R803: HEARSAY EXCEPTION. The Declarant's availability is immaterial
The exceptions rest on the assumption that declarants making these types of statements do not have the time or mental capacity to reflect on the situation and formulate a lie about what happened; thus, they are more reliable than other types of hearsay. Merritt page 524
803(1) Declarant makes the statement while perceiving the event, or condition, or right after
803(2) The declarant makes statement while excited by the event. The declarant is excited, startled or under stress.
"My dad is hitting my mom and she is crying"
"watch out, he's got a gun!"
R803 (16): admits “ancient documents,” documents that were prepared before 1998 and have been properly authenticated. The exception, however, does not encompass hearsay contained within the documents; separate exceptions must support the admission of any hearsay within hearsay. (Merritt page 622).
R803(3)
Declarent's existing state of mind (intent, motive or plan)
Declarent's emotional, sensory or physical condition
(mental feeling, pain, or bodily health).
If none of the above, is there another exception or exclusion that applies?
statements expressing the declarant's current state of mind or mental or physical condition.
including for medical & medical diagnosis.
statement is NOT one of memory or belief offered to prove fact remembered or believed
Statement relates to the execution, revocation, identification, or terms of declarant's will.
R803(4) Statement made for medical diagnosis / treatment and describes medical history, or past, or present symptom, pain or sensation and is REASONABLY PERTINENT to diagnosis or treatment
R803(17) admits directories, lists, and other published compilations if they are generally relied on by the general public or by people in a specific occupation.(Merritt page 622).
R612 & R 803(5)-(8) Writing that is used to refresh memory such as recorded recollections, records of regularly conducted activity, absence of entry into records, public records and reports
R803(6): Admits Business Records. Broad Definition of “Business”. Record Must Be Kept in the Course of a Regularly Conducted Business Activity.
Must Be Regular Practice to Keep Record. Trustworthiness Caveat Bars Records Made in Anticipation of Litigation. Double Hearsay Issues.
R803(8): allows parties to admit the records of any public office or agency, providing the record falls into one of three categories: (1) records of an agency’s activities; (2) records of observations that the agency had a legal duty to report; or (3) reports of a legally authorized investigation.
Many records falling in the latter two categories, however, are not admissible against the defendant in a criminal case. The neutrality of these records is suspect and, at least under some circumstances, their admission would violate the criminal defendant’s Sixth Amendment right to confront his accusers. (Merritt page 607).
R803(7): Absence of a regularly conducted activity
R805 :allows introduction of a recorded recollection. The recollection must appear in a “record” and the witness must be the declarant who made or adopted the recording. In addition, the witness must once have had personal knowledge of the details in the recording; must have made or adopted the record when the memory was still fresh; and must testify that she believed the record was accurate at the time it was made or adopted. Merritt page 569.
Multiple layers of hearsay are admissible as long as layer fits within an exception.
evidence admitted to prove matter did not occur or exist
record was regularly kept for a matter of that kind
the opponent does not show that the possible source of thevinformation or other circumstance indicates a lack of trustworthiness
R803(7)
R803(10)
R803(18) admits “learned treatises,” texts that are considered reliable and authoritative in a given field. Usually an expert witness certifies the text as reliable, although the judge sometimes takes judicial notice of that fact. A party cannot introduce the text itself into evidence. Instead, the party must use the treatise while examining or cross-examining an expert witness. In response to the lawyer’s questions, the witness may read portions of the treatise into evidence.(Merritt page 622).
R803(3) & 803(4)
R803(7), R803 (10),
R803(16), R803(17), R803(18)
R803(1) & R803(2)
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