Short & Happy Guide Chapter 7 Hearsay Exceptions

Question 1

________ _______ are exactly what they seem to be; if a statement is excluded because it is prohibited under FRE 802, then these exceptions offer a process to “override” that prohibition.

Answer 1

Hearsay Exceptions

Question 2

Hearsay Exceptions are exactly what they seem to be; if a statement is excluded because it is prohibited under FRE 802, then these exceptions offer a process to “override” that prohibition.

The FRE provide three rules that set out these exceptions:
1.
2.
3.

Answer 2

1. 803
2. 804
3. 807

Question 3

If a statement would otherwise be excluded under the hearsay rule, and if that statement meets one of the exceptions set out in these rules, then the evidence is excepted from the hearsay rule and is not excluded. True or False.

Answer 3

True

Question 4

Do not forget that although a statement may not be excluded because of an exception, a different rule may keep the evidence from being admitted. !!

Answer 4

!!

Question 5

The federal rules have the exceptions broken down into three primary categories. Unofficially, these are called the _____ exceptions, the ______ exceptions, and the ______ exception.

Answer 5

strong

weak

residual

Question 6

The ______ exceptions are those listed in FRE 803 and are called “_______” because these exceptions will apply regardless of the declarant’s availability to testify.

Answer 6

strong

strong

Question 7

The strong exceptions are those listed in FRE 803 and are called strong because these exceptions will apply regardless of the ________ _________ to _________.

Answer 7

declarant’s availability to testify

Question 8

The _____ exceptions are set out in FRE 804 and apply only if the declarant is unavailable to testify.

Answer 8

weak

Question 9

The weak exceptions are set out in FRE 804 and apply only if the _________ is _________ to ________.

Answer 9

declarant is unavailable to testify.

Question 10

The weak exceptions are set out in FRE 804 and apply ______ if the declarant is unavailable to testify.

Answer 10

ONLY

Question 11

Availability of declarant is NOT required.

Answer 11

FRE 803 Strong Exceptions

Question 12

The declarant MUST be unavailable to testify.

Answer 12

FRE 804 Weak Exceptions

Question 13

The ________ exception, which is also referred to as the “catch all” exception, found under FRE 807.

Answer 13

residual

Question 14

The residual exception, which is also referred to as the ____ ____ exception, found under FRE 807.

Answer 14

catch all

Question 15

The ______ exception is the “kitchen sink” exception.

Answer 15

residual

Question 16

It’s like throwing in everything you can think of, in an attempt to keep the hearsay from being excluded.

Answer 16

Residual Exception

Question 17

FRE 803 contains ____ strong exceptions.

Answer 17

23

Question 18

The theory behind these exceptions is that the statements are _______ when they have been made under the circumstances set out in each exception. FRE 803.

Answer 18

reliable

Question 19

Whether you agree or not, it is part of the hearsay challenge to attack a statement and keep it out of evidence. Likewise, it is challenging to see how you might get a statement in evidence under one of these ______ exceptions.

Answer 19

strong

Question 20

FRE ______ provides that “the following kinds of statements are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness.”

Answer 20

FRE 803

Question 21

FRE 803 provides that the following kinds of statements are not _______ by the rule against hearsay, regardless of whether the ______ is available as a witness.

Answer 21

excluded

declarant

Question 22

The part of the rule that says, “regardless of whether the declarant is available as a witness” is what makes the rule _______.

Answer 22

strong

Question 23

Therefore, the only real requirement is that a statement specifically meets the requirements of the individual exception.

What rule?

Answer 23

FRE 803

Question 24

FRE 803(1)

Answer 24

Present Sense Impression

Question 25

FRE 803(1)

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

Answer 25

Present Sense Impression

Question 26

FRE 803(1)

“A statement ______ or _______ an event or condition, made while or immediately after the declarant perceived it.”

Answer 26

describing or explaining

Question 27

FRE 803(1)

“A statement describing or explaining an ______ or ______, made while or immediately after the declarant perceived it.”

