Residual Hearsay - Used Very Exceptional Circumstances

In felon in possession of a firearm case, excluding videotaped interviews of prosecution witnesses that defendant offered for purpose of impeaching their testimony against him and the proffered evidence was not admissible under the FRE 807 residual hearsay exception, which was intended to be "used very rarely, and only in exceptional circumstances," in United States v. Ingram, 501 F.3d 963 (8th Cir. Sept. 6, 2007) (No. 06-3915), cert. granted and judgment vacated, 129 S.Ct. 991 (2009) (in light of Chambers v. United States, 129 S.Ct. 687 (2009) that a walkaway escape was not a violent felony for sentencing purposes)

Under FRE 807 hearsay is admissible under a residual or catchall exception to the hearsay rule. It recognizes the admissibility to trustworthy statements that are “not specifically covered by” other exceptions. See United States v. Peneaux, 432 F.3d 882, 893 (8th Cir. 2005) (“Congress added Rule 803(24), the predecessor to Rule 807, because it could not foresee every possible evidentiary scenario.”) Although the Ingram case was later remanded by the Supreme Court in light of Chambers v. United States, 129 S.Ct. 687 (2009) (crimes “characterized by a failure to present oneself for detention on a specified occasion” were not “violent felon[ies]” under the Armed Career Criminal Act (ACCA)). This remand did not affect the defendant's conviction as a felon in possession of a firearm. The case is interesting from an evidence stand point, however, because it suggests use of the residual hearsay exception has very limiting restraints.

In the case, defendant Ingram was convicted of being a felon in possession of a firearm after a trial in which witnesses testified that they observed him wrap a gun in a large white t-shirt and put it in the bed of a red pickup truck. In addition, police officers testified that they found the gun in the truck, wrapped in an extra large t-shirt that was likely to fit the defendant. Witnesses also testified that the defendant possessed a gun earlier in the day. Several witnesses indicated that the defendant was angry with one of the other witnesses “because he had refused to commit a robbery with Ingram” and that this caused the defendant to display the gun and threaten the witnesses. One witness gave evidence that she saw the defendant loading the gun with ammunition in the parking lot near her residence and that the defendant threatened to kill her if she “snitched” on him. When the defendant tried to enter that witness’s residence, she called the police who came and apprehended the defendant after witnesses’ identified the defendant. Ingram, 502 F.3d at 966.

At trial it appeared that the defendant sought to undermine the credibility of the prosecution witnesses. The defendant suggested the witness's testimony was replete with factual inconsistencies, as well as that many witnesses had the motivation to lie. In support of this contention, the defendant sought to introduce a videotape of interviews conducted with the witnesses in order to impeach their testimony.

The defense proffer of the police videotape would as for:

...impeach certain witnesses for the prosecution.... The videotapes at issue were made by law enforcement on the day after Ingram's arrest. Ingram claims that they are the best evidence of what the witnesses actually saw, as they record statements made before the witnesses had an opportunity to “polish” their stories and potentially forget details of what occurred. Specifically, for example, he points to Zimmerman's trial testimony, and argues that she minimized her initial evasiveness when responding to investigators' questions regarding the identity of “Daniel.” He contends that the videotaped interviews should have been admitted as impeachment material under the residual exception to the rule prohibiting hearsay. See Fed.R.Evid. 807.

Ingram, 502 F.3d at 967.

The defendant was convicted and appealed, contending the tape was admissible as “impeachment material under the residual hearsay exception.” The Eighth Circuit rejected the defense argument for admission of the videotape, providing three reasons supporting this action.

First, the circuit implied that the tape did not meet the requirements that FRE 807 evidence be “used very rarely, and only in exceptional circumstances.” [Ingram, 502 F.3d at 967 (quoting United States v. Peneaux, 432 F.3d 882, 893 (8th Cir. 2005) (internal quotation omitted), cert. denied, 127 S.Ct. 42 (2006))

Second, even had there been an exceptional circumstance in the case, FRE 807 would not apply because it concerns “only to evidence that is offered for the truth of the matter asserted” and not for impeachment purposes. “Extrinsic evidence of a witness's prior statement admitted merely to impeach the credibility of a witness's in-court testimony,” explained the circuit “is governed by Federal Rule of Evidence 613, not Rule 807.” Ingram, 502 F.3d at 967.

Finally, the circuit implied that if it was an error, the error was harmless. The circuit pointed to the trial court allowing the defendant “wide latitude in questioning the investigator about the videotaped interviews. He successfully brought out inconsistencies in Angel's memory of what Ingram had been wearing and what kind of gun he used, the fact that Angel could not see well at the time because she was not wearing her glasses, and Zimmerman's evasiveness on the identity of “Daniel.” Ingram has failed to identify any evidence from the videotapes that he was unable to put before the jury through his examination of the investigator or cross-examination of the witnesses who had been interviewed on videotape. Given his opportunity to present the evidence through these avenues, we conclude that the district court did not otherwise abuse its discretion.” Ingram, 502 F.3d at 967.

Federal Rules of Evidence