Short & Happy Guide Chapter 7 Hearsay Exceptions Flashcards
________ _______ 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.
Hearsay Exceptions
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.
- 803
- 804
- 807
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.
True
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. !!
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The federal rules have the exceptions broken down into three primary categories. Unofficially, these are called the _____ exceptions, the ______ exceptions, and the ______ exception.
strong
weak
residual
The ______ exceptions are those listed in FRE 803 and are called “_______” because these exceptions will apply regardless of the declarant’s availability to testify.
strong
strong
The strong exceptions are those listed in FRE 803 and are called strong because these exceptions will apply regardless of the ________ _________ to _________.
declarant’s availability to testify
The _____ exceptions are set out in FRE 804 and apply only if the declarant is unavailable to testify.
weak
The weak exceptions are set out in FRE 804 and apply only if the _________ is _________ to ________.
declarant is unavailable to testify.
The weak exceptions are set out in FRE 804 and apply ______ if the declarant is unavailable to testify.
ONLY
Availability of declarant is NOT required.
FRE 803 Strong Exceptions
The declarant MUST be unavailable to testify.
FRE 804 Weak Exceptions
The ________ exception, which is also referred to as the “catch all” exception, found under FRE 807.
residual
The residual exception, which is also referred to as the ____ ____ exception, found under FRE 807.
catch all
The ______ exception is the “kitchen sink” exception.
residual
It’s like throwing in everything you can think of, in an attempt to keep the hearsay from being excluded.
Residual Exception
FRE 803 contains ____ strong exceptions.
23
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.
reliable
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.
strong
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.”
FRE 803
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.
excluded
declarant
The part of the rule that says, “regardless of whether the declarant is available as a witness” is what makes the rule _______.
strong
Therefore, the only real requirement is that a statement specifically meets the requirements of the individual exception.
What rule?
FRE 803
FRE 803(1)
Present Sense Impression
FRE 803(1)
“A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.”
Present Sense Impression
FRE 803(1)
“A statement ______ or _______ an event or condition, made while or immediately after the declarant perceived it.”
describing or explaining
FRE 803(1)
“A statement describing or explaining an ______ or ______, made while or immediately after the declarant perceived it.”
event or condition
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?
FRE 803(1): Present Sense Impression
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)?
The statement would meet the requirement of FRE 803(1).
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)?
The statement would not meet the requirements of FRE 803(1) because the temporal requirement is not met.
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.
temporal requirement
FRE 803(1) Present Sense Impression
This exception has only two requirements:
1. ?
2.
(1)
(2)
- The statement must describe, or explain, the event or condition; and
FRE 803(1) Present Sense Impression
This exception has only two requirements:
1.
2. ?
(1)
(2)
- The statement must be made
FRE 803(1) Present Sense Impression
This exception has only two requirements:
1.
2.
(1) ?
(2)
(1) While the declarant perceived it
FRE 803(1) Present Sense Impression
This exception has only two requirements:
1.
2.
(1)
(2) ?
(2) Immediately after the declarant perceived it.
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).
while
immediately after
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?
FRE 803(1)
FRE 803(2)
Excited Utterance
Excited Utterance.
What rule?
FRE 803(2)
“A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.”
FRE 803(2)
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 ______ _______.
Temporal requirement
Emotional requirement
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)
stress
excitement
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).
hours
days
FRE 803(2) Excited Utterance.
This exception has three requirements:
1. ?
2.
3.
- There was a startling event
FRE 803(2) Excited Utterance.
This exception has three requirements:
1.
2. ?
3.
- The statement related to the startling event; and
FRE 803(2) Excited Utterance.
This exception has three requirements:
1.
2.
3. ?
- The statement was made while under the stress of the excitement that it caused.
The declarant was so stressed that she did not have to think about her answer.
FRE 803(2).
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.
excitement
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. !!
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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. !!
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Then-Existing Mental, Emotional, or Physical Condition
What FRE?
803(3)
FRE 803(3)
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.”
What FRE?
803(3)
This is known informally as the “_____ ____ ___” exception. FRE 803(3)
state of mind
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).
proximity in time
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
state of mind
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
emotional, sensory, or physical
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.
memory or belief
FRE 803(3). This exception has 2 requirements; the statement must:
1. ?
2.
- Describe the state of mind, or the emotional, sensory, or physical condition of the declarant at the time the statement was made; and
FRE 803(3). This exception has 2 requirements; the statement must:
1.
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.
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.