Answer 27

event or condition

Question 28

The key to applying this exception is realizing that it has a temporal requirement; that is, the statement must be made “while or immediately after” perceiving whatever happened.

What does this refer to?

Answer 28

FRE 803(1): Present Sense Impression

Question 29

If one afternoon, a car runs a red light, and the declarant immediately says, “Oh my, the car just ran that red light.” then the statement would or would not meet the requirement of FRE 803(1)?

Answer 29

The statement would meet the requirement of FRE 803(1).

Question 30

If the declarant had said hours later at dinner, “This afternoon, a car ran a red light,” then would the statement meet the requirements of FRE 803(1)?

Answer 30

The statement would not meet the requirements of FRE 803(1) because the temporal requirement is not met.

Question 31

If the declarant had said hours later at dinner, “This afternoon, a car ran a red light,” then the statement would not meet the requirements of FRE 803(1) because the ______ _______ is not met.

The declarant didn’t make that statement while perceiving the incident, nor did she make it immediately after perceiving it. Instead, she made it hours later at dinner, so the exception does not apply.

Answer 31

temporal requirement

Question 32

FRE 803(1) Present Sense Impression

This exception has only two requirements:
1. ?
2.
(1)
(2)

Answer 32

1. The statement must describe, or explain, the event or condition; and

Question 33

FRE 803(1) Present Sense Impression

This exception has only two requirements:
1.
2. ?
(1)
(2)

Answer 33

2. The statement must be made

Question 34

FRE 803(1) Present Sense Impression

This exception has only two requirements:
1.
2.
(1) ?
(2)

Answer 34

(1) While the declarant perceived it

Question 35

FRE 803(1) Present Sense Impression

This exception has only two requirements:
1.
2.
(1)
(2) ?

Answer 35

(2) Immediately after the declarant perceived it.

Question 36

Some of the concerns with hearsay are not present with statements made under this exception. For example, a person may have a poor memory. It is believed that because the statement is made _____ or ______ ______ perceiving the event, any memory issues would not be present; the same is true with veracity. FRE 803(1).

Answer 36

while

immediately after

Question 37

The odds are that the declarant didn’t lie because she made the statement so close in time to the event. One court held that the theory underlying this exception is that substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation.

What rule does this refer to?

Answer 37

FRE 803(1)

Question 38

FRE 803(2)

Answer 38

Excited Utterance

Question 39

Excited Utterance.

What rule?

Answer 39

FRE 803(2)

Question 40

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

Answer 40

FRE 803(2)

Question 41

The Excited Utterance exception is often confused with the Present Sense Impression. Do not be fooled - they are very different. Unlike the previous exception, this one does not have a _______ _______. Instead, it has an ______ _______.

Answer 41

Temporal requirement

Emotional requirement

Question 42

Specifically, the statement must have been made while the declarant was “under the _____ of _______ that the startling event or condition caused. This could be hours or potentially days later. FRE 803(2)

Answer 42

stress

excitement

Question 43

Specifically, the statement must have been made while the declarant was under the stress of excitement that the startling event or condition caused. This could be ______ or potentially _____ later. FRE 803(2).

Answer 43

hours

days

Question 44

FRE 803(2) Excited Utterance.

This exception has three requirements:
1. ?
2.
3.

Answer 44

1. There was a startling event

Question 45

FRE 803(2) Excited Utterance.

This exception has three requirements:
1.
2. ?
3.

Answer 45

2. The statement related to the startling event; and

Question 46

FRE 803(2) Excited Utterance.

This exception has three requirements:
1.
2.
3. ?

Answer 46

3. The statement was made while under the stress of the excitement that it caused.

Question 47

The declarant was so stressed that she did not have to think about her answer.

Answer 47

FRE 803(2).

Question 48

The rationale underlying this exception is that the _______ suspends the declarant’s powers of reflection and fabrication, consequently minimizing the possibility that the utterance will be influenced by self-interest and therefore rendered unreliable.

