FEDERAL RULES OF EVIDENCE CHART - RULE 803 HEARSAY EXCEPTIONS AVAILABILITY OF DECLARANT IMMATERIAL

Rule 803(1)

Description Present Sense Impression.

Definition A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

Comments

Cases Boothe v. State, 306 Md. 313 (1986) Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503 (1989) State v. Jones, 532 A.2d 169 (1987)

803(2)

Excited Utterance.

803(3)

Then-Existing Mental, Emotional, Or Physical Condition.

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. A statement of the declarants then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarants will.

Truck Insurance Exchange v. Michling, 364 S.W.2d 172 (1963)

Cop wants to testify that victim said I believe Al Capone did it. Not admissible under this rule because the rule clearly says you cannot use the statement for statement of memory or belief to prove the fact remembered Farmer deeds farm to niece instead of daughter. Daughter sues to get the farm. Admissible under this rule because it shows his state of mind If he said it before and after making out his will, it is still admissible and actually shows that his SOM lasted for a period of days spanning the execution of his will. If he said yesterday I gave her the farm it is not LOL because it was said after-the-fact. Not admissible under this rule either. BUT, it would be a statement against interest.

Adkins v. Brett, 184 Cal. 252 (1920)

Mutual Life Insurance Co. of New York v. Hillmon, 145 U.S. 285 (1892) Shepard v. United States, 290 U.S. 96 (1933) United States v. Pheaster, 544 F.2d 353 (1976) Note: House Committee on Judiciary notes state that the legislative intent is to limit the Hillmon doctrine to the statements proving future conduct of the declarant, not of third parties.

803(4)

Statements For Purposes Of Medical Diagnosis Or Treatment

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

If parents or other family members make statement for diagnosis to the doctor it will be admissible to the extent that the information given is relevant to the medical diagnosis. So, My kid was hit by a car driving quickly which ran a red light. The quickly and hit are probably in but the running of the red light is not likely relevant to medical diagnosis. In child abuse, question is whether the identity of the abuser is relevant to medical treatment? Argument is that it is necessary for psychological treatment even if not for medical treatment.

FEDERAL RULES OF EVIDENCE CHART - RULE 803 HEARSAY EXCEPTIONS AVAILABILITY OF DECLARANT IMMATERIAL
Rule 803(5) Description Recorded Recollection. Definition 1. A memorandum or record concerning a matter 2. about which a witness once had knowledge 3. but now has insufficient recollection 4. to enable the witness to testify fully and accurately, 5. 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. 6. 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. 7. Can be shown by the testimony of the custodian or other qualified witness or by certification that complies with 902(11-12) or other statute permitting certification. 1. A memorandum, report, record, or data compilation, in any form, 2. of acts, events, conditions, opinions, or diagnoses, 3. made at or near the time 4. by, or from information transmitted by, a person with knowledge, 5. if kept in the course of regularly conducted business activity, and if 6. it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, 7. all as shown by the testimony of the custodian or other qualified witness, 8. or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, 9. unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. 10. The term business as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Comments Cases Baker v. State, 35 Md.App. 593 (1977) Adams v. The New York Central Railroad Co., 1961

803(6)

Records Of Regularly Conducted Activity.

Johnson v. Lutz, 253 N.Y. 124 (1930) Hypotheticals Kelly v. Wasserman, (1959) United States v. Duncan, 919 F.2d 981 (1990) Williams v. Alexander, 309 N.Y. 283 (1955) Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627 (2d Cir.1994) Palmer v. Hoffman, 318 U.S. 109 (1943) Lewis v. Baker, 526 F.2d (1975) Yates v. Bair Transport, Inc., 249 F.Supp. 681 (1965)

FEDERAL RULES OF EVIDENCE CHART - RULE 803 HEARSAY EXCEPTIONS AVAILABILITY OF DECLARANT IMMATERIAL
Rule 803(7) Description Absence Of Entry In Records Kept In Accordance With The Provisions Of Paragraph (6). Definition Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the non-occurrence or non-existence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth: A. The activities of the office or agency; or B. Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel; or C. In civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate a lack of trustworthiness. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. To prove the absence of a record, report, statement, or data compilation, in any form, or the non-occurrence or non-existence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. Comments Cases

803(8)

Public Records And Reports.

Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) United States v. Oates, 560 F.2d 45 (1977) United States v Grady, 544 F.2d 598 (1976)

803(9)

Records Of Vital Statistics.

803(10)

Absence Of Public Record Or Entry.

FEDERAL RULES OF EVIDENCE CHART - RULE 803 HEARSAY EXCEPTIONS AVAILABILITY OF DECLARANT IMMATERIAL
Rule 803(11) Description Records of Religious Organizations. Definition Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones or the like. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. Statements in a document in existence twenty years or more the authenticity of which is established. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. Comments Cases

803(12)

Marriage, Baptismal, And Similar Certificates.

803(13)

Family Records.

803(14)

Records of Documents Affecting An Interest In Property.

803(15)

Statements In Documents Affecting An Interest In Property.

803(16)

Statements In Ancient Documents. Market Reports, Commercial Publications.

803(17)

FEDERAL RULES OF EVIDENCE CHART - RULE 803 HEARSAY EXCEPTIONS AVAILABILITY OF DECLARANT IMMATERIAL
Rule 803(18) Description Learned Treatises. Definition To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. Reputation among members of a persons family by blood, adoption, or marriage, or among a persons associates, or in the community, concerning a persons birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located. Reputation of a persons character among associates or in the community. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation. Comments Cases

803(19)

Reputation Concerning Personal or Family History.

803(20)

Reputation concerning boundaries or general history.

803(21) 803(22)

Reputation as to character. Judgment of previous conviction.

803(23)

Judgment as to personal, family, or general history, or boundaries.

FEDERAL RULES OF EVIDENCE CHART - RULE 803 HEARSAY EXCEPTIONS AVAILABILITY OF DECLARANT IMMATERIAL
Rule 807 Description Residual Exception Definition A statement not specifically covered by Rule 803 or 804, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule if the court determines that: (a) The statement is offered as evidence of a material fact; (b) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (c) The general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponenet 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 proponents intention to offer the statement and the particulars of it, including the anme and address of the declarant. Comments Cases

FEDERAL RULES OF EVIDENCE CHART - RULE 803 HEARSAY EXCEPTIONS AVAILABILITY OF DECLARANT IMMATERIAL
Rule Confrontati on Clause Description Confrontation Clause Rule Definition Confrontation Clause Analysis Roberts Two-Pronged Test 1. Unavailability Required Unless: a. Non replication of credibility (White, Wright, & Inadi b. Cross-examination would have marginal utility Wright c. Exceptions to Availability Requirement: i. Co-conspirator Inadi ii. Excited utterance White? iii. Statements for Medical Diagnosis White? 2. Indicia of Reliability must be shown a. Unless the statement is within a firmly rooted exception to the hearsay rule, in which case, without more, there is indicia of reliability. The firmly rooted exceptions recognized by the Court: i. Dying Declarations ii. Prior Testimony iii. Co-conspirator Admissions iv. Excited Utterances v. Statements for Medical Diag vi. Catch-all NOT firmly rooted vii. Statements against interest NOT firmly rooted Lilly b. If not with a firmly rooted exception, the statement must be found to have circumstantial guarantees of reliability i. Corroboration cannot be used to support reliability of hearsay, only circumstances surrounding the statement Comments Cases Ohio v. Roberts