Hearsay Exceptions: Declarant's Availability Immaterial

Exceptions: Declarant’s Availability Immaterial

The following statements are hearsay exceptions that do not require the declarant to be unavailable: (1) excited utterance; (2) present sense impression; (3) present state of mind or condition; (4) statements made for purposes of medical diagnosis or treatment; (5) business records; (6) public records and reports; (7) recorded recollection; (8) learned treatises; (9) ancient documents; (10) documents affecting party interests; (11) reputation; (12) family records; and (13) market reports

Excited Utterances

An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event, is admissible

Present Sense Impressions

A present sense impression is a statement that describes or explains an event or condition and is made while or immediately after the declarant perceives the event or condition.

Present State of Mind or Condition, generally

A statement of the declarant’s then-existing state of mind, including motive, intent, or plan, or their emotional, sensory, or physical condition is admissible. Except as to certain facts concerning the declarant’s will, a statement of memory or belief is not admissible to prove the truth of the fact remembered or believed

Present State of Mind: Statement of Intent

“state of mind” includes statements about the declarant’s intent to do something in the future, including the intent to engage in conduct with another person

Statement for Medical Diagnosis or Treatment, generally

A statement that describes a person’s medical history, past or present symptoms, or the inception or general cause of the symptoms is admissible if it was made for and reasonably pertinent to medical diagnosis or treatment. This includes descriptions of others when the declarant is seeking treatment for the other person. Making the statement to medical personnel is not strictly required.

Medical Diagnosis Statements and Expert Witnesses

Statements are admissible under the medical diagnosis or treatment exception even where the declarant was speaking to a physician who retained for the sole purpose of testifying as an expert witness

Business Records Exception, generally

Any writing or record made as a memo of any act, event, condition, opinion, or diagnosis is admissible as proof of the occurrence if the following elements are met: (1) the record was made by a “business”, including organizations, occupations, callings, and nonprofits; (2) the entry was (a) made in the regular course of business and (b) the business regularly keeps such records; (3) the entry was made near the time of the event; and (4) the record consists of matters within the personal knowledge of the entrant, or within the knowledge of someone with a duty to transmit such matters to the entrant

Required Foundation for Business Records

The authenticity of the record must be established by a sponsoring witness, who can be a custodian of records or anyone in the business who is knowledgeable about the business’s recordkeeping, and who does not have to be the actual entrant. This can be accomplished by the records custodian: (1) testifying that the records meets the elements of the business records exception; or (2) certifying in writing that the record meets the elements of the exception

Business Records to prove Nonoccurrence

A business record that meets all requirements may also be used to prove the nonoccurrence or nonexistence of a matter if it was the regular practice of the business to record all such matters

Business Records: Excluding for Lack of Trustworthiness

Even if a business record meets all the exceptions, it still may be excluded by the court if the opponent makes a showing that the circumstances of the record indicate a lack of trustworthiness

Public Records: Types of Records Admissible

(1) records setting forth the activities of the office or agency; (2) records of matters observed pursuant to a duty imposed by law, but not including police observations in criminal cases; and (3) in civil actions and against the government in criminal cases (but not the defendant), records of factual findings resulting from an investigation authorized by law

Requirements of a Public Record

The writing must have been made by and within the scope of the duty of the public employee and it must have been made at or near the time of the event

Limitations on Law Enforcement Records as Business/Public Records

Public records and reports are generally not admissible against the defendant in a criminal case, including investigative reports. Most courts have held that these records also can’t be admitted against a criminal defendant under the business records exception

Public Records of Vital Statistics

Records of vital statistics are admissible if reported a public office in accordance with a legal duty

Statement of Absence of Public record

Evidence in the form of testimony or a certification from the custodian or other qualified person that they have diligently searched and failed to find a record is admissible to prove that the matter was not recorded or to infer that the matter did not occur. A criminal defendant has a confrontation right to demand the presence of the person who prepared the certification.

Statement of Absence of Public Record in Criminal Cases

Only admissible in the form of certification if the prosecution notifies the defense at least 14 days prior to trial and the defense does not object in writing within 7 days of receiving notice. This does not apply if the custodian or other qualified person testifies and is subject to cross-examination.