Answer 48

excitement

Question 49

For example, consider the victim of a car wreck (a startling event). The victim could go into shock and while in the hospital, maybe hours after having been admitted, blurt out that she “saw the car fly through the red light” (related to the startling event). If she was still under the stress of the excitement caused by the wreck, then the statement would qualify under the exception. !!

Answer 49

!!

Question 50

Distinction between the present sense impression 803(1) and excited utterance 803(2).

Usually, there is not a significant delay between the statement and the event. Nevertheless, by its own terms, the rule does not dictate any time period. As one court noted, “the excited utterance exception allows for a broader scope of subject matter coverage than the present sense impression.

This is because the federal rules of evidence provide that an excited utterance FRE 803(2) includes a statement relating to a startling event while the present sense impression exception FRE 803(1) is limited to describing or explaining the event. the temporal gap between the event and the utterance is not itself dispositive. !!

Answer 50

!!

Question 51

Then-Existing Mental, Emotional, or Physical Condition

What FRE?

Answer 51

803(3)

Question 52

FRE 803(3)

Answer 52

Then-Existing Mental, Emotional, or Physical Condition

Question 53

“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.”

What FRE?

Answer 53

803(3)

Question 54

This is known informally as the “_____ ____ ___” exception. FRE 803(3)

Answer 54

state of mind

Question 55

Statements that meet the requirements of this exception should “mirror a state of mind, which, in light of all the circumstances, including _______ in ______ is reasonably likely to have been the same condition” at the time the statement was made.” FRE 803(3).

Answer 55

proximity in time

Question 56

FRE 803(3). This exception has two requirements; the statement must:
1. Describe the _______ of _____, or the emotional, sensory, or physical condition of the declarant at the time the statement was made; and

Answer 56

state of mind

Question 57

FRE 803(3). This exception has two requirements; the statement must:
1. Describe the state of mind, or the _____, ______ or ________ condition of the declarant at the time the statement was made; and

Answer 57

emotional, sensory, or physical

Question 58

FRE 803(3). This exception has 2 requirements; the statement must:
1. Describe the state of mind, or the emotional, sensory, or physical condition of the declarant at the time the statement was made; and
2. Not be one of _______ or _____ to prove the fact remembered, unless it relates to the validity or terms of the declarant’s will.

Answer 58

memory or belief

Question 59

FRE 803(3). This exception has 2 requirements; the statement must:
1. ?
2.

Answer 59

1. Describe the state of mind, or the emotional, sensory, or physical condition of the declarant at the time the statement was made; and

Question 60

FRE 803(3). This exception has 2 requirements; the statement must:
1.
2. ?

Answer 60

2. Not to be one of memory or belief to prove the fact remembered, unless it relates to the validity or terms of the declarant’s will.

Question 61

It is believed that many of the traditional concerns with hearsay, such as incorrect perception, poor memory, etc. would not apply because the declarant would know his or her own state of mind. FRE 803(3). True or False.

Answer 61

True

Question 62

FRE 803(3) provides an exception to the exception. That is, a statement that would otherwise be admissible under this exception is INADMISSIBLE if it is a statement of memory or belief offered to prove the fact remembered or believed. A witness may testify that a declarant said: “I am scared.” BUT NOT, “I am scared because the defendant threatened me.”

The reason is that the first statement is simply the declarant’s ____ ____ _____. The second encompasses mush more; it expresses the declarant’s belief that the defendant threatened her.

Answer 62

state of mind

Question 63

FRE 803(4)

Answer 63

Statement Made for Medical Diagnosis or Treatment

Question 64

Statement Made for Medical Diagnosis or Treatment.

What FRE?

Answer 64

803(4)

Question 65

A statement that
1. is made for and is reasonably pertinent to medical diagnosis and treatment; and
2. describes medical history; past or present symptoms or sensations; their inception; or their general cause.

What FRE?

