Hearsay Exception 803 Flashcards
Hearsay Exception under 803
the declarant’s availability is immaterial…exceptions do not require that the declarant be unavailable because the circumstances under which the statements were made suggest that the statements are inherently trustworthy. Fed. R. Evid. 803
RECORDED RECOLLECTION
If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if the following foundation is established:
i) The record is on a matter that the witness once knew about;
ii) The record was made 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 cannot recall the event well enough to testify fully and accurately, even after consulting record on the stand.
Admitting the Recorded Recollection
if admitted, may be read into evidence, but it may be received as an exhibit only if offered by an adverse party. Fed. R. Evid. 803(5).
RECORDS OF REGULARLY CONDUCTED ACTIVITY (biz records)
A record (e.g., memorandum, report, data compilation) of an act, event, condition, opinion, or diagnosis is not excluded as hearsay if:
i) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling;
ii) The making of the record was a regular practice of that activity; and
iii) The record was made at or near the time by (or from information transmitted by) someone with knowledge.
Authentication of BIZ records
the custodian of the record or other qualified witness may testify that the above requirements have been met. Alternatively, a record may be self-authenticated if properly certified
Can records mades in anticipation of litigation be admitted?
NO!!! Anticipation of litigation: Records prepared in anticipation of litigation, such as an employee’s accident report, may not qualify under this exception due to a lack of trustworthiness.
Can a police report qualify for biz records exception?
YES!!! A police report can qualify but a statement made by a witness that is contained in the report does not generally qualify because the witness is not acting on behalf of the police in making the statement.
The statement may, however, qualify under another hearsay exception, such as an opposing party’s statement.
PUBLIC RECORDS EXCEPTION
IF
1. The activities of the office or agency;
- An observation of a person under a duty to report the observation (except for an observation of a law enforcement officer offered in a criminal case); or
- Factual findings of a legal investigation, when offered in a civil case or against the government in a criminal case.
INCLUDES INVESTIGATION REPORTS
Public record or vital statistics
A record of a birth, death, or marriage is not excluded as hearsay if the event is reported to a public office in accordance with a legal duty. Fed. R. Evid. 803(9).
Learned Treatises
A statement contained in a treatise, periodical, or pamphlet is not excluded if:
- An expert witness relied on the statement during direct examination or it was called to the expert’s attention on cross-examination; and
- The publication is established as a reliable authority by admission or testimony of the expert witness, by another expert’s testimony, or by judicial notice.
- If admitted, the statement is read into evidence, but the publication itself may not be received as an exhibit.
can the treatise be admitted as an exhibit?
NO!!! only be read into evidence
Other exceptions
present sense impression
excited uttterance
medical purpose- not fault statements
Judgments of previous convictions
Judgments of previous convictions
Evidence of a final judgment of conviction is not excluded as hearsay if:
- The judgment was entered after a trial or guilty plea, but not a plea of no contest (i.e., nolo contendere);
- The conviction was for a crime punishable by death or imprisonment for more than one year; and
- The evidence is offered to prove any fact essential to sustain the judgment.
If the prosecutor in a criminal case offers evidence of a final judgment of conviction for a purpose other than impeachment, the judgment must have been against the defendant. Fed. R. Evid. 803(22).
Traffic offense: A driver’s guilty plea to a traffic offense that is punishable by a fine or imprisonment for one year or less cannot be used as evidence of the driver’s negligence under this hearsay exception.
When a can judgments of previous convictions not
a plea of no contest (i.e., nolo contendere);
Traffic of guilty plea (even if imprisonment of one year or less)
Other exceptions
–>Records of, and statements in, documents affecting an interest in property
–>Statements in ancient documents (i.e., authenticated documents in existence at least 20 years)
