7 - Hearsay Exceptions

Question 1

What are the two major justifications for allowing hearsay?

Answer 1

either because of necessity (i.e., the declarant is unavailable), or because the statements are inherently trustworthy (in which case the declarant’s availability is immaterial)

Question 2

What are the three main categories of hearsay exceptions?

Answer 2

1. Unavailable Declarant
2. Declarant’s Availability Immaterial
3. Residual Exception

Question 3

What are the categories of “unavailable declarant”? (6)

Answer 3

1. “Unavailable”
2. Former Testimony
3. Dying Declarations
4. Statements Against Interest
5. Statement of Personal or Family History
6. Forfeiture by Wrongdoing

Question 4

How may exceptions does Rule 803 list that apply regardless of whether the declarant is available?

Answer 4

23 exceptions

Question 5

What are the most important hearsay exceptions where the declarant’s availability is immaterial? (9)

Answer 5

1. Present Sense Impression
2. Excited Utterances
3. Statements of Mental, Emotional, or Physical Condition
4. Statements for Purposes of Medical Diagnosis or Treatment
5. Recorded Recollection
6. Business Records
7. Public records and Reports
8. Learned Treatises
9. Judgment of Previous Conviction

Question 6

What are some less important hearsay exceptions where the declarant’s availability is immaterial? (8)

Answer 6

1. Records of vital statistics
2. Records of religious organizations
3. Marriage and baptismal certificates, and family records
4. Records of, and statements in, documents affecting an interest in property
5. Statements in ancient documents (i.e., authenticated documents in existence at least 20 years)
6. Market reports and commercial publications
7. Reputation concerning personal or family history, boundaries or general history, or character
8. Judgments as proof of matters of personal, family, or general history, or boundaries

Question 7

What is the “residual exception”? What are its three requirements? What FRE?

Answer 7

There Is a “catch-all” exception for a statement that is not otherwise covered by the Federal Rules. A hearsay statement may be admissible under this exception if:
i) It carries a guarantee of trustworthiness;
ii) It is offered as evidence of a material fact and is more probative than any other
evidence on point; and
iii) Notice of the nature of the statement is given to the opposing side in advance of trial.
Fed. R. Evid. 807.

Question 8

What about “unavailable” under “Unavailable Declarant”? What five ways can a person be “unavailable”? What FRE? Something special?

Answer 8

There are five exceptions to the hearsay rule that apply only if the declarant is unavailable. An unavailable declarant is a person who:

i) Is exempt on the grounds of privilege;
ii) Refuses to testify;
iii) Lacks memory of the subject matter of the statement;
iv) Is unable to testify due to death or physical or mental disability; or
v) Is absent and cannot be subpoenaed or otherwise made to be present.

A declarant is not deemed unavailable if the unavailability is due to the procurement or wrongdoing of the proponent of a statement made for the purpose of preventing the witness from testifying at, or attending the trial.
Fed. R. Evid. 804(a).

Question 9

What about “former testimony” under “Unavailable Declarant”? Must the former hearing/deposition have been connection with the current proceedings? Something special?

Answer 9

The former testimony of an unavailable witness given under oath in a hearing or deposition is admissible in a subsequent trial if the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct, redirect, or cross-examination. The former hearing or deposition may, but need not, have been in connection with the current proceedings.

Grand Jury testimony does not fall within the former testimony exception (although it may be admissible as a prior inconsistent statement). Fed. R. Evid. 804(b)(1).

Question 10

What about “dying declarations” under “Unavailable Declarant”? What are the three requirements? Need the declarant have died? In what actions are such declarations admissible? What FRE?

Answer 10

A “dying declaration” qualifies as a hearsay exception if:

i) The statement is made by a person who believes that she is dying;
ii) That person believes that her death is imminent, and
iii) The statement pertains to the cause or circumstances of her death.

Although the declarant must be unavailable, she need not have actually died in order for the statement to be admissible. Dying declarations are admissible in homicide prosecutions and all civil actions. Fed. R. Evid. 804(b)(2).

Question 11

What about “statements against interest” under “Unavailable Declarant”? What are the two requirements? What about corroborating circumstances? What FRE? How is this distinguished from an “admission”?

Answer 11

A statement against interest is one that:
i) Was against the declarant’s interest at the time it was made; and
ii) A reasonable person would not have made unless he believed it to be true.
A statement that would subject the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Fed. R. Evid. 804(b)(3).

A statement against interest may be made by a non-party, who must be unavailable, and the statement must have been against the declarant’s interest at the time it was made. An admission, on the other hand, must have been made by a party, and the admission need not have been against the party’s interest when it was made.

Question 12

What about “statement of personal or family history” under “unavailable declarant”? What FRE?