Answer 65

803(4)

Question 66

FRE 803(4). This exception has two requirements:
1. The declarant’s ______ in making the statement is consistent with the purposes of promoting treatment; and

Answer 66

motive

Question 67

FRE 803(4). This exception has two requirements:
1. The declarant’s motive in making the statement is _______ with the purposes of _______ ________; and

Answer 67

consistent

promoting treatment

Question 68

FRE 803(4). This exception has two requirements:
1. The declarant’s motive in making the statement is consistent with the purposes of promoting treatment; and
2. The ______ of the ________ must be one that would be reasonably relied upon by a physician for treatment or diagnosis.

Answer 68

content
statement

Question 69

FRE 803(4). This exception has two requirements:
1. The declarant’s motive in making the statement is consistent with the purposes of promoting treatment; and
2. The content of the statement must be one that would be ________ relied upon by a physician for _______ or _________.

Answer 69

reasonably

treatment or diagnosis

Question 70

FRE 803(4). This exception has two requirements:
1. ?
2.

Answer 70

1. The declarant’s motive in making the statement is consistent with the purposes of promoting treatment; and

Question 71

FRE 803(4). This exception has two requirements:
1.
2. ?

Answer 71

2. The content of the statement must be one that would be reasonably relied upon by a physician for treatment or diagnosis.

Question 72

FRE 803(4). This exception has been extended to provides other than physicians including:
1.
2.
3.
4.
However, it would not apply to your mother treating your injury.

Answer 72

1. Psychotherapists,
2. Psychologists,
3. Therapists, and
4. nurses

Question 73

The basis for this exception is the belief that persons seeking medical treatment (or diagnosis) do not have any motive to lie. Rather, they have a strong incentive to tell the truth. FRE 803(4). True or False.

Answer 73

True

Question 74

For example, statements which concern the ______ of the injury will frequently meet the requirements for the exception, but statements which go beyond that and potentially _______ an _______ would unlikely meet the requirements of the exception. FRE 803(4).

Answer 74

cause

identify an assailant

Question 75

If statements which identify the assailant are relevant to treating the victim’s _____ or _______ injuries, then under those particular circumstances, those statements may meet the exception. Be cautious, however; such identifications would rarely have anything to do with a diagnosis or treatment. FRE 803(4).

Answer 75

emotional or psychological

Question 76

FRE 803(5)

Answer 76

Recorded Recollection

Question 77

Recorded Recollection.

What FRE?

Answer 77

FRE 803(5)

Question 78

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.

What FRE?

Answer 78

803(5)

Question 79

The “I forgot” problem is one that my child experiences often. Apparently, the same problem happens to adults too - so much so, there is an exception for witnesses who need to refresh their memory with virtually any kind of record when their recollection fails them. What FRE?

Answer 79

803(5)

Question 80

FRE 803(5) has 5 requirements:
1. ?
2.
3.
4.
5.

Answer 80

1. The statement must be in a record (of some kind);

Question 81

FRE 803(5) has 5 requirements:
1.
2. ?
3.
4.
5.

Answer 81

2. The Statement must be on a matter that the witness once knew about;

Question 82

FRE 803(5) has 5 requirements:
1.
2.
3. ?
4.
5.

Answer 82

3. The matter (contained in the statement) must be one that the witness cannot now recall well enough to testify fully and accurately;

Question 83

FRE 803(5) has 5 requirements:
1.
2.
3.
4. ?
5.

Answer 83

4. The statement was made at a time when the matter was fresh in the witness’s memory; and

Question 84

FRE 803(5) has 5 requirements:
1.
2.
3.
4.
5. ?

Answer 84

5. The statement accurately reflects the witness’s knowledge

Question 85

FRE 803(5). It is believed that the record would be more accurate and reliable because it would have been made at a time when the facts were fresh in the witness’s _______.

Answer 85

memory

Question 86

FRE 803(5). This exception has an unusual provision as part of its procedures. If a statement from a record is admitted, then the witness may ONLY read the statement at issue into the court record. The record used to refresh the witness’s recollection would not be admitted as an exhibit unless the record is offered into evidence by the adverse party. !!!!!!

