On demand 1h 33s Intermediate

Understanding Federal Rule of Evidence 803

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Understanding Federal Rule of Evidence 803

Most litigators agree—the hearsay rules are challenging. Familiarity with the many exceptions to this rule of exclusion are key if you want to succeed at trial. In this practical refresher focusing on the Federal Rules of Evidence, you’ll review the major exceptions to the rule against hearsay that are found in Federal Rule of Evidence 803.

Transcript

In this presentation, we'll talk about understanding Federal Rule of Evidence 803, which sets forth numerous exceptions to the rule against hearsay. In this presentation, you will do all of the following. First, review the purpose of the hearsay rule. Second, learn the three categories of exceptions that are set forth in Rule 803 of the Federal Rules of Evidence. Third, understand the thought process and reasons for each category, which will help you decide which exception might apply in your particular case. And fourth and finally, refresh yourself on the requirements for each of the major exceptions in Rule 803. Let's get started. Let's begin by reviewing what hearsay is. As you know, hearsay has a three-part definition. It's an out of court statement that is offered for its truth. So, before you jump to looking for an exception to the rule against hearsay, make sure that you have checked whether or not your statement, or the particular piece of evidence that you're offering at trial, does indeed meet all three parts of that definition. If it's not out of court, if it's not a statement, or, most commonly, if it's not offered for its truth, you don't need to find a hearsay exception. But if it is hearsay, then pursuant to Federal Rule of Evidence 803, that piece of evidence is not admissible unless it's rendered admissible by one of the following. First, a federal statute, second, the Supreme Court rules, or third, a different Federal Rule of Evidence, and a different Federal Rule of Evidence would include Rule 803, which is what we're going to focus on in this presentation. There are numerous hearsay exceptions, but we are only gonna talk about those in Rule 803. Let's take a step back before we dive into the particular exceptions in Rule 803 and discuss why Rule 803 exists in the first place, and why these exceptions were even recognized by the drafters of the Federal Rules. Well, there are lots of good reasons why the drafters of the Federal Rules were concerned about allowing hearsay at trial. Because this is out of court, and because it's being offered for its truth, we're not often hearing it firsthand from the person who made the statement. Instead, it's a little bit like whisper down the lane, and you know what happens when statements get whispered down the lane. They get changed, and they're no longer adherent to the original statement, and that makes them less reliable. And all of the Federal Rules of Evidence are designed to get a just and fair outcome, and so, they're designed to filter out unreliable evidence and allow more reliable evidence in. And so, most of the time, where it's possible, rather than have hearsay evidence admitted at trial, we'd rather have a witness who has firsthand knowledge come to trial, sit on the witness stand, raise his or her right hand, swear to tell the truth, and then recount for the jury or the fact finder what happened, live, in front of that fact finder. That way, the jury or the fact finder can assess things like credibility and hear this statement live at trial. But sometimes, we think that certain types of statements that were made before trial, outside of the courtroom context, are actually more reliable than calling a witness in at trial and asking that witness to testify from memory. So, Rule 803 recognizes a series of statements that, for different reasons, we recognize should be part of trials. In a lot of ways, these statements are more reliable than if we called a fact witness to testify at trial based on memory. And so, Rule 803 creates some exceptions to allow these specific statements in at trial. Now, exceptions to the hearsay rule are set forth in various different places in the Federal Rules of Evidence. Rule 803 has 23 specific exceptions, but there are also five exceptions in Rule 804 and one big catchall exception in Rule 807. What's the main difference? Well, the main difference is that Rule 803's exceptions apply whether the declarant, the person who made the out of court statement originally, is able to come to court and testify or not. Whereas rule 804's exceptions only apply when the declarant is unavailable, when the person who originally made the statement, for one reason or another, cannot come to court and testify. Now, you may be asking yourself, why divide these exceptions into two different rules, then? Because the exceptions in Rule 803 are statements that we actually think are more reliable than live testimony. Rule 804 contains exceptions for statements where we actually would prefer the live testimony. We think the live testimony is more reliable, but being realistic, we understand that there are circumstances where that live testimony might not be possible, and in those circumstances, we want to make it feasible for these statements to come in. So Rule 803's exceptions are not a second choice to live testimony. Rule 803's exceptions are a recognition that certain out of court statements are actually better than in court statements. They're more reliable for various different reasons. Remember that you should never just jump to looking for an exception to the hearsay rule just because your opponent makes an objection on the basis of hearsay. You only need an exception if the statement itself is actually hearsay. So anytime you hear a hearsay objection from opposing counsel, the first question that you should ask yourself is, is this actually an out of court statement being offered for its truth? If the answer is no, then that is a better answer to the objection than trying to find an exception, because you don't need to justify admitting a piece of evidence around the hearsay rule if it's not actually hearsay. If the statement meets one of the exemptions, that's also a better answer to a hearsay objection than finding an exception, because that means this is just definitionally non-hearsay and you don't have to justify it any further. And Rule 801 