Hearsay Exceptions

Question 1

Present sense impression

Answer 1

A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay. Fed. R. Evid. 803(1).

Question 2

Excited utterance

Answer 2

A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay. Under this exception to the hearsay rule, the event must shock or excite the declarant, and the statement must relate to the event, but the declarant need not be a participant in the event (i.e., the declarant can be a bystander).

Question 3

Present sense impression distinguished from excited utterance

Answer 3

A present sense impression must be a description of the event, whereas an excited utterance need only relate to the exciting event.

Question 4

Statement of mental emotional or physical condition

Answer 4

A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition is not excluded as hearsay. Fed. R. Evid. 803(3).

Question 5

State of mind

Answer 5

A statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind. A statement of a memory or past belief is inadmissible hearsay when used to prove the fact remembered or believed, unless the statement relates to the validity or terms of the declarant’s will.

Question 6

Physical condition

Answer 6

When a declarant’s physical condition at a particular time is in question, a statement of the declarant’s mental feeling, pain, or bodily health made at that time can be used to prove the existence of that condition but not its cause.

Question 7

Statement Made for Medical Diagnosis or Treatment

Answer 7

A statement describing medical history or past or present symptoms is not excluded as hearsay if it is made for medical diagnosis or treatment. A statement of the cause or source of the condition is admissible as an exception to the rule against hearsay if it is reasonably pertinent to diagnosis or treatment. Fed. R. Evid. 803(4).

Question 8

Effect of physician-patient privilege

Answer 8

A statement that falls within this hearsay exception still may be inadmissible if it is protected by the physician-patient privilege.

Question 9

Statement made to a person other than a physician

Answer 9

The statement need not be made to a physician to fall under this exception. Statements to other medical personnel, including hospital attendants and ambulance drivers, or even to family members, may be included. Fed. R. Evid. 803(4), Notes of Advisory Committee.

Question 10

Statement made to nontreating physician

Answer 10

Statements made to a physician consulted only for the purpose of enabling the physician to testify at trial are admissible. Fed. R. Evid. 803(4), Notes of Advisory Committee on Proposed Rules, Exception (4); Fed. R. Evid. 703.

Question 11

Statement made by a person other than the patient

Answer 11

Under this hearsay exception, the statement need not necessarily be made by the patient, so long as it is made for the purpose of medical diagnosis or treatment. The relationship between the declarant and the patient usually determines admissibility—the closer the relationship, the stronger the motive to tell the truth, and, as such, the more presumably reliable the statement. The court must assess the probative value of the statement pursuant to Rule 403, weighing that value against the risk of prejudice, confusion, or waste of time.

Question 12

Recorded Recollection

Answer 12

If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if the following foundation is established:

i) The record is on a matter that the witness once knew about;
ii) The record was made or adopted by the witness when the matter was fresh in the witness’s memory;
iii) The record accurately reflects the witness’s knowledge; and
iv) The witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand.

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

Question 13

Present recollection refreshed distinguished

Answer 13

An item—which need not be a writing—used to refresh a witness’s recollection is not admitted into evidence (see §III.C.1. Present Recollection Refreshed, supra), so there is no hearsay problem.

Question 14

Records of Regularly Conducted Activity (Business Records)

Answer 14

A record (e.g., memorandum, report, data compilation) of an act, event, condition, opinion, or diagnosis is not excluded as hearsay if:

i) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling;
ii) The making of the record was a regular practice of that activity; and
iii) The record was made at or near the time by (or from information transmitted by) someone with knowledge.

Although this exception is commonly referred to as the “business records” exception, it extends to any regularly conducted activity of an organization, including a nonprofit organization. Fed. R. Evid. 101(b)(4); 803(6)(A)–(C).

Question 15

Recorded recollection exception distinguished:

Answer 15

Unlike the recorded recollection exception, the business records exception does not require the inability to remember, but it does require that the record be kept in the course of a regularly conducted activity.

Question 16

Authentication of a business record

Answer 16

For the record to be admissible under the business records hearsay exception, the custodian of the record or other qualified witness may testify that the above requirements have been met. Alternatively, a record may be self-authenticated if properly certified (see § IV.A.2.e. Self-authenticating documents,

Question 17

Lack of trustworthiness of a business record

Answer 17

A business record that otherwise qualifies under this hearsay exception is nevertheless inadmissible if the opponent shows that the source of information for the record or the method or circumstances of its preparation indicate a lack of trustworthiness.

