Exceptions to hearsay

What does the intro phrase of FRE 803 mean: "regardless of whether the declarant is available as a witness"?

Satisfying the foundational requirements for a hearsay exception is NOT an automatic ticket to admissibility.

FRE 801 applies when who is present in court?

FRE 801 applies when the maker of the out of court statement is present in court as a witness or party.

FRE 803 admits statements from declarants whose presence in court is what?

FRE 803 admits out of court assertions from declarants whose presence in court is immaterial.

Under FRE 803 and 804, does the fact finder have to accept the statement as truth?

No. Something about the circumstances makes these statements reliable — but fact finder does NOT have to accept it as truth. Evidence is just admissible.

What is the common thread of trustworthiness across FRE 803 exceptions?

Situations defined by the exceptions are widely disparate. Circumstances which assertions are made may be very different but still satisfy the foundational requirements. Some of the exceptions are probably at least as much a product of folklore and tradition as empirical reality.

How should you respond to a "self-serving" objection under FRE 803?

Self-serving = objections may be the equivalent of a claim that a party's own hearsay statement is motivated by self-interest and is unworthy of belief. Parties do not offer hearsay statements unless they are self-serving.

What are the 5 steps of the Confrontation Clause check in criminal cases?

(1) Is it a criminal case? (2) Is it being offered by the prosecution? (3) Is it being offered by the prosecution as hearsay? (offered for the truth) (4) Is it testimonial? (5) Even if all the elements are met, was/is there an opportunity for the defendant to cross-examine the declarant? (if no → confrontation clause violation)

What is the rule text of FRE 803(1) — Present Sense Impression?

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

Under FRE 803(1), foundational element 1 requires the statement to be made when?

The declarant made the statement while or immediately after perceiving an event or condition.

Under FRE 803(1), foundational element 2 requires the statement to do what?

The statement describes or explains the event or condition.

Under FRE 803(1), foundational element 3 requires what kind of knowledge?

Personal knowledge — describing an event or condition immediately or within seconds.

What do FRE 803(1) and 803(2) have in common?

FRE 803(1) & (2) — authorize the admission of hearsay statements that declarants make roughly contemporaneously with the events or conditions that the statements describe.

Does 803(1) require first-hand knowledge?

Declarant needs to have first-hand knowledge — advisory committee = personal knowledge is an implicit requirement.

What is the timing requirement for 803(1)?

Must be made during or immediately after an event — requires substantial contemporaneity.

Give an example of a present sense impression.

Dario saw Leticia walk past her window and called out to her roommate that Leticia just walked by our home. = Present sense impression — describes an event and witness made it while perceiving the event.

What is the rule text of FRE 803(2) — Excited Utterance?

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

Under FRE 803(2), foundational element 1 requires the statement to relate to what?

The declarant made a statement relating to a startling event or condition.

Under FRE 803(2), foundational element 2 requires the declarant to be in what state?

The declarant was under the stress of excitement caused by the event or condition at the time the declarant made the statement.

Under FRE 803(2), foundational element 3 requires what?

Personal knowledge.

Under FRE 803(2), is the "startling event" element objective or subjective?

Startling event = objective — would a reasonable person find the situation a startling event?

Under FRE 803(2), is the "under stress" element objective or subjective?

Declarant is under stress caused by the startling event (subjective — declarant has to be personally startled).

How is 803(2) broader than 803(1)?

803(2) = broader than 803(1): latter requires that a statement describe or explain an act or condition, while for the former a statement needs only to relate to an event or condition.

How is the time lapse measured for excited utterances?

Allowable time lapse not measured just by the clock but about a judge's conclusion about how startling an event was and the duration of a declarant's state of excitement.

What is an "outcry" in the context of 803(2)?

Outcry = 911 operator; comes in because of excited utterances relating to a startling event.

Does an exclamation point always indicate an excited utterance?

Be aware of the exclamation point — it does NOT always indicate an excited utterance!

What is the rule text of FRE 803(3) — Then-Existing State of Mind?

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.

Under FRE 803(3), foundational element 1 requires the statement to identify what?

A statement identifies a declarant's concurrently existing state of mind, emotion, sensation, or physical condition.

Under FRE 803(3), foundational element 2 limits proving the fact that produced the state of mind to what situation?

