journal (286 F.2d 388, 5th Cir. 1961).
In the Anglo-American adversary system of law, courts usually will not admit evidence unless its accuracy and trustworthiness may be tested by cross-examination.
Here, therefore, the plaintiff argues that the newspaper should not be admitted: “You cannot cross-examine a newspaper” (286 F.2d 388, 5th Cir. 1961).
The appellate, court in affirming the findings of the trial court, relied heavily on Wigmore on Evidence, particularly on his analysis that “requisites of an exception to the hearsay rule are necessity and circumstantial guaranty of trustworthiness” (286 F.2d 388, 5th Cir. 1961).
As for necessity, Wigmore points out that this requisite means that unless the hearsay statement is admitted, the facts it brings out may otherwise be lost, either because the person whose assertion is offered may be dead or unavailable, or because the assertion is of such a nature that one could not expect to obtain evidence of the same value from the same person or from other sources (Wigmore 1421, 3d. ed. cited in 286 F.2d 388, 5th Cir. 1961).
The fire referred to in the newspaper account occurred fifty-eight years before the trial of the case.
Any witness who saw that fire with sufficient understanding to observe it and describe it accurately, would have been older than a young child at the time of the fire (286 F.2d 388, 5th Cir. 1961).
It would have been burdensome, but not impossible, for the defendant to have discovered the name of the author of the article and, perhaps to have found an eyewitness to the fire.
But it is improbable that any witness could have been found whose recollection would have been accurate at the time of the trial of the case (286 F.2d 388, 5th Cir. 1961).
The appellate court declared that the rationale behind the “ancient documents” exception is applicable here: after a long lapse of time, ordinary evidence requiring signatures or handwriting is virtually unavailable, and it is therefore permissible to resort to circumstantial evidence (286 F.2d 388, 5th Cir. 1961).
In the case of Montgomery County v. Farmers & Citizens Savings Bank Co. (Ohio Com. PI. 1953), the court in the latter case admitted 80-year old newspapers as ancient documents.
These contained notices of advertisements for bids relating to the town hall, which the court declared as ancient: “Such exhibits, by reason of age, alone, and unquestioned authenticity qualify as ancient documents.” Similarly, the Selma Times-Journal article is almost two generations old (286 F.2d 388, 5th Cir. 1961).
The second requisite for admission of hearsay is trustworthiness.
According to Wigmore, there are circumstances when hearsay is trustworthy enough to serve as a practical substitute for cross-examination.
“Where the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed;… where the statement was made under conditions of publicity that an error, if it had occurred, would have been probably detected and corrected” (5 Wigmore, Evidence 1422, 3d ed., cited in 286 F.2d 388, 5th Cir. 1961).
There is no procedural canon against the exercise of common sense in deciding the admissibility of hearsay evidence.
In 1901, Selma, Alabama, was a small town. It is inconceivable to us that a newspaper reporter in a small town would report there was a fire in the dome of the new courthouse if there had been no fire.
He is without motive to falsify, and a false report would have subjected the newspaper and him to embarrassment in the community (286 F.2d 388, 5th Cir. 1961).
To some, residual exception may be too broad in its application. However, it is an effective evidentiary tool to access evidence which is hard to find and prove, since at the end of the day, the objective of every litigation is to ascertain the truth.