Answer 12

A statement concerning the unavailable declarant’s own birth, adoption, marriage, divorce, legitimacy, familial relationship, or other similar fact of personal or family history qualifies as a hearsay exception. Fed. R. Evid. 804(b)(4).

Question 13

What about “forfeiture by wrongdoing” under “unavailable declarant”? Does it apply to all parties? What FRE?

Answer 13

A statement offered against a party that is wrongfully responsible for the declarant’s unavailability qualifies as a hearsay exception. The wrongful party forfeits the right to object to the admission of the declarant’s statement as hearsay. The wrongdoing, which need not be criminal, may be accomplished not only by a deliberate act but also by acquiescence in another’s act. This exception applies to all parties, including the government. Fed. R. Evid. 804(b)(6).

Question 14

What about “present sense impression” under “declarant’s availability immaterial”? What FRE?

Answer 14

A statement describing or explaining an event that is made while the declarant is perceiving the event (or immediately thereafter) is admissible under the present sense impression exception to the hearsay rule. Fed. R. Evid. 803(1).

Question 15

What about “excited utterances” under “declarant’s availability immaterial”? What FRE? How is it distinguished from a “present sense impression”?

Answer 15

A statement made about a startling event or condition while the declarant is under the stress of excitement caused by the event is admissible as an excited utterance. The event must shock or excite the declarant, and the statement must relate to the event, but the declarant need not be a participant in the event (i.e., can be a bystander). Fed. R. Evid. 803(2).

A present sense impression must be a description of the event, whereas an excited utterance need only relate to the exciting event.
Example 1: Adele looks out the window and states, “It sure is raining hard tonight.” She has made a statement of present sense impression, which is admissible to prove that it rained on the night in question.
Example 2: Bob discovers that he has a winning lottery ticket and shouts, “I just won a million dollars!” He has made an excited utterance, which is admissible to prove that he won the money.
Note that there is some overlap between these exceptions, and It is conceivable that a statement could fall into both categories, such as a statement describing a murder made immediately after the murder took place.

Question 16

What about “statements of mental, emotional, or physical condition” under “declarant’s availability immaterial”? What can it be used to prove? (2) What FRE?

Answer 16

A statement of the declarant’s then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) may be used to prove the existence of the condition or to prove conduct in conformity with the stated intent. Fed. R. Evid. 803(3).

Question 17

What about “physical condition” under “statements of mental, emotional, or physical condition” under “declarant’s availability immaterial”? What about past conditions?

Answer 17

When a declarant’s physical condition at a particular time is in question, a statement made at that time is admissible to prove the existence (but not the cause) of that condition.

In most states, a statement made by a patient to a doctor relating to a past condition Is not admissible under this exception. Under the federal rules, such a statement is admissible under the hearsay exception for statements for purposes of medical diagnosis or treatment.

Question 18

What about “state of mind” under “statements of mental, emotional, or physical condition” under “declarant’s availability immaterial”? How is this different from circumstantial evidence of the declarant’s state of mind?

Answer 18

A statement of present intent is admissible to prove conduct in conformity with the stated intent. A statement of a past memory or belief is not admissible unless it relates to the execution, revocation, or terms of a declarant’s will.

Do not confuse this “state of mind” hearsay exception with circumstantial evidence of the declarant’s state of mind, which is not hearsay. To fall under the hearsay exception, the statement must be offered to prove that the declarant acted in accordance with his stated intent.

Question 19

What about “Statements for Purposes of Medical Diagnosis or Treatment” under “declarant’s availability immaterial”? What FRE? Must the statement have been made by the patient? What about the physician-patient privilege?

Answer 19

A statement that is made describing medical history or past or present symptoms, pain, or other sensation is admissible if it is made to a physician or other medical personnel for the purpose of medical diagnosis or treatment. A statement of the cause or source of the condition is admissible if it is reasonably pertinent to diagnosis or treatment. Fed. R. Evid. 803(4).
Note that the statement need not necessarily be made by the patient, so long as it is made for the purpose of medical diagnosis or treatment. The relationship between the declarant and the patient usually determines admissibility - the closer the relationship, the stronger the motive to tell the truth, and, as such, the more presumably reliable the statement. The court must assess the probative value of the statement pursuant to Rule 403, weighing that value against the risk of prejudice, confusion, or waste of time.

A statement that is admissible under this hearsay exception still may be inadmissible if it is protected by the physician-patient privilege.

Question 20

What about “Recorded Recollection” under “declarant’s availability immaterial”? What four foundational elements must be proven? May the record or memo be introduced as an exhibit? What FRE? How is this different from “Present Recollection Refreshed”?

Answer 20

If a witness is unable to testify about a matter for which a record exists, that record may be admitted into evidence if the following foundation is established:
i) The record concerns a matter of which the witness once had knowledge;
ii) The record was prepared or adopted by the witness when the matter was
fresh in the witness’s memory;
iii) The record accurately reflects the witness’s knowledge; and
iv) The witness states that she has insufficient recollection of the event to testify
fully and accurately, even after consulting the writing while on the stand.

