Short & Happy Guide Chapter 7: Hearsay Exceptions

Question 1

Absence of a Record of Regularly Conducted Activity

What FRE?

Answer 1

FRE 803(7)

Question 2

FRE 803(7)

Answer 2

Absence of a Record of Regularly Conducted Activity

Question 3

Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

What FRE?

Answer 3

FRE 803(7)

Question 4

This exception is basically the “opposite” of the business records exception. Whereas the business records exception is trying to prove something this is trying to prove nothing. For example, every time you rode your bike, you logged the date and time of your ride. Now, looking at your log for the past month, you notice that there is no date or time written dow for one particular Saturday. With that absent entry, you could use the log to show that you did not ride your bike on that particular Saturday. That is what is meant under the “absent of a record of a regularly conducted activity.” exception. FRE 803(7). !!

Answer 4

!!!

Question 5

FRE 803(7) The requirements for this exception are that you must demonstrate that
(1) ?
(2)
(3)

Answer 5

(1) all of the requirements of 803(6) have been met.

Question 6

FRE 803(7) The requirements for this exception are that you must demonstrate that
(1)
(2) ?
(3)

Answer 6

(2) that you are attempting to prove that a matter (otherwise documented in the records) did not occur or exist; and

Question 7

FRE 803(7) The requirements for this exception are that you must demonstrate that
(1)
(2)
(3) ?

if these requirements are met, the documents will be admitted but there is one additional provision in the rule.

Answer 7

(3) that a record was regularly kept for what you are trying to prove did not occur or exist.

Question 8

FRE 803(7) The requirements for this exception are that you must demonstrate that
(1)
(2)
(3)
(4) ?

Answer 8

(4) the opponent of the evidence must not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

Question 9

The rationale for this exception is the same as the previous exception. Records that comply with this exception are considered 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(7). !!

Answer 9

!!

Question 10

In A Few Good Men, there is a courtroom scene where defense counsel offers into evidence two logbooks from the airport runway towers. The tower logbooks detail each take-off and landing that occurred at the airport. He was using the logs to show that a particular flight did not exist. If the logs recorded every take-off and every landing, then the absence of a record of a take-off or landing would prove that a particular flight did not exist.

What FRE does this refer to?

Answer 10

FRE 803(7): Absence of a Record of Regularly Conducted Activity.

Question 11

FRE 803(8)

Answer 11

Public Records

Question 12

Public Records.

What FRE?

Answer 12

803(8)

Question 13

A record or statement of a public office is:
(A) it sets out:

(i) the office’s activities
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; or
(iii) in a vicil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

What FRE?

Answer 13

FRE 803(8): Public Records

Question 14

The writing must have been made by, and within the scope of the duty of, the ______ ______. FRE 803(8)(A)(ii).

Answer 14

public employee

Question 15

What is Reported? FRE 803(8)
FRE 803(8)(A)(i) ?
FRE 803(8)(A)(ii)
FRE 803(8)(A)(iii)

Answer 15

The activities of the office or the agency OR

Question 16

What is Reported? FRE 803(8)
FRE 803(8)(A)(i)
FRE 803(8)(A)(ii) ?
FRE 803(8)(A)(iii)

Answer 16

Matters observed by the office while under a legal duty to report

Question 17

What is Reported? FRE 803(8)
FRE 803(8)(A)(i)
FRE 803(8)(A)(ii)
FRE 803(8)(A)(iii) ?
Civil

Criminal

Answer 17

In a civil case, factual findings from a legally authorized investigation

In a criminal case when used against the government, factual findings from a legally authorized investigation.

Question 18

Exceptions:
IN a criminal case, matters observed by _____ ________ personnel will not be exempt under FRE 803(8)(A)(ii).

Answer 18

law enforcement

Question 19

FRE 803(8). The rule treats civil cases and criminal cases differently. The advisory committee noted that “______ ______ have generally been excluded except to the extent to which they incorporate firsthand observations of the officer.”

Answer 19

police reports

Question 20

FRE 803(8) is grounding on the assumption that a ____ _______ will perform his duty properly and the unlikelihood that he will remember details independently of the record.

Answer 20

public official

Question 21

An accident report is made by a police officer who describes the accident scene and comes to the conclusion that Danny Driver drove through a red light. The report also includes statements from witnesses who said Danny Driver drove through the red light.

In the _____ _____ of Plaintiff v. Danny Driver
The police report would be admissible under FRE 803(8)(A)(ii) [as to the description of the scene] and 803(8)(A)(iii) [as to the finding that Danny drove through the red light].

Answer 21

civil case

Question 22

An accident report is made by a police officer who describes the accident scene and comes to the conclusion that Danny Driver drove through a red light. The report also includes statements from witnesses who said Danny Driver drove through the red light.

In the _______ _____ of the State v. Danny Driver

The police report would not be admissible against Danny Driver (unless the report can be admitted under another exception). If the police report is offered by Danny Driver against the State, then the police officer’s conclusion would be admissible.

The statements from witnesses would not meet the exception under FRE 803(8). They would need a separate basis for admission.

Answer 22

criminal case

Question 23

FRE 803(10)

Answer 23

Absence of a Public Record

Question 24

Absence of a Public Record

What FRE?

Answer 24

FRE 803(10)

Question 25

Testimony or a certification under FRE 902 that a diligent search failed to disclose a public record or statement if:

(A) the testimony or certification is admitted to prove that

(i) the record or statement does not exist; or

(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice unless the court sets a different time for the notice or the objection.

What FRE?

Answer 25

FRE 803(10)

Question 26

If Jane Doe says she was born in a hospital in Lexington, Kentucky, and the custodian of records cannot find (after a “diligent search”) any birth certificate, then one might appropriately infer that Jane Doe was not, in fact, born in a hospital in Lexington, Kentucky.

What FRE?

Answer 26

FRE 803(10)

Question 27

FRE 803(16)

Answer 27

Statements in Ancient Documents

Question 28

Statements in Ancient Documents

What FRE?

Answer 28

FRE 803(16)

Question 29

A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.

What FRE?

Answer 29

803(16)