True
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.
state of mind
FRE 803(4)
Statement Made for Medical Diagnosis or Treatment
Statement Made for Medical Diagnosis or Treatment.
What FRE?
803(4)
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?
803(4)
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
motive
FRE 803(4). This exception has two requirements:
1. The declarant’s motive in making the statement is _______ with the purposes of _______ ________; and
consistent
promoting treatment
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.
content
statement
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 _________.
reasonably
treatment or diagnosis
FRE 803(4). This exception has two requirements:
1. ?
2.
- The declarant’s motive in making the statement is consistent with the purposes of promoting treatment; and
FRE 803(4). This exception has two requirements:
1.
2. ?
- The content of the statement must be one that would be reasonably relied upon by a physician for treatment or diagnosis.
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.
- Psychotherapists,
- Psychologists,
- Therapists, and
- nurses
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.
True
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).
cause
identify an assailant
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).
emotional or psychological
FRE 803(5)
Recorded Recollection
Recorded Recollection.
What FRE?
FRE 803(5)
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?
803(5)
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?
803(5)
FRE 803(5) has 5 requirements:
1. ?
2.
3.
4.
5.
- The statement must be in a record (of some kind);
FRE 803(5) has 5 requirements:
1.
2. ?
3.
4.
5.
- The Statement must be on a matter that the witness once knew about;
FRE 803(5) has 5 requirements:
1.
2.
3. ?
4.
5.
- The matter (contained in the statement) must be one that the witness cannot now recall well enough to testify fully and accurately;
FRE 803(5) has 5 requirements:
1.
2.
3.
4. ?
5.
- The statement was made at a time when the matter was fresh in the witness’s memory; and
FRE 803(5) has 5 requirements:
1.
2.
3.
4.
5. ?
- The statement accurately reflects the witness’s knowledge
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 _______.
memory
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. !!!!!!
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The Business Records Exception
What FRE?
FRE 803(6)
FRE 803(6)
The Business Records Exception
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?
803(6)
This exception is one of the most commonly used exceptions in trial. What FRE?
803(6) business records exception
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).
!!!!
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)
hearsay
FRE 803(6) has 7 requirements:
1. ?
2.
3.
4.
5.
6.
7.
- The record must be of an act, event, condition, opinion, or diagnosis. FRE 803(6).
FRE 803(6) has 7 requirements:
1.
2. ?
3.
4.
5.
6.
7.
- 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.
FRE 803(6) has 7 requirements:
1.
2.
3. ?
4.
5.
6.
7.
- 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.
FRE 803(6) has 7 requirements:
1.
2.
3.
4. ?
5.
6.
7.
- 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).
FRE 803(6) has 7 requirements:
1.
2.
3.
4.
5. ?
6.
7.
- 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).
FRE 803(6) has 7 requirements:
1.
2.
3.
4.
5.
6. ?
7.
- A qualified witness can testify that these requirements (1-5 above) were met; FRE 803(6)(D) and
FRE 803(6) has 7 requirements:
1.
2.
3.
4.
5.
6.
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).
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).
business records exception
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?
Yes, it does.
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:
(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.
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:
(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.
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:
(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].
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)
(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).
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)
(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.
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.
authentication
Authentication
Step 5
(5) Each of the above steps (1-4) must be shown by one of the following:
(i) ?
(ii)
(iii)
(iv)
(v)
(i): The testimony of the custodian of the records;
Step 5
(5) Each of the above steps (1-4) must be shown by one of the following:
(i)
(ii) ?
(iii)
(iv)
(v)
(ii): The testimony of someone other than the custodian who is appropriately qualified;
Step 5
(5) Each of the above steps (1-4) must be shown by one of the following:
(i)
(ii)
(iii) ?
(iv)
(v)
(iii): A certification that complies with 902(11)
Step 5
(5) Each of the above steps (1-4) must be shown by one of the following:
(i)
(ii)
(iii)
(iv) ?
(v)
(iv): A certification that complies with 902(12); or
Step 5
(5) Each of the above steps (1-4) must be shown by one of the following:
(i)
(ii)
(iii)
(iv)
(v) ?
(v): A statute that permits certification. FRE 803(6)(D).
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.
NOT
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.
source of information
________ 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).
Records
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.
a. emails
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.
b. Documents Prepared in Anticipation of Litigation
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.
c. Computer Records
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. ?
d. Hospital Records
_______ 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.
emails
emails
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.
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).
authenticated emails
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)
anticipation of litigation
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.
computer records
________ _______ 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.
Hospital Records
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.
outsider
outsider
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. !!!
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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). !!
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