Hearsay Exceptions (803) Flashcards
Business records admissibility under 803
Rule 803(6) makes statements in records of regularly conducted activity (i.e., certain business records) an exception to the rule against hearsay if:
(1) the record was made at or near the time of the act or event by or from someone with knowledge,
(2) the record was kept in the ordinary course of a regularly conducted activity of the business,
(3) the record-keeping was a regular business practice,
(4) a qualified witness testifies that the rule’s conditions have been met, and
(5) neither the information’s source nor the method or circumstances of the record’s preparation indicate a lack of trustworthiness.
803(1) present sense impression
Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
803(2) excited utterance
Excited Utterance.
- Startling event
- Declaring made statement relating to startling event
- Declaring was under stress or excitement
- Stress or excitement was caused by the startling event.
803(3) Then-Existing Mental, Emotional, or Physical Condition
Then-Existing Mental, Emotional, or Physical Condition. 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.
803(4) Statement Made for Medical Diagnosis or Treatment
(4) Statement Made for Medical Diagnosis or Treatment. 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.
804(a) Hearsay exceptions, declarant is unavailable if
- Privilege
- Refuses despite court order
- Testifies (directly) to not remembering
- Death or physical infirmity
- Unable to obtain by process or other reasonable means
804(b) Hearsay exceptions where declarant is unavailable
- Former testimony
- Dying declaration
- Against interest
- Personal or family history
- Against party wrongfully causing declarant’s unavailability.
803(6) Business records exception
- Made at or near the time of the event
- Kept in ordinary course of business
- Regular practice of activity
- Doesn’t lack trustworthiness
- Shown by custodian or qualified witness
803(5) Past recollection recorded
- Witness who once knew about a matter
- Lacks sufficient memory to testify accurately
- Reflects witness’s knowledge at the time of the matter
803(8) Public records exception
- Records or statements of public officers
- Factual findings from a legally authorized investigation.
804(b)(3) Statement against interest
- Reasonable person in declarant’s position would have only made statement if true
- Was contrary to declarant’s proprietary or pecuniary interest, or
- Had a great tendency to invalidate declarant’s claim against someone else; or
- To expose declarant to civil or criminal liability
- Supported by corroborating circumstances indicating trustworthiness.
807 Residual exception
Catch-all:
1) trustworthy;
2) material fact at issue;
3) more probative than other evidence;
4) interests of justice
Catch all hearsay exception
SiMmeR
Sufficient guarantee of trustworthiness
More probative
Reasonable notice
8 strong hearsay exceptions
Harr-say says CAPT PERM
Current state
Activity
Present sense impression
Treatises
Public records
Excited utterances
Recorded recollection
Medical care
2 weak hearsay exceptions
- Former testimony
- Assertions against interest
