Hearsay Exceptions

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Hearsay Exceptions

• Rule 803

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Hearsay Flowchart Review

• Is it a statement?
• Was it spoken out of court?
• Is it being offered for its truth?
• Is it exempt defined as non-hearsay by Rule
  801(d)?
• Does it fall into an exception from the rule of
  categorical inadmissibility set forth in Rule 802?

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Hearsay Exceptions

• Rule 803 Availability of declarant immaterial
  (23 of these)
• Rule 804 Declarant must be unavailable (4 of
  these)
• 807 Residual exception

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803(1) (2)

• Present Sense Impression
• Statement describing
• Event or condition
• Made while declarant perceived it or immediately
  thereafter.

• Excited Utterance
• Statement relating to
• Startling event or condition
• Made while declarant was under stress of
  excitement. . . .

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Hearsay Dangers

• Perception
• Memory
• Narration/communication
• Sincerity/veracity

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Present Sense Impressions vs. Excited Utterances
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803(3) Contemporaneous Statements of Mental,
Emotional, or Physical Condition

• Mental/Emotional
• Contemporaneous statement.
• Inadmissible to prove a fact remembered or
  believed (Shepard).
• May be admissible to prove conduct in accord with
  intent (Hillmon).

• Physical
• Contemporaneous statement.
• Does not apply to descriptions of past pain or
  symptoms.
• Does not apply to explanations of how an injury
  occurred.

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. . . But not including . . .

• A statement of the declarants then existing
  state of mind . . . but not including a statement
  of memory or belief to prove the fact remembered
  or believed. . . .

• The blue car ran the red light.
• I remember that the blue car ran the red light.
• I believe that the blue car ran the red light.

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Examples Mental/Emotional

• I am happy today.
• I was happy yesterday.
• I believe Mary lives at the beach.
• I intend to visit Mary at the beach.
• I remember visiting Mary at the beach.
• I like Mary.
• Mary is a nice person.

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Examples Physical

• Ouch!
• My knee hurts.
• My knee hurt yesterday.
• I skinned my knee on some coral while I was
  visiting Mary at the beach.
• My foot hurts like I have a metatarsal stress
  fracture.

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Mutual Life Ins. Co. v. Hillmon

• Mrs. Hillmons theory The dead body belongs to
  Mr. Hillmon. She wants the insurance money.
• Insurance companys theory Insurance fraud.
  Mr. Hillmon faked his own death in order to get
  the insurance money. He knew his widow would
  need to produce a body, so he lured Mr. Walters
  to Crooked Creek, and killed Mr. Walters.
• Disputed evidence Letter from Mr. Walters
  Mr. Hillmon and I are going to Colorado.

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What about these cases?

• Im going to the rave tonight with Ken, Lisa,
  Mary, Ned, Olaf, and Pauline.
• To show that I went to the rave?
• To show that Ken went to the rave?
• Should it make a difference if independent
  evidence shows that I went to the rave?
• Snookums and I are going to Aruba for a romantic
  weekend.
• To show that I went to Aruba?
• To show that Snookums went to Aruba?
• Should it make a difference if independent
  evidence shows that I went to Aruba?

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803(4) Statements for Purposes of Medical
Diagnosis or Treatment

• Medical diagnosis or treatment
• Describing medical history, past or present
  symptoms, pain or sensations, or cause if its
  relevant to treatment

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Examples

• Doctor, my knee hurts.
• Nurse, my knee hurts.
• Doctor, my knee hurt yesterday.
• Doctor, I was stung by a jellyfish while I was
  visiting Mary at the beach.
• Doctor, Mary was stung by a jellyfish at the
  beach.

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Mental or Physical Condition
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803(5) Past Recollection Recorded

• Memorandum or record
• Witness once had knowledge
• Witness now has forgotten
• Made or adopted by the witness
• At a time when the matter was fresh in his/her
  memory
• Record accurately reflects that knowledge

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803(6) Business Records

• Memorandum, report, record, or data compilation,
  in any form,
• Of acts, events, conditions, opinions, or
  diagnoses,
• Made at or near the time
• By, or from information transmitted by, a person
  with knowledge,
• If kept in the course of a regularly conducted
  business activity,
• And if it was the regular practice of that
  business activity to make the memorandum . . .
• All as shown by the testimony of the custodian or
  other qualified witness, or by certification. . .
  .
• Unless the source of information or the method or
  circumstances of preparation indicate lack of
  trustworthiness.
• The term business. . . includes business,
  institution, association, profession, occupation,
  and calling of any kind, whether or not conducted
  for profit.

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803(8) Public Records

• Records, reports, statements, or data
  compilations, in any form,
• Of public offices or agencies
• Setting forth
• The activities of the office or agency
• Matters observed pursuant to duty imposed by law
  as to which matters there was a duty to report
• Excluding in criminal cases matters observed by
  police officers
• Factual findings resulting from an investigation
  made pursuant to authority granted by law
• In civil actions and against the government in
  criminal cases

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803(6) 803(8) Compared

• Business Records
• Made by any business entity.
• Record in any form.
• Matters recorded with regularity.
• Declarant must be under a duty to report
  accurately.
• Can be used against anyone.

• Public Records
• Made by public entities only.
• Record in any form.
• Matters need not be recorded with regularity.
• Declarant sometimes must be under a duty to
  report accurately.
• Sometimes cant be used against the government.