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
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.
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.
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
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.
Tucker argued that since Elayyan gave a false address and
left the country after testifying, his testimony was not credible.
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
The Appellate Court found that the testimony did not
satisfy the trustworthiness requirements of FRE 804(b)(5).
However, the Appellate Court found that there was enough
evidence to convict, even without Elayyan's testimony.
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
The Court created the concept of the near miss theory
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.