she cannot recall them -- the only other source of this evidence is Agent Balen.
The third factor -- serving the purposes of the rules and the interests of justice -- is so abstruse in formulation as to constitute little guidance for the court. Perhaps a better statement of this consideration is that provided by Judge Posner: that the rules on hearsay should be read to exclude unreliable hearsay but to admit reliable hearsay. Thus, on Judge Posner's proposition, the third factor may, in part, be collapsed into what is in fact a threshold inquiry for application of Rule 804(23): the indicia of trustworthiness of the statements offered.
For these purposes, the "trustworthiness" of an out-of-court statement is established "if the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility . . . ." Idaho v. Wright, U.S. , 110 S. Ct. 3139, 3149, 111 L. Ed. 2d 638 (1990). In this regard, the government invites the court to consider Drake's statements to Agent Balen against the analytical background of one of the "firmly rooted" hearsay exceptions -- Rule 803(5). That rule provides for the admission of:
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
The government argues that, had the statements in the FBI reports been "adopted" by Drake, the content of these reports would come squarely within Rule 803(5) and would be admissible. Thus, the government argues, all the indicia of trustworthiness attendant to a statement admitted under Rule 803(5) are present in this case: The only difference is the matter of adoption -- a matter which goes not to the trustworthiness of the statement, the government asserts, but to the accuracy of Agent Balen's transcriptions.
On this point, the argument of the government is not entirely persuasive: The reliability and the accuracy of Agent Balen's transcriptions do implicate the trustworthiness of the statements that the government will seek to admit. Although the government is correct that the defendants will have at trial an adequate opportunity to cross-examine Agent Balen about the accuracy of his reports, it is plain that -- as records of Drake's own recollections -- those reports would be still more trustworthy if Drake had "signed off" on their content as true and accurate. Thus, the trustworthiness of these statements will have to be located in part elsewhere than in the standards of Rule 803(5).
Rather, the relevant indices of reliability include, as the government correctly argues: the fact that the interviews between Drake and Agent Balen were conducted within a few days and a few weeks of DiBernardo's disappearance; that the statements (which were voluntarily given by Drake) are very specific; that the statements were -- on Drake's own account -- intended to be helpful to the FBI in locating her boyfriend (whom she believed to be alive); and that she has subsequently testified that she was "sure" that the content of her remarks to Agent Balen was truthful. See, e.g., United States v. Lyon, 567 F.2d 777, 784 (8th Cir. 1977), cert. denied, 435 U.S. 918, 55 L. Ed. 2d 510, 98 S. Ct. 1476 (1978) (trustworthiness of FBI agent's transcribed interview with witness "guaranteed by [agent's] detailed testimony about how he took [the witness'] statement and transcribed it"); United States v. Obayagbona, 627 F. Supp. 329, 340 (E.D.N.Y. 1985) (Weinstein, C.J.) (contemporaneous recording serves as guarantee of trustworthiness under Rule 803(24)). Compare United States v. Romo, 914 F.2d 889, 896 (7th Cir. 1990), cert. denied, U.S. , 111 S. Ct. 1078, 112 L. Ed. 2d 1183 (1991) (offhand, conclusory remark in police report that individual "deals in stolen property" found not trustworthy).
Taken together, these face "render the declarant [that is, Drake] particularly worthy of belief." Wright, 110 S. Ct. at 3149. The recency of her statements after the events that they concern establishes that her recollection of those events was fresh when she spoke with Agent Balen. The fact that her statements were voluntarily made to the FBI in an effort to help that organization locate her missing boyfriend demonstrates not only the absence of any motive for fabrication but also a compelling reason for candor. Finally, that Drake has subsequently testified that she is certain that any statements she made to Agent Balen were true removes any remaining doubt as to the honesty with which she proceeded in those interviews. These indices satisfy the court that Drake's "truthfulness is so clear . . . that the test of cross-examination would be of marginal utility" and, therefore, that the statements sought to be offered by the government are sufficiently trustworthy that they may be admitted under Rule 803(24). Further, such "reliable hearsay" has, of course, the effect of promoting the truth-seeking function of a criminal trial and, therefore, ought to be presented to the finders of facts in this matter.
Finally, Rule 803(24) requires advance notice to the adverse party of the intention of the proponent to offer the statement into evidence:
[A] statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the defendant.
The purpose of this notice requirement in the "catch-all" hearsay exception is to allow the party against whom the statement is offered an adequate opportunity in which "to attack the trustworthiness of" the statement. Piva v. Xerox Corp., 654 F.2d 591, 596 (9th Cir. 1981). And, although other circuits have permitted a proponent to offer a statement under Rule 803(24) even when the proponent did not give pretrial notice of his intention to offer the statement -- see, for example, Piva, 654 F.2d at 596 -- the Second Circuit has stood by the literal meaning of Rule 803(24). United States v. Ruffin, 575 F.2d 346, 358 (2d Cir. 1978) (Rule 803(24) "can be utilized only if notice of an intention to rely upon it is given in advance of trial.") Accordingly, in order to offer Drake's statements under that "catch-all" exception, the government must have put the defendants on notice prior to the beginning of this trial that they would seek to introduce her statements to Agent Balen into evidence. But, as noted above, the government informed the defendants in December of 1991 -- approximately one month before jury selection in this trial began -- that it intended to introduce Drake's statements as an exception to the general rule that excludes hearsay. Such early notification not only satisfies the somewhat arbitrary deadline of Rule 803(24) and of Ruffin, but, more importantly, it gave the defendants an adequate period of time in which "to attack the trustworthiness" of Drake's statements. Accordingly, the final requirement of Rule 803(24) -- timely notification of intention to offer the statement in question -- has been discharged by the government.
For the reasons set forth above, the statements of Nancy Drake to FBI Agent Balen are admissible under Federal Rule of Evidence 803(24).
Dated: Brooklyn, New York
March 9th, 1992
I. Leo Glasser, U.S. D. J.
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