Hearsay Exceptions: Declarant Availability Immaterial (FRE 803) & Double Hearsay

What is hearsay?

An out-of-court statement offered to prove the truth of the matter asserted.

Why is hearsay generally excluded?

The declarant cannot be cross-examined about perception, memory, sincerity, or ability to communicate, and the jury cannot assess the declarant’s demeanor.

Must the declarant be unavailable for a Rule 803 hearsay exception to apply?

No. The declarant’s availability is immaterial.

What is an excited utterance?

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

Must an excited utterance be made immediately after the event?

No. The key is whether the declarant was still under the stress of excitement.

What is a present sense impression?

A statement describing or explaining an event or condition, made while perceiving it or immediately afterward.

Must the event be startling for a present sense impression?

No.

What is the key difference between an excited utterance and a present sense impression?

An excited utterance requires a startling event and continuing stress; a present sense impression requires a description made during or immediately after perception.

What does the then-existing state of mind exception cover?

Statements of the declarant’s current motive, intent, plan, emotion, sensation, or physical condition.

Does the then-existing state of mind exception generally cover memories of past events?

No. It generally concerns a condition existing when the statement was made.

Must a statement of present physical condition be made to a doctor?

No. For example, “My neck hurts” may qualify even if said to a friend.

What does the medical diagnosis or treatment exception cover?

Statements reasonably pertinent to diagnosis or treatment about medical history, past or present symptoms, or their general cause.

Can a statement about a past symptom qualify under the medical diagnosis or treatment exception?

Yes.

Must a statement for medical diagnosis or treatment be made to a medical professional?

No, if it is made for and reasonably pertinent to diagnosis or treatment.

Does the medical diagnosis or treatment exception usually include statements assigning fault?

No. Identifying who was to blame is ordinarily unnecessary for diagnosis or treatment.

Which part of “My neck hurts because I was in a car accident caused by Danny” ordinarily qualifies for medical treatment?

The neck pain and the accident as its general cause; Danny’s fault ordinarily does not.

What is the basic rationale for the business records exception?

Records made and kept routinely by people with a duty to do so are generally considered reliable.

When must a business record be made?

At or near the time of the event it records.

Who must supply the information in a business record?

Someone with personal knowledge and a business duty to record or transmit the information.

Must a “business” be a for-profit company for the business records exception?

No. The exception can cover organizations, professions, and nonprofits.

Can an otherwise qualifying business record be excluded?

Yes, if its source or the circumstances of its preparation indicate a lack of trustworthiness.

What is a public record for hearsay purposes?

A record or statement of a public office that meets the applicable requirements of the public records exception.

Can police observations in a public record generally be offered against a criminal defendant under the public records exception?

No.

What is recorded recollection?

A record about a matter the witness once knew but now cannot recall well enough to testify fully and accurately.

When must a recorded recollection have been made or adopted?

When the matter was fresh in the witness’s memory and the witness knew the record was accurate.

How is a recorded recollection generally presented to the jury?

It may be read into evidence; the exhibit itself is received only if offered by an adverse party.

What is the date requirement for the ancient documents hearsay exception?

The authenticated document must have been prepared before January 1, 1998.

What is the residual hearsay exception?

A limited exception for certain trustworthy statements that do not fall under a specific exception, subject to the rule’s requirements, including notice.

What is hearsay within hearsay?

An out-of-court statement that contains another out-of-court statement offered for its truth.

How is hearsay within hearsay admitted?

Each hearsay layer must independently qualify as nonhearsay or fall within a hearsay exception.

A hospital record says, “Patient reports a monkey bite.” What are the two hearsay layers?

The hospital record may qualify as a business record; the patient’s statement may qualify as a statement for medical diagnosis or treatment.