contains a series of definitional carve-outs, things that are definitionally not hearsay, things like prior consistent statements, and prior inconsistent statements, statements for identification, and then a very big category of statements, admissions of a party opponent, or statements of a party opponent. If any of these things are true, if it either does not meet the three-part definition of hearsay, or it's a definitional exclusion, you don't need an exception. So, here's an example. Let's say that you are in a medical malpractice trial, and you represent the defendant physician. You want to admit the plaintiff patient's statement to the doctor, where the patient said, "My leg hurts," and the reason that you're offering that is to explain why the physician operated on that leg. Although we could find an exception in Rule 803, you don't need the exception. This is a statement by a party opponent. Think about the caption of this case. On one hand, it's plaintiff patient, and on the other hand, on the other side of the V in the case caption, is defendant physician. You represent defendant physician, you represent one party in that caption, the other opposing party in the caption, that's your party opponent. And all of the statements by that party opponent are simply, definitionally, non-hearsay, and it's better to have this exclusion than to try to find an exception. Why? Because once you get the court to recognize that everything the plaintiff has ever said is admissible and not barred by the rule against hearsay, you don't have to come up with a justification for each and every individual statement by the plaintiff that you wish to admit. That definitional exclusion applies across the board. That's the end of the story. If you were instead to skip past the analysis of whether or not this is even hearsay and jump right into finding an exception, you would need to find an exception for every single thing that the plaintiff said, and sometimes that might be easy, this hypothetical it would be pretty easy, but there might be hypotheticals or statements by the plaintiff that wouldn't be that easy to square with one of the recognized Rule 803 exceptions. That being said, even though you don't need to have an exception if something is definitionally non-hearsay, it never hurts to have an exception in your back pocket, just in case you get some strange judge and you get an odd ruling, or, for one reason or another, the judge disagrees with you, it's always good to have a backup plan. And although you really only need one exception, if any one exception to hearsay applies in any of the rules, 803, 804, or even 807, oftentimes a particular statement could meet multiple different exceptions. And again, sometimes it's nice to have a backup plan. Sometimes it's nice to have a secondary argument just in case your primary argument isn't accepted by the judge. Why do we even have the Rule 803 exceptions to the hearsay rule? Well, remember that the court and the judge's role under the Federal Rules of evidence, specifically Rule 104A, is to act as a gatekeeper, to make sure that reliable evidence comes in and unreliable evidence stays out. 803 is a recognition of the fact that certain types of statements have guarantees of trustworthiness. A lot of the dangers that the drafters of the Federal Rules of Evidence were concerned about when they were thinking about hearsay, just don't seem to apply to the 803 categories of statements. Now, what are those dangers? Well, there's dangers in hiding or shielding from the fact finder or the jury, problems of perception, problems of memory, narration, and sincerity. But we're not as concerned about those things for the 803 exceptions to the hearsay rule. Why is that? Well, for example, in the case of an excited utterance, we're not worried about whether or not the declarant, the person who made the out of court statement, is unreliable because he or she is insincere. That's one of the justifications against allowing hearsay in, is that, if this is an out of court statement, and we don't have the declarant here, live, testifying at trial, the jury or the fact finder can't assess whether or not the declarant is a truthful person, can't assess the declarant's demeanor. But we're not so concerned with that ability to as assess the demeanor and to determine sincerity when it comes to an excited utterance. Why? Because it happened really spontaneously, and really quickly, and under circumstances that suggests that there wasn't time for the declarant to come up with a lie. Something stressful happened, and the declarant immediately responded by blurting out a statement. We're also not worried about memory, because there was a very short lapse of time between the event and the out of court statement. So a lot of these broad, general concerns that the drafters of the Rules of Evidence had about hearsay just don't apply to the types of statements that are covered by Rule 803 exceptions. There are also some practical considerations. There are just certain categories of statements that we recognize, from a practical point of view, it's gonna be really hard to call in all of those declarants to recount those statements at trial. Sometimes the hearsay is just better. Take, for example, business records. Generally, we think that business records are better and more accurate when it comes to reflecting the details of events that happened than being at trial two or three years after those events and calling in a fact witness to try to describe and remember what was in that document. We think the contemporaneous document that was relied upon by the business is actually a lot better evidence than having live testimony. So, here's our hypothetical that we'll use as we move through the Rule 803 exceptions. Let's say that Bridget was standing on her front porch when a man in a white car drove up and shot at her, narrowly missing her. She believes that the shooter was her coworker John, and she thinks he was probably jealous because she was recently promoted. John's spouse is named Chrissy. Chrissy has suspected for a while that John and Bridget are having an affair. John is now on trial for attempted murder, and Bridget is a witness testifying on behalf of the prosecution. All right, with that hypothetical in mind, let's talk about the Rule 803 exceptions. Now, the first set of exceptions in Rule 803, which I have highlighted in pink on this slide, are