The memorandum or record may be read to the jury but may not be introduced as an exhibit unless it is offered by the opposing party. Fed. R. Evid. 803(5).

Recall that under Rule 612, the item used to refresh the witness’s recollection (which need not be a writing) is not admitted into evidence, so there is no hearsay problem.

Question 21

What about “business records” under “declarant’s availability immaterial”? What are the four issues to remember? What FRE?

Answer 21

A record or other writing (e.g., memorandum, report, data compilation) of any act or
event made in the course of regularly conducted business is admissible. Fed.
R. Evid. 803(6).

1. Authentication
2. Medical records
3. Anticipation of litigation
4. Lack of trustworthiness

Question 22

What about “authentication” under “business records”? What must the custodian or another qualified witness generally establish? (3) What about “self-authentication”? How is this different from “past recollection recorded”?

Answer 22

In order to be admitted, the custodian of the record or other qualified witness must generally establish that the record was made:

i) At or near the time of the event;
ii) By a person with knowledge of the event and under a duty to report it, or from information transmitted by such a person; and
iii) As part of a regular practice of making the kind of entry in question during the regular course of business.

A business record is self-authenticated if a person who is qualified to certify that it meets these requirements does make such a certification (such as by Fed. R. Evid. 902, or by statute).

A document could possibly fall under both 803(5) and 803(6). However, the business records exception requires a regularly conducted business activity, and does not require the presence of the witness, or the exhaustion of memory that is required for past recollection recorded.

Question 23

What about “medical records” under “business records”?

Answer 23

Medical records are considered business records to the extent that the entries relate to diagnosis or treatment; statements related to fault associated with the cause of injury are inadmissible under this exception.

Question 24

What about “anticipation of litigation” under “business records”? What case?

Answer 24

Records prepared in anticipation of litigation are not admissible as business records.
Palmer v. Hoffman, 318 U.S. 109 ( 1943).

Question 25

What about “lack of trustworthiness” under “business records”? What about an “absence of an entry”? What FRE?

Answer 25

A business record that otherwise qualifies as a hearsay exception is nevertheless
inadmissible if the source of information for the record or the method or
circumstances of its preparation indicate a lack of trustworthiness.

The absence of an entry in a business record is admissible to prove that an act
or event did not occur, if the event was of a kind regularly recorded in such a
business record, unless circumstance indicates a lack of trustworthiness. Fed. R. Evid. 803(7).

Question 26

What about “public records and reports” under “declarant’s availability immaterial”? What are the three types? What if something indicates a lack of trustworthiness? What FRE? What about a police report not allowable under the business records exception? What FRE?

Answer 26

A hearsay exception applies to records, statements, and reports prepared by a public official or agency setting forth:

i) The activities of the office or agency;
ii) The observations of a person under a duty to report those observations (except for observations of law enforcement officers offered against the accused in criminal cases); or
iii) Factual findings of a legal investigation, when offered against the government in a criminal action, or against either party in a civil action.

As with a business record, the court may exclude any evidence offered under this exception, if the source of the information or other circumstances indicates a lack of
trustworthiness. Fed. R. Evid. 803(8).

A police report not allowable under the business records exception may be admissible under the public records exception, as long as statements by others within the report are also admissible. Fed. R. Evid. 803.

Question 27

What about “learned treatises” under “declarant’s availability immaterial”? What are the two requirements? Would the treatise itself be admitted into evidence? What FRE?

Answer 27

A statement contained in published treatises or periodicals on a subject of history, medicine, or other science or art, is admissible if:
i) The treatise is established as a reliable authority by testimony of the witness, by other expert testimony, or by judicial notice; and
ii) An expert witness relied on the document during direct examination or
it was brought to the expert’s attention on cross-examination.

The treatise itself is not admitted into evidence; the statements are read into evidence and may be used as substantive evidence or for impeachment. Fed. R. Evid. 803(18).

Question 28

What about “judgment of previous conviction” under “declarant’s availability immaterial”? What must it prove? What if the conviction is of someone other than the defendant? Does the pendency of an appeal of the conviction matter? What FRE?

Answer 28

Evidence of a felony conviction is admissible under a hearsay exception in a subsequent trial against the person convicted in order to prove any fact essential to sustain the judgment. A conviction based on a verdict by the court or a jury or on a guilty plea, but not a plea of no contest (i.e., nolo contendere), may be used.

Such a conviction may not be used by the prosecution in another criminal case for purposes other than impeachment, when the conviction was of a person other than the defendant.

The pendency of an appeal of the conviction does not prevent its admissibility.

Fed. R. Evid. 803(22).