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Ledford v. State6/28/1999
as practically adequate substitutes for the ordinary test, at least, in view of the necessity of the situation. . . ." 5 Wigmore, Evidence (3d ed.), p. 204, sec. 1422. Id.
The Federal Hazardous Substances Act, 15 USC 1261-1278, and the corresponding regulations, 16 CFR 1500, require labeling of substances deemed hazardous, including toluene, with the common or usual name or chemical name of the substance. Failure to provide such a label is considered misbranding and is a violation. 16 CFR 1500.3. As stated in In re Michael G., 19 Cal. App. 4th 1674, there is no incentive for the manufacturer to label a product as containing a substance when in fact it did not.
A necessity for an exception to the hearsay rule is established by the fact that an array of witnesses would be necessary to qualitatively analyze the container's contents and to establish production control and packaging in order to introduce the evidence. Particularized guarantees of trustworthiness for the information contained on these labels is established by the federal law requiring labels, the ubiquitous use of product labels in our society, and the common reliance on these labels. Thus the elements of the necessity exception to the hearsay rule are present and the can and its label should be allowed into evidence. See McKissick v. State, 263 Ga. at 189. This rule would be strictly limited to the presence of the hazardous substance, and not to its quantity or quality, and only to those substances required by law to be identified on the label.
Finally, contrary to the statement in the majority opinion, the Dissent does not rely on Commonwealth v. Harvey, 666 A2d 1108.
I am authorized to state that Chief Judge Johnson joins in this Dissent.
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