Public Records: Judgments

A certified copy of a judgment is always admissible proof that such judgment has been entered, but some specific adjudicated facts might not be admisisble

Public Records: Prior Criminal Conviction: Felony Conviction

A judgment of a felony conviction is admissible in criminal and civil actions to prove any fact essential to the judgment. In a criminal case, the government may use the judgment for this purpose only against the accused, and can only use the judgment for impeachment purposes against others.

Public Records: Prior Criminal Acquittal

The public records exception does not apply to records of prior acquittals.

Public Records: Judgment in Prior Civil Case

A civil judgment is inadmissible in a subsequent CRIIMINAL proceeding because of the different standards of proof. It is also generally inadmissible in subsequent civil proceedings, unless, under the FRE, it is admitted to prove matters of personal or family history or boundaries of land.

Recorded Recollection

A recorded recollection is admissible hearsay only if the testifying witness’s memory cannot be revived. The record can only be read into evidence but cannot be admitted as an exhibit unless offered by an adverse party

Learned Treatises

Statements contained in a learned treatise are admissible as substantive proof if: (1) the treatise is established as reliable authority; and (2) the excerpt is relied upon by an expert during direct examination or brought to an expert’s attention during cross. If admitted, such statements may be read into evidence but not received as an exhibit.

Ancient Documents

Statements in any authenticated document prepared before January 1, 1998 are admissible

Documents Affecting Property Interests

A statement in a document affecting an interest in property is admissible if the statement is relevant to the document’s purpose. This exception will not apply if later dealings with the property are inconsistent with the truth of the statement asserted or the intent of the document

Reputation Exception

Reputation evidence is admissible to prove: (1) character; (2) personal or family history; (3) land boundaries; and (4) a community’s general history

Family Records Exception

Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc. are admissible

Market Reports Exception

Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation

Residual Catch-All Exception

Hearsay not covered by a specific exception may be admitted if: (1) it possesses sufficient guarantees of trustworthiness, considering (a) the totality of the circumstances in which the statement was made; and (b) any evidence that corroborates the statement; (2) it is strictly necessary in that it is more probative as to the fact for which it is offered than any other evidence that the proponent can reasonably product; and (3) the proponent gives reasonable notice to the adversary of their intent to offer the statement; including (a) the substance of the statement; and (2) the name of the declarant. This notice generally must be given in writing in advance of the trial or hearing

Hearsay and the Confrontation Clause

In a criminal case, hearsay offered against a defendant will not be admitted, regardless of exceptions, where: (1) the declarant is unavailable; (2) the statement is testimonial in nature; and (3) the accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial. A criminal defendant forfeits this right if they committed a wrongful act that was intended to prevent the witness from testifying

Confrontation Clause Exception: “Testimonial” Statements

This includes sworn testimony as well as some statements made to law enforcement and certain documents

Statements made to LEOs to aid in an ongoing emergency

If the primary purpose of a police investigation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial (such as 911 calls during ongoing crimes.) In determining whether an ongoing emergency existed at the time of interrogation, relevant factors include: (1) the nature of the dispute (public vs private); (2) whether the perpetrator is still at large; (3) the scope of the threat to the victim and to the public; and (4) the type of weapon involved

Statements Given to LEOs for Later Prosecution

When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, the statements are generally testimonial. Exception: statements by a young child abuse victim to a school teacher about the abuse

Confrontation Exception: Affidavits or Written Reports of Forensic Analysis

Affidavits, certificates, or other written reports that summarize the findings of forensic analysis and have the effect of accusing a targeted individual of criminal conduct, such as fingerprint test results, are testimonial. Testimony by the analyst’s supervisor who was not involved in the testing is not sufficient. However, these reports may be used for nonhearsay purposes. There is no confrontation clause violation if a forensic expert, while testifying as to their independent analysis of data, makes only a general reference to a nontestifying analyst’s report to demonstrate a partial basis for their opinion.

Due Process and Hearsay Exceptions

Hearsay rules and other exclusionary rules of evidence cannot be applied where such application would deprive the accused of their to a fair trial or deny their right to compulsory process