Answer 86

!!!!!

Question 87

The Business Records Exception

What FRE?

Answer 87

FRE 803(6)

Question 88

FRE 803(6)

Answer 88

The Business Records Exception

Question 89

FRE 803(6):
A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by or from information transmitted by someone with knowledge

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with FRE 902(11) or (12) or with a statute permitting certification; and

(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

What FRE?

Answer 89

803(6)

Question 90

This exception is one of the most commonly used exceptions in trial. What FRE?

Answer 90

803(6) business records exception

Question 91

To begin with, the name of this exception is not the Business Records Exception. It is actually called “Records of Regularly Conducted Activity.” So, why is it titled this way? Because it is common for practitioners to refer to it as the Business Records Exception. Make sure you know both titles!!!!! FRE 803(6).

Answer 91

!!!!

Question 92

Under this exception, any writing (or record for that matter which meets the requirements will not be excluded by the hearsay rule. However, this exception is full of pitfalls. One of the pitfalls is that records which fall into this category are frequently fraught with multiple levels of ________. FRE 803(6)

Answer 92

hearsay

Question 93

FRE 803(6) has 7 requirements:
1. ?
2.
3.
4.
5.
6.
7.

Answer 93

1. The record must be of an act, event, condition, opinion, or diagnosis. FRE 803(6).

Question 94

FRE 803(6) has 7 requirements:
1.
2. ?
3.
4.
5.
6.
7.

Answer 94

2. The record must have been made FRE 803(6)(A)

(i) At the time of the matter contained in the record; or

(ii) Near the time of the matter contained in the record.

Question 95

FRE 803(6) has 7 requirements:
1.
2.
3. ?
4.
5.
6.
7.

Answer 95

3. The record must have been made FRE 803(6)(A).

(i) By someone with knowledge of the matter contained in the record; or

(ii) Transmitted by someone with knowledge of the matter contained in the record.

Question 96

FRE 803(6) has 7 requirements:
1.
2.
3.
4. ?
5.
6.
7.

Answer 96

4. The record was kept in the course of a regularly conducted activity of the entity which made the record.

(Note: the rule lists various entitles such as: business, organization, occupation, or calling, whether or not for profit). FRE 803(6)(B).

Question 97

FRE 803(6) has 7 requirements:
1.
2.
3.
4.
5. ?
6.
7.

Answer 97

5. It was a regular practice of that entity engaged in that activity to make that kind of record.

(Think about a nurse making a chart in a hospital.)

FRE 803(6)(C).

Question 98

FRE 803(6) has 7 requirements:
1.
2.
3.
4.
5.
6. ?
7.

Answer 98

6. A qualified witness can testify that these requirements (1-5 above) were met; FRE 803(6)(D) and

Question 99

FRE 803(6) has 7 requirements:
1.
2.
3.
4.
5.
6.
7. ?

Answer 99

7. The opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. FRE 803(6)(E).

Question 100

It is important that each of the requirements is met for the exception to apply. Although the exception is traditionally, and informally, called the “_______ ______ _____” the exception is NOT limited to businesses. FRE 803(6).

Answer 100

business records exception

Question 101

The exception applies to any business, organization, or calling whether or not for profit. FRE 803(6)(B).

Does this mean that it could apply to your neighbor who makes teddy bears in her living room and sells them on eBay?

Answer 101

Yes, it does.

Question 102

When applying the requirements under the exemption, it would be easier not to go through the subparts in numerical order. Actually, the requirements make more sense in that order:
Step 1:

Answer 102

(1) Is the record sought to be admitted, one that is an “act, condition, opinion, or diagnosis?”

If so, then continue your analysis. If not, the exception would not apply.

Question 103

When applying the requirements under the exemption, it would be easier not to go through the subparts in numerical order. Actually, the requirements make more sense in that order:
Step 2:

Answer 103

(2) Was the record “kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit?”

This part of the exception is construed broadly. It could apply to hospitals, schools, universities, churches, restaurants, etc.

