Evidence - Hearsay Exemptions 803 & 804

803 Regardless of Whether D is Available

100

Rule 803(1): Present Sense Impressions 

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. 

Scope: (1) Expects immediacy – the person describing something as it happens, or immediately thereafter, and is (2) limited to the sense of the person.

The statement must be made within seconds, or a minute, of the event occurring.

200

Rule 803(2): Excited Utterance 

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. 

Scope: Statements made related to the excitement or stress causing event and must be made while the declarant is still under that excitement or stress.

(1) Statement by a declarant about a startling event, (2) made by declarant while still under the stress of that event, and (2) relates to the startling event.

300

Rule 803(3): Statements of Then Existing Mental, Emotional, or Physical Conditions 

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will. 

The statements must also be relevant, and this rule does not allow admitting a statement of memory or belief. It is intended to admit evidence of what was in a person’s head – present sense – at that moment.

Does not enable admitting statements of memory or belief.

Does not include because statements – i.e., I feel this way because…

400

Survey's Under State of Mind Exception 803(3)

Surveys, if properly conducted, poll individuals about their presently existing states of mind to establish facts about the group’s mental impressions and should therefore be admitted.

If survey results are also offered to show actual facts recalled or believed (as opposed to the mere existence of a state of mind), the evidence would not be admissible under FRE 803(3).

500

Hillmon Doctrine (Common Law)

The then-existing state of mind rule is based on this doctrine, but this doctrine is applied more broadly than the rule.

Statements by a declarant of future intention are admissible not only to prove that the declarant followed through on his intention but also to prove the future actions of the other person.

803 Regardless of Whether D is Available

100

Rule 803(4): Statements made for Medical Diagnosis 

A statement that (a) Is made for – and is reasonably pertinent to – medical diagnosis or treatment, and (b) describes medical history; past or present symptoms or sensations, their inception, or their general cause.

Includes statements made by the patient or someone else on behalf of the patient. The statements can be made to a doctor, EMT, nurse, etc. The statement need not be made by the injured person – i.e., the mother’s statement describing the cause of the child’s injury.

The statement is admissible even if made only for diagnosis and not for treatment (i.e., in the case of a doctor being retained only for testimony).

200

Dual Purpose Statements 

In sexual abuse and molestation cases, the victim’s statements often have a dual purpose: (1) medical and (2) law enforcement. 

Statements having dual purpose are admissible under statements made for the purpose of medical diagnosis or treatment only if the proponent of the statement demonstrates that:

(1) The declarant’s purpose of making the statement was to assist in provision of medical diagnosis or treatment and (2) the statements were of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional.

300

Statements of Fault & Child Abuse 

While statements relating to fault are generally not admissible under rule FRE 803(4), when a child is sexually abused, especially when the child has a familial relationship with the abuser, the identity of the perpetrator is reasonably pertinent to diagnosis and treatment, because the victim cannot be effectively treated if sent back to the abuser.

400

Rule 803(5): Recorded Recollection 

A record that: (a) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (b) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (c) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

The exception allows a witness to read a writing to the jury if:

• The witness once had personal knowledge of the writing;
• If the witness now forgets the writing and showing of the writing to the witness doesn’t jog his or her memory;
• The writing was either made by the witness or adopted by the witness;
• The writing was made when the event was fresh in their memory; and
• The witness can attest that when it was made the writing was accurate.

500

Rule 803(6): Records of a Regularly Conducted Activity 

Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event is admissible in evidence as proof of that act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of which business to make it at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.

803 Regardless of Whether D is Available

100

Rule 803(6): Records of Regularly Conducted Activity - Elements 

Requirements:

• Must be record of an act, event, condition, opinion, or diagnosis.
• Records must be the product of the regular practice of that activity.
• Record must have been made at or near the time of the event recorded. For computer records, it is the time entry that was made, not at the time of printing that counts.
• For a business record to be admissible as an exception to the hearsay rule, the declarant must either have personal knowledge of the fact stated or must have received the information from someone with personal knowledge who transmitted it in the ordinary course of business.

200

Business Records & Double Hearsay 

Business records frequently have hearsay within hearsay problems. Business records may describe both the personal knowledge of employees and also things told to employees by outsiders. The former is covered by the business record exception rule, the latter is not – it needs its own reason why it is not hearsay.

