Unrestricted Exceptions to the Hearsay Rule Flashcards
Three Categories of Hearsay Exceptions
- FRE 803 – 23 exceptions that apply whether or not the declarant is available to testify in the current trial
- FRE 804 – 5 exceptions that only apply if the declarant is not available to testify in the current trial.
- FRE 807 – a residual hearsay exception
FRE 803 Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available to testify:
FRE 803(1) Present Sense Impression
A statement describing or explaining an event or condition made while or immediately after the declarant perceived it.
Rationale for FRE 803(1)
It takes time to form a lie
FRE 803(1)
While or Immediately After
The impression must not occur more than a few minutes after the condition or event
FRE 803(1)
Explain
This does not mean explain the cause
FRE 803(1)
Relevance Standard
The judge should use 104(b). Based on admissible evidence, and suspending credibility determinations, the trial court should decide whether there is sufficient evidence to allow a jury to reasonably find, by the preponderance of the evidence, that the declarant perceived the event.
FRE 803(2)
Excited Utterance
A statement relating to a startling event or condition and made while the declarant was under the stress of excitement that it caused.
Rationale for FRE 803(2)
People must be calm to lie
FRE 803(2)
Startling Event
Circumstances that produce a condition of excitement which temporarily stills the capacity for reflection and produces utterances free of conscious fabrication
Relevant Standard for FRE 803(2)
The judge decides this under FRE 104(a) by using common sense to decide whether the event is startling, except if the declarant’s personal knowledge is in question.
Comparison of FRE 803(1) and FRE 803(2)
Type of Event
FRE 803(1) – any event or condition
FRE 803(2) – a startling event or condition
Comparison of FRE 803(1) and FRE 803(2)
Timing
FRE 803(1) – the declarant must make the statement during or immediately after the event or condition
FRE 803(2) – no time limit
Comparison of FRE 803(1) and FRE 803(2)
Mental State
FRE 803(1) – no mental state
FRE 803(2) – the declarant must make the statement while under the stress of excitement that the event or condition
Comparison of FRE 803(1) and 803(2)
Topic
FRE 803(1) – the statement must describe or explain the event or condition
FRE 803(2) – the statement must be related to the event or condition
FRE 803(4) Statement Made for Medical Diagnosis or Treatment
A statement that
- Is made for and is reasonably pertinent to medical diagnosis or treatment and
- Describes medical history, past or present symptoms or sensations, their inception or their general cause.
FRE 803(4)
Who the Statements Can Be Made To
Statements must be made by medical personnel, which includes
- Psychiatrists
- Psychologists
- Social workers
- Family members
- Colleagues
- Hospital attendants
- Ambulance drivers
- Lay people…etc.
FRE 803(4) Who Can Make the Statement
- The injured person
- People with personal knowledge of the person’s injury
FRE 803(4)
Direction of the Statement
FRE 803(4) is a one-way street. People’s statements to medical professions are admissible, but statements by medical professionals to their patients are not.
Rationale for FRE 803(4)
When people are sick and trying to get help, it’s in their best interest to tell the truth
FRE 803(4)’s Expansion from Common Law
During the common law, it was limited to statements made for the purpose of treatment. The FRE expands it to cover statements made for the purpose of treatment. Some states reject this.
FRE 803(4)
Statement of Fault
While statements of fault are generally not admissible, many courts have admitted them in child abuse and domestic violence cases.
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 feelings, pain or bodily injury) 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.
Rationales for FRE 803(3)
- The dangers of mistaken perception and faulty memory are minimized.
- We don’t include statements of memory because our memories are constantly changing and we could make stuff up
- We don’t include statements of believe because we can convert our faulty memories into belief
- We have an exception for wills because we need to look at everything that’s relevant to make sure we’re acting how the deceased intended
Shepard v. United States
1933
Facts
The defendant was convicted of murdering his wife and appealed saying the court should not have let his wife’s statement in. The defendant entered evidence that his wife was suicidal. To counter that, the government entered evidence that before his wife died she said the defendant poisoned her The government entered the evidence on three theories
- Dying declaration
- To rebut she was suicidal
- FRE 803(3) – she believed in that moment that her husband poisoned her
Shepard v. United States
1933
Procedural History
The district court let the wife’s statement in under the dying declaration exception and the Tenth Circuit affirmed.
Shepard v. United States
1933
SCOTUS Ruling
The wife’s statement should not have been let in.
- It didn’t qualify as a dying declaration because she was not in fear of imminent death
- It might have been used as circumstantial evidence that the declarant had a will to live, but it was so prejudicial and accusatory that the judge should have kept it out under FRE 403
- FRE 803(3) didn’t apply because her statement was about what he husband did in the past
The FRE 803(3) hearsay exception cannot be used to prove past events
FRE 803(3)
Decision About Statements
It is for the judge to decide under FRE 104(a) whether the statement is about past conduct or past state of mind.