Question 104

When applying the requirements under the exemption, it would be easier not to go through the subparts in numerical order. Actually, the requirements make more sense in that order:
Step 3:

Answer 104

(3) Was the making of the record “a regular practice of that activity?” FRE 803(6)(C).

Usually, this question is answered easily. But consider the case of Palmer v. Hoffman, where the railroad company prepared a report concerning an accident. The United States Supreme Court held that the railroad was in the “railroad” business, not the business of preparing reports in preparation for litigation. Hence, the making of the record was not admissible because compiling an accident report was not a regular practice of that activity [running a railroad].

Question 105

When applying the requirements under the exemption, it would be easier not to go through the subparts in numerical order. Actually, the requirements make more sense in that order:
Step 4
(Option 1)

Answer 105

(4.1) Was the record made at or near the time of the act, event, condition, opinion, or diagnosis? FRE 803(6)(A).

This part of the exception has an important temporal requirement. It has to be made either contemporaneously with the act, etc. or near the time of the act, etc. FRE 803(6)(A).

Question 106

When applying the requirements under the exemption, it would be easier not to go through the subparts in numerical order. Actually, the requirements make more sense in that order:
Step 4
(Option 2)

Answer 106

(4.2) Was the record created from “information transmitted by someone with knowledge of the act, event, condition, or diagnosis? FRE 803(6)(A).

If the information, that was ultimately documented, was obtained because someone with knowledge of the “act, etc transmitted the information, then this requirement has been met. If made at a time that is substantially later than the time when the act, etc. occurred, then the information must have been transmitted by someone with knowledge.

Question 107

If each of the four steps is met, then the record at issue must undergo one last analysis under this exception. Although the rule does not use the term “______________” that is essentially what the final step does. Notably, most of the other hearsay exceptions do not have similar _________ provisions; however, this one does. And that leads us to step 5.

Answer 107

authentication

Authentication

Question 108

Step 5

(5) Each of the above steps (1-4) must be shown by one of the following:
(i) ?
(ii)
(iii)
(iv)
(v)

Answer 108

(i): The testimony of the custodian of the records;

Question 109

Step 5

(5) Each of the above steps (1-4) must be shown by one of the following:
(i)
(ii) ?
(iii)
(iv)
(v)

Answer 109

(ii): The testimony of someone other than the custodian who is appropriately qualified;

Question 110

Step 5

(5) Each of the above steps (1-4) must be shown by one of the following:
(i)
(ii)
(iii) ?
(iv)
(v)

Answer 110

(iii): A certification that complies with 902(11)

Question 111

Step 5

(5) Each of the above steps (1-4) must be shown by one of the following:
(i)
(ii)
(iii)
(iv) ?
(v)

Answer 111

(iv): A certification that complies with 902(12); or

Question 112

Step 5

(5) Each of the above steps (1-4) must be shown by one of the following:
(i)
(ii)
(iii)
(iv)
(v) ?

Answer 112

(v): A statute that permits certification. FRE 803(6)(D).

Question 113

Step 5 might seem challenging, but the custodian required by the rule need ______ be the individual who personally gathered the business records need not be in control of or have individual knowledge of the particular corporate records, but need only be familiar with the company’s record keeping practices.

Answer 113

NOT

Question 114

Step 6.
The final analysis to this exception is Step 6, which isn’t really a step at all. It is more like a what if scenario when all of the previous steps are met. Can the opponent show that “the _____ of ________ or the method or circumstances of preparation indicate a lack of trustworthiness?” If so, the exception will not apply.

Answer 114

source of information

Question 115

________ that comply with this exception are thought to be reliable because “businesses depend on them to conduct their own affairs, so there is little if any incentive to be deceitful, and because the regularity of creating such records leads to the habits of accuracy. FRE 803(6).

Answer 115

Records

Question 116

FRE 803(6): Some documents which may fall short of the exception.

Some documents are more difficult to assess when viewed in light of this exception.
a. ?
b.
c.
d.