The offeror of the statement seeks to prove the fact that produced the state of mind only if it is relevant to issues surrounding the declarant's will.

Under 803(3), what is the difference between direct and circumstantial evidence?

Declarant's state of mind: Direct evidence — statement of intent is relevant if you believe it. Circumstantial evidence — infer; not direct evidence that he is going there or went there.

What does "then existing" mean under 803(3)?

Then existing: mental, emotional, or physical condition — how the person is thinking, feeling, at the time they were making the statement.

How can 803(3) be used to show another person was present?

Meeting another person — (statement of intent) show that the declarant, witness, and defendant was there. Not what the other did or didn't do — just that they were there.

Under 803(3), what is the difference between inner world and outer world assertions?

FRE 803 distinguishes assertions of fact about the world OUTSIDE a declarant from assertions describing a declarant's INNER world. Ex: J pleads self-defense for murdering G. J told R that 'I'm really afraid of Gene. He always carries a gun and threatened to kill me.' Inner world assertion = J fears G → admissible for its truth under FRE 803(3). Outer world statement: G always carries a gun and threatened to kill J → NOT admissible under FRE 803(3).

What did Mutual Life Ins. Co. v. Hillmon hold about 803(3)?

Letters admissible to prove that Walter accompanied Hillmon to Crooked Creek. An assertion of a declarant's concurrently existing intention to perform a future act is admissible to prove that the declarant followed through and did it.

What does 803(3) specifically exclude?

FRE 803(3) specifically excludes 'a statement of memory or belief to prove the fact remembered or believed.' Limitation is necessary because every assertion from the outside world reflects a declarant's then-existing inner belief.

Can a judge exclude a statement that satisfies 803(3) on trustworthiness grounds?

Trustworthiness: judge might exclude an assertion that satisfies FRE 803(3) because of a declarant's apparent contemporaneous motive to fabricate.

Which hearsay dangers are absent under 803(3)?

Absent: Memory — condition or belief exists simultaneously with the statement; perceptual problems — declarants are more reliable observers and reporters of their inner self than the outside world.

Which hearsay dangers remain under 803(3)?

Admitting state of mind does not obviate two hearsay dangers: Ambiguity; Sincerity.

What is the rule text of FRE 803(4) — Medical Diagnosis or Treatment?

A statement that: (A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Under FRE 803(4), foundational element 1 requires the statement to be made for what purpose?

The declarant made a statement for the purpose of obtaining medical treatment or seeking a diagnosis.

Under FRE 803(4), foundational element 2 requires the information to be what?

The information in the statement is reasonably pertinent to diagnosis or treatment.

Under FRE 803(4), foundational element 3 limits the statement to what subject matter?

The statement concerns the declarant's medical history, past or present symptoms, pain or sensations, or inception or general character of the cause or external source of the declarant's medical condition.

Why are statements for medical treatment considered reliable under 803(4)?

Reliability: people are truthful when talking about their medical diagnosis or treatment.

Can a statement under 803(4) attribute fault or blame?

Statement cannot attribute fault or blame — statements pertinent to the issue of diagnosis or treatment only.

Under 803(4), who can the medical statement be made to?

ANYONE — does not have to be a doctor.

Is 803(4) a one-way or two-way exception?

One-way exception: medical hearsay exception applies to statements from PATIENTS TO MEDICAL PERSONNEL.

What did United States v. Tome require for 803(4)?

Requires both the patient's subjective belief that the information is pertinent to diagnosis or treatment AND objective reasonableness of that belief.

Under 803(4), does the person receiving the statement need to be the person getting medical attention?

Nothing in the rule stating that the person getting the medical statement is the person getting medical attention.

What is the rule text of FRE 803(5) — Past Recollection Recorded?

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. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Under FRE 803(5), foundational element 1 requires the declarant to have what?

The declarant has personal knowledge of a matter.

Under FRE 803(5), foundational element 2 requires the declarant's recollection to be what?

The declarant has insufficient recollection to testify about the matter fully and accurately.

Under FRE 803(5), foundational element 3 requires what kind of document?

Memorandum or record concerning the matter, or declarant adopted the memo or record prepared by others.

Under FRE 803(5), foundational element 4 requires the matter to be what at the time the record was made?