for non-reflexive statements, or what I like to call hot takes. These are statements that we think are reliable because there wasn't enough time for the declarant to formulate a lie, or because the circumstances impose on the declarant a duty to be serious. The exceptions in Rules 803-1 through 803-4 would all fit into this category. The second set of exceptions, which I have highlighted in blue font on this slide, are exceptions for reliable documents. These documents are trusted outside of the litigation setting for reasons that we think make them worthy of also being trusted in court. The exceptions in Rules 803-6 through 18, and 22 through 23, would fit into this second category. The third and last set of exceptions are for reputation evidence. These exceptions, which I have highlighted in gray font on this slide, are set forth in Rules 803-19 through 803-21, and we're gonna talk about the exceptions in these three categories. Remember, when you're thinking about trying to find an exception to the hearsay rule, and you're focusing on Rule 803, think about these three different categories, and think about why you believe this out of court statement is reliable. If you can diagnose why you believe this out of court statement is reliable, that will tell you which of the three buckets you're looking at here, which of the three categories. If you think this out of court statement is reliable because there aren't any issues of memory and fabrication, then you're looking for an exception that applies to unreflective statements. If you think that this out of court statement is reliable because it was used outside of a litigation context, then you're probably looking for an exception that is for reliable documents. And if you think that this out of court statement is reliable because it is being used to show reputation in a way that is permitted by the character evidence rules, then you're looking for an exception that applies to reputation evidence. So that alone will help you diagnose, right off the bat, which of these three categories in Rule 803 you probably wanna be focusing in on. We're gonna address the categories one by one. Let's start with non-reflexive statements. The first major non-reflexive statement exception is set forth in Rule 803- 1 for present sense impressions, and that is a statement that is describing or explaining an event or condition, and it has to be made while or immediately after the declarant perceived it. Now, this was not a common law exception in most jurisdictions, but we do allow it in under the Federal Rules of Evidence, because we think there isn't enough time to fabricate the statement, and the spontaneous nature would get rid of any concerns about memory issues. What is required to meet 803-1? Well, first, you have to have a statement that is describing or explaining an event or condition, so we're talking about things that the declarant had firsthand knowledge of. And there has to be a very close, contemporaneous link between the statement and what is being described, probably not more than a lapse of a few minutes at most. So, let's see it in action. Let's say that Bridget sees a white car driving up and down the street past her house as if scoping it out to commit a crime. Five seconds after seeing it, she says, "John must be plotting to shoot me tonight." That's not a present sense impression. She's talking about John's state of mind. That's not an event or a condition. If, in that same timeframe, she says, "Chrissy wants him to kill me," again, that's not a present sense impression. She doesn't have personal knowledge as to Chrissy's state of mind. If, two hours later, Bridget says, "I saw a white car drive past the house," that's not a present sense impression either. It wasn't contemporaneous, too much time passed. Now it's describing an event or a condition, but it's got too much lapse of time. This last example on the slide is a present sense impression. If, five seconds after the car passes, Bridget says, "That white car drove by the house again," now we're describing an event with personal knowledge and that description is made contemporaneously. The next exception is set forth in Federal Rule of Evidence 803-2 for excited utterances. These are statements that relate to a startling event or a condition, made while under the stress of the excitement. Why do we allow them in? Well, again, there's no memory issue because they're spontaneous, and, whether this is born out by social scientific or psychological evidence or not, we think people are less likely to lie under stress. What's required for an excited utterance? Well, first of all, you have to have a startling event. That has to be something more than the declarant just being in a bad mood, or being upset. And the statement has to be about that startling event or in some way brought about by that startling event. So it can't be a statement about the past, and it can't be a wholly unrelated statement. And the statement has to be made while the declarant is still under stress. Now, this doesn't necessarily need to be contemporaneous, and courts will differ on how close in time it has to be, but the further away you get from the startling event, the more work you're going to have to do to prove up that the declarant was still under stress, and you may need to do that with some extrinsic evidence. So, let's see it in action. Bridget sees John drive by the house. She hates him and it annoys her. She says, "Oh God, John." Well, that's not an excited utterance. This isn't sufficiently stressful. Well, let's contrast that with Bridget being shot at. That's sufficiently stressful, and now, her statement, "Oh God, John," is indeed an excited utterance. If she's shot at and her response is to say, "I think I'll have pasta for dinner," that's probably not an excited utterance. It's not really related to the event. And if her cousin, who's in another state at the time of the shooting, says, "When Bridget was nearly shot, she thought the shooter was John," that's also not an excited utterance, because the cousin lacks firsthand knowledge. She's not acting while under the stress of the event. If, three years after the shooting, Bridget says it was John, that's not an excited utterance. Too much time has passed for it to be reasonable to find that Bridget was still under the stress of the event. But let's look at these next two examples. If Bridget is shot at and she