Question 18

Anticipation of litigation

Answer 18

Records prepared in anticipation of litigation, such as an employee’s accident report, may not qualify under this exception due to a lack of trustworthiness.

Question 19

Medical records

Answer 19

Medical records are considered business records to the extent that the entries relate to diagnosis or treatment. Statements related to fault associated with the cause of injury generally do not qualify under the business records exception.

Question 20

police report

Answer 20

A police report can qualify under the business records exception, but a statement made by a witness that is contained in the report does not generally qualify because the witness is not acting on behalf of the police in making the statement. The statement may, however, qualify under another hearsay exception, such as an opposing party’s statement.

Question 21

Abence of a record

Answer 21

Evidence that a matter is not included in a record of a regularly conducted activity may be admissible to prove that the matter did not occur or exist, provided that a record was regularly kept for a matter of that kind. The opponent may prevent admission by showing circumstances, including the possible source of the information, that indicate a lack of trustworthiness. Fed. R. Evid. 803(7).

Question 22

Public Records

Answer 22

A hearsay exception applies to a record or statement of a public office or agency that sets out:

i) The activities of the office or agency;
ii) An observation of a person under a duty to report the observation (except for an observation of a law enforcement officer offered in a criminal case); or
iii) Factual findings of a legal investigation, when offered in a civil case or against the government in a criminal case.

Question 23

Investigative reports

Answer 23

In addition to factual findings, opinions, evaluations, and conclusions contained in an investigative report that are based on factual findings are included in the public records exception.

Question 24

Lack of trustworthiness if public records

Answer 24

As with the business records exception, the court may exclude any evidence offered under this exception if the opponent shows that the source of the information or other circumstances indicate a lack of trustworthiness.

Question 25

Absence of a record

Answer 25

Similarly, testimony that a diligent search failed to disclose a public record or statement may be admitted to prove that the record or statement does not exist, or that a matter did not occur or exist, if a public office regularly kept a record of statements for a matter of that kind. In a criminal case, a prosecutor must provide the defense with written notice of the intent to offer such evidence at least 14 days before trial, and the defendant has seven days from receipt of notice to object in writing.

Question 26

Public records of vital statistics

Answer 26

A record of a birth, death, or marriage is not excluded as hearsay if the event is reported to a public office in accordance with a legal duty

Question 27

Learned Treatises

Answer 27

A statement contained in a treatise, periodical, or pamphlet is not excluded as hearsay if:

i) An expert witness relied on the statement during direct examination or it was called to the expert’s attention on cross-examination; and
ii) The publication is established as a reliable authority by admission or testimony of the expert witness, by another expert’s testimony, or by judicial notice.

If admitted, the statement is read into evidence, but the publication itself may not be received as an exhibit.

Question 28

Judgment of Previous Conviction

Answer 28

Evidence of a final judgment of conviction is not excluded as hearsay if:

i) The judgment was entered after a trial or guilty plea, but not a plea of no contest (i.e., nolo contendere);
ii) The conviction was for a crime punishable by death or imprisonment for more than one year; and
iii) The evidence is offered to prove any fact essential to sustain the judgment.

If the prosecutor in a criminal case offers evidence of a final judgment of conviction for a purpose other than impeachment, the judgment must have been against the defendant. The pendency of an appeal may be shown but does not affect admissibility. Fed. R. Evid. 803(22).

Question 29

Traffic offense

Answer 29

A driver’s guilty plea to a traffic offense that is punishable by a fine or imprisonment for one year or less cannot be used as evidence of the driver’s negligence under this hearsay exception.

Question 30

Other exceptions

Answer 30

i) A statement concerning personal or family history, such as a birth, death, marriage, or divorce contained in a regularly kept record of a religious organization (Fed. R. Evid. 803(11));
ii) A statement of fact in a marriage or baptismal certificate (Fed. R. Evid. 803(12));
iii) A statement of fact about personal or family history contained in a family record, such as a Bible or an engraving on a ring (Fed. R. Evid. 803(13));
iv) Records of, and statements in, documents affecting an interest in property (Fed. R. Evid. 803(14), (15));
v) Statements in ancient documents (i.e., authenticated documents prepared before January 1, 1998) (Fed. R. Evid. 803(16));
vi) Market reports and similar commercial publications generally relied upon by the public (Fed. R. Evid. 803(17));
vii) Reputation concerning personal or family history, boundaries or general history, or character (Fed. R. Evid. 803(19)–(21)); and
viii) A judgment admitted to prove a matter of personal, family, or general history or a boundary, if the matter was essential to the judgment and could be proved by evidence of reputation. Fed. R. Evid. 803(23).