Matter was fresh in the declarant's memory at the time the memo or record was made or adopted.

Under FRE 803(5), foundational element 5 requires the declarant to testify to what?

Declarant testifies that the memo or record is accurate.

Under FRE 803(5), foundational element 6 — who can read the record into evidence and who can offer it as an exhibit?

The offering party can read the contents of an admissible memo or record to a judge or jury. Only the adverse party can offer the memo or record into evidence.

Under FRE 612, what right does the adverse party have?

A writing is used to refresh a declarant's recollection while or before testifying. Adversary can demand to have a writing produced at the hearing, to inspect it, to cross-examine the witness, and to introduce in evidence the portions which relate to the testimony of the witness.

Does FRE 803(5) require the declarant to testify?

FRE 803(5) requirements — requires the declarant testify.

What are the two ways to refresh a forgetful witness's recollection?

(1) Questioners can use leading questions to remind witness of the forgotten information. (2) Showing the witness a document that refers to the forgotten information. Can use any document to refresh recollection. Document does not need to be admissible in evidence or authored by the testifying witness. Testifies from present memory, not to the contents of the document.

Under FRE 612, the witness testifies from what — present memory or the document?

Under 612 — the witness is testifying from their present memory, not to the content in the document.

Under FRE 803(5), why isn't the written record received as an exhibit unless offered by the adversary?

Under 803(5) — the written memorandum or record itself is not received in evidence unless offered by the adversary. Avoids giving an unfair advantage to a party whose witness lacks sufficient memory to testify from present recollection. Jury can deliberate and examine the documents = undue influence.

How do FRE 803(5) and 803(1) compare on timing?

FRE 803(1) — statement made immediately after. FRE 803(5) — made when matter was fresh. Short time frame = rids of memory problem & reduces declarant's chance to reflect/make up a lie.

What is the trustworthiness requirement for 803(5)?

Declarant has to testify that the written statement was correct at the time the declarant made the statement. Ability to cross-examine is not there. Witness = declarant — cannot remember much about the situation.

How much memory loss is needed for 803(5)?

No need to be devoid of memory — need insufficient recollection to testify fully and accurately.

What did United States v. Senak hold about 803(5)?

Upheld a trial court's ruling that a written statement given by a declarant to an FBI agent describing a conversation that occurred 3 years earlier. Made at the time event was fresh in the declarant's memory = declarant's recorded recollection.

Is there a confrontation clause issue with 803(5)?

No issue with the confrontation clause when using it, the declarant has to be there.

If someone else wrote down the statement, can it qualify under 803(5)?

If someone else wrote it down but you adopted it as your statement = past recollection recorded. Cannot come in if it was not recorded.

Why does a questioner need to be careful when using a document to refresh recollection?

Questioner needs to be careful not to use a document that contains harmful or embarrassing information.

What is the rule text of FRE 803(6) — Business Records?

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 Rule 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 is FRE 803(7) used for?

Evidence that a matter is not included in a record described in paragraph (6) — used to show that something did not happen.

Under FRE 803(6), foundational element 1 requires what kind of entity to produce what?

A business entity (broadly defined) produces a memorandum, report, record, or data compilation in any form of acts, events, conditions, opinions, or diagnoses concerning the entity's business practices.

Under FRE 803(6), foundational element 2 requires who to contribute the information?

Entity representatives with personal knowledge contributed the information contained in the memorandum, etc.

Under FRE 803(6), foundational element 3 requires the information to be recorded when?

The representatives recorded the information at or near the time that business-related activity occurred.

Under FRE 803(6), foundational element 4 requires making the record to be what?

The entity's regular business practice is to prepare the memorandum, report, record, or data compilation.

Under FRE 803(6), foundational element 5 requires the contents to relate to what?

The acts, events, conditions, opinions, or diagnoses relate to a regularly conducted business activity.

Under FRE 803(6), foundational element 6 requires who to show all the conditions are met?

The elements above are shown by the testimony of a custodian or other qualified witness, or by a certification that complies with Rule 902(11) or (12).

What types of entities does FRE 803(6) cover?

Business, institution, association, profession, occupation, calling of every kind — whether or not conducted for profit (church, synagogue).

Why are business records necessary as a hearsay exception?