Answer 116

a. emails

Question 117

FRE 803(6): Some documents which may fall short of the exception.

Some documents are more difficult to assess when viewed in light of this exception.
a.
b. ?
c.
d.

Answer 117

b. Documents Prepared in Anticipation of Litigation

Question 118

FRE 803(6): Some documents which may fall short of the exception.

Some documents are more difficult to assess when viewed in light of this exception.
a.
b.
c. ?
d.

Answer 118

c. Computer Records

Question 119

FRE 803(6): Some documents which may fall short of the exception.

Some documents are more difficult to assess when viewed in light of this exception.
a.
b.
c.
d. ?

Answer 119

d. Hospital Records

Question 120

_______ create a number of challenges, and the application of the business records exception to email is no different. As the 4th Circuit held:

“Courts are in disagreement on whether _____ can and should fall under the business records hearsay exception.

Answer 120

emails

emails

Question 121

The business records exception assumes that records containing information necessary in the regular running of a business will be accurate and reliable. ______, however, is typically a more casual form of communication than other records usually kept in the course of business, such that it may not be appropriate to assume the same degree of accuracy and reliability.

Answer 121

E-mail

Question 122

While properly ______ _____ may be admitted under the exception, it would be insufficient to survive a hearsay challenge simply to say that since a business keeps and receives e-mails, then ergo all those emails are business records falling within FRE 803(6). An e-mail created within a business entity does not, for that reason alone, satisfy FRE 803(6).

Answer 122

authenticated emails

Question 123

If an entity is not in the business of preparing records, then documents prepared in ______ ____ _______ cannot meet the requirement of the business records exception because FRE 803(6)(C) requires that the making of the record was a regular practice of that activity. As the 7th circuit recently held, it is well established that documents prepared in anticipation of litigation are not admissible under FRE 803(6)

Answer 123

anticipation of litigation

Question 124

When dealing with ______ ____ under FRE 803(6) it is not required that the qualified witness (referring to 803(6)(D) be a computer programmer or that she be the person who actually prepared the record. The rule simply requires that the witness be one who can explain and be cross-examined concerning the manner in which the records are made and kept.

Answer 124

computer records

Question 125

________ _______ usually meet the requirements under the business records exception. Be cautious; However, at times hospital records contain information that exceeds the scope of what would typically fall within those regularly kept by hospitals. On the other hand, records related to medical diagnosis and treatment are quite likely to meet the exception.

Answer 125

Hospital Records

Question 126

Suppose that the business records in question are medical records. The medical records may contain records of a medical examination and a diagnosis., These records would likely fall squarely within the business records exception. But what if those medical records also contained statements by a patient that led to the diagnosis. Those statements would have been provided by an _______ who is not under a business duty to provide accurate information and therefore would NOT be admissible under FRE 803(6).

Those statements must also meet an exception to the hearsay rule.

The patient’s statements, in this example, would likely meet the exception set out in FRE 803(4).

Therefore, the hearsay (patients statements) within the hearsay (medical records) would not be excluded by the hearsay rule because they EACH meet an exception.

Answer 126

outsider

outsider

Question 127

Business records frequently contain hearsay within hearsay. Each level of hearsay must meet an exception.

Hearsay within hearsay in the context of business records exists when the record is prepared by an employee with information supplied by another person. If the person who provides the information is an outsider to the business who is not under a business duty to prove accurate information, the reliability rationale that underlies the business records exception ordinarily does not apply.

Accordingly, the general rule is that any information provided by an outsider to the business preparing the record must fall within a different hearsay exception to be admissible. !!!

Answer 127

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Question 128

When not dealing with an outsider the requirement of a different exception may not apply. Hearsay within hearsay in the context of a business record exists when the record is prepared by an employee with information supplied by another person. If both the source and the recorder of the information, as well as every other participant in the chain producing the record, are acting in the regular course of business, the multiple hearsay is excused by FRE 803(6). !!

Answer 128

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