300

Rule 803(7) Absence of a Record of Regularly Conducted Activity 

Evidence that a matter is not included in a record described in paragraph (6) if:

(a) The evidence is admitted to prove that the matter did not occur or exist;

(b) a record was regularly kept for a matter of that kind; and

(c) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trust worthiness.

400

Rule 803(8): Public Records Exception 

A record or statement of public office if it sets out: (1) The office activities; (2) Is a matter observed while under a legal duty to report, but not including, a criminal case, a matter observed by law-enforcement personnel; or (3) In a civil case, or against the government in a criminal case, factual findings from a legally authorized investigation and the opponent does not show that the source of the information or other circumstances indicate a lack of trustworthiness. 

Police reports in criminal cases are not admissible under this rule but could be admissible under another rule.

Public records exceptions only cover the statements made by the government or public officials, not members of the public/private citizens. They need to be under another exception to be admissible or removed from the report.

500

Rule 803(8): Public Records Exception - Elements 

• The document comes from a public office;
• The document was prepared by public officials, though the precise identity of the official does not have to be known;
• The record must appear regular and unaltered on its face, although the original is not required;
• The record concerns data or information collected by, activities recorded, or things observed by personnel employed by the government in performance of their duties;
• The source of information and other circumstances indicate trustworthiness.

Rule 804 When D is Unavailable

100

Criteria for Unavailability

(1) Claim of privilege

(2) Refusal to testify

(3) Lack of memory

(4) Death or Illness

(5) Unable to procure testimony

200

804(b)(2): Dying Declarations 

In a prosecution for homicide, or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

Foundational Requirements:

• Was made by a declarant who is now unavailable;
• Is offered in a homicide prosecution or civil proceeding;
• Was made when the declarant believed death was imminent;
• Was about the cause or circumstances of the expected death;
• Was based on personal knowledge.

300

Rule 804(b)(3): Statement Against Interest 

A declarant against interest is defined as a statement made by a declarant who is unavailable, that is against the declarants pecuniary, proprietary, or penal interest when it was made. For a statement against penal interest to be admissible in a criminal case, it must be supported by corroborative evidence.

Foundational Requirements: To qualify as an exception to the hearsay rule, a statement against interest must mee the following requirements:

• The statement must have been against pecuniary, proprietary, or penal interest when made;
• Declarant must have had personal knowledge of the facts;
• Declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement;
• Declarant is unavailable as a witness and is not a party; and
• If offered in a criminal case, is supported by corroborating circumstances.

400

804(b)(1): Former Testimony 

Testimony that: (a) was given as a witness at trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (b) is now offered against a party who had – or in a civil case, whose predecessor in interest had – an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

• Similar motive speaks to the relevance of the issue previously testified to.
• There must be a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful.
• In a criminal case, the defendant must have been present and represented by counsel.

500

Rule 804(b)(4): Statements Offered Against Party Procuring Declarant's Unavailability 

The statements of a person (now unavailable as a witness) are admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant’s unavailability. 

Foundational Requirements: The judge must find by a preponderance of the evidence that

• The defendant engaged or acquiesced in wrongdoing;
• That was intended to render the declarant unavailable as a witness, and
• That did in fact render the declarant unavailable as a witness.

The wrongdoing must be designed to prevent the witness from testifying in a pending proceeding.

Misc.

100

Rule 612: Writing Used to Refresh a Witness's Memory 

Gives the witness time to review the subject and determine if he recalls – then takes the memory jogging device away and continues testimony. If they can’t recall even after the device used to refresh their recollection, then you need to go back to the hearsay exception rule and try to get it admitted or read into evidence. 

• Only used to jog the witness’s memory – if it doesn’t then you need to go back to the hearsay exception 803(5).
• Opposing party is entitled to have the writing or object produced or made available for inspection. They may use the item to cross-examine the witness and may offer relevant portions of it into evidence. The party using it to refresh cannot introduce it into evidence

Scope: This rule gives an adverse party certain options when a witness uses a writing to refresh memory: While testifying, or Before testifying, if the court decides that justice requires the party to have those options.

200

Rule 807: Residual Exception 

Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or Rule 804. 

(1) The statement is supported by sufficient guarantees of trustworthiness – after considering the totality of the circumstances under which it was made and evidence, if any, corroborating the statement; and

(2) It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.

Requires that advance notice be given to the opposing party.