Necessary: numerous employees contribute to business records. Impossible to require testimony from all employees with personal knowledge of the transaction-related events.

Why are business records considered trustworthy?

Trustworthiness: regularity of record keeping & commercial reality.

What did Palmer v. Hoffman hold about business records?

Written statement needs to be made in the regular course of business. Documents not made in regular course = calculated for court proceedings — NOT admissible.

What is the double hearsay problem with business records?

Johnson v. Lutz: cannot offer reports containing double hearsay. Outsider statements are excluded under FRE 803(6). FRE 805 – not excluded just because it is double hearsay as long as you have another exception or exemption that allows that statement/record in.

What does a custodian of records do for 803(6)?

Testifies to an entity's practices and procedures regarding the preparation and maintenance of records. Custodians typically have no firsthand knowledge of the events described in particular records. However, their testimony describing an entity's usual record-keeping procedures and the conformity of the records produced in court to those procedures assures a judge that the records are trustworthy.

How can business records be authenticated without a custodian appearing in court?

Rule 902 subsections create additional hearsay exceptions that enable domestic and foreign businesses to establish the elements of a business record with a short written certificate — spares organizations from sending a custodian to court.

Under 803(6), who has the burden of showing a business record is untrustworthy?

Business records are inadmissible if 'the source of information or the method or circumstances of preparation indicate lack of trustworthiness.' The onus is on the party seeking to EXCLUDE the business record to convince the judge it is untrustworthy.

How do 803(6) and 803(8) relate?

Any type of government record = public record.

Is 803(6) all or nothing?

Not an all or nothing.

Are business records testimonial for the confrontation clause?

Not made for use at a later trial = non-testimonial.

What is the rule text of FRE 803(8) — Public Records?

A record or statement of a public office if: (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 civil 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 is FRE 803(10) — Absence of a Public Record?

Testimony — or a certification under Rule 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.

Under FRE 803(8), foundational element 1 requires the records to be those of what?

Records, reports, statements, or data compilations in any form are those of a public office or agency.

Under FRE 803(8), foundational element 2(i) requires the record to set forth what?

The records set forth the activities of the agency or office.

Under FRE 803(8), foundational element 2(ii) requires the record to set forth what?

Matters that an agency or office has a legal duty to report (except for law enforcement reports in criminal cases).

Under FRE 803(8), foundational element 2(iii) requires the record to set forth what?

In civil cases and against the government in criminal cases, factual findings resulting from an investigation carried out pursuant to legal authority.

Under FRE 803(8), foundational element 3 puts the burden on whom?

The opponent does not show that the source of information or circumstances indicate a lack of trustworthiness.

Why are public records trustworthy?

Based on public employees' duty to accurately report and record information in the course of carrying out government duties.

Why are public records necessary as a hearsay exception?

To require parties to bring numerous public employees who contribute information in the public records — burdensome and impossible. No mention of regularity (unlike 803(6)).

What does 803(8)(A)(i) cover and what are examples?

Applies to written records of the activities of a public office or agency. Parking tickets, Moving violations, Invoices, Receipts.

What does 803(8)(A)(ii) cover?

Applies to records of matters observed by public servants pursuant to their official duty to observe and report. Matters observed: public employees must have personal knowledge of the information in their reports.

Give examples of admissible reports under 803(8)(A)(ii).

Admissible reports pertaining to infinite variety of tasks that public employees carry on as part of their duties: Health inspector observation of conditions in a restaurant; Housing inspector's report about condition of heaters; Police officer's report indicating length of skid marks.

Under 803(8)(A)(ii), what is the law enforcement limitation in criminal cases?

Government CANNOT offer reports pertaining to matters observed by police officers & law enforcement personnel against defendants in criminal cases (no public records). Summarize witness interviews. Describe other investigative information.

Under 803(8)(A)(iii), who can offer factual findings from investigations?

Admissible in civil cases or criminal cases if offered by the defendant against the government. One-shot investigations: admissible.

What did Beech Aircraft v. Rainey hold about 803(8)(A)(iii)?

Naval report of a crash is admissible. Factual findings v. opinions: 'Liberal thrust' — as long as the conclusion is based on a factual investigation and satisfies the rule's trustworthiness requirement, it should be admissible along with other portions of the report.