United States v. Dent 984 F.2d 1453 (1993) Dent and Tucker were pulled over by a police officer who spotted a gun in the car. The two were arrested for illegal possession of a firearm. o They were convicted felons. Tucker argued that it wasn't his car, and he had no idea there was a gun under the seat. At trial, the prosecution attempted to introduce testimony from a car salesman named Elayyan who testified to the grand jury that Tucker was with the woman who bought the car, thereby solidifying Tucker's connection to the car. o Tucker objected on the grounds that the grand jury testimony was hearsay. Elayyan was out of the country and was unable to testify at the trial. o The prosecution argued that the grand jury testimony was not hearsay because it was covered by the residual exception in FRE 804(b)(5). Btw, FRE 804(b)(5) is now known as FRE 807. The Trial Judge allowed Elayyan's statement to be admitted. o The Trial Judge found that the evidence was relevant and probative, unable to be obtained elsewhere, that Elayyan was a disinterested witness who testified under penalty of perjury, so there was no reason to doubt his words. The Trial Court found Tucker guilty of illegal possession of a firearm. He appealed on the grounds that Elayyan's statement had been improperly admitted. o Tucker argued that since Elayyan gave a false address and left the country after testifying, his testimony was not credible. o Tucker also argued that there was no corroborating evidence, other than the fact he was driving the car. The Appellate Court threw out the evidence, but upheld the conviction. o The Appellate Court found that the testimony did not Project Wonderful - Your ad here, right now, for as low as $0 satisfy the trustworthiness requirements of FRE 804(b)(5). o However, the Appellate Court found that there was enough evidence to convict, even without Elayyan's testimony. o The Court noted that since a defendant does not have the ability to cross-examine a witness at a grand jury, the testimony is generally considered hearsay under FRE 804(b)(1). The Court suggested that you should not be allowed to use the residual exception rules of FRE 804(b)(5) to admit testimony that is inadmissible under FRE 804(b)(1). Otherwise, what's the point of even having a FRE 804(b)(1) rule? o The Court created the concept of the near miss theory of admissibility. Hearsay testimony that almost meets one of the exceptions is likely to be more reliable than hearsay testimony that is not close to an exception. The fact that testimony meets the conditions of an exception indicates that Congress attempted to address the circumstances which makes similar statements inadmissible and adopted preconditions for admission of such statements. The courts are split as to what to do with 'near misses'. Most courts say that a 'near miss' should be admitted, but some courts find that a 'near miss' is less likely to be admitted because of the legislative intent of Congress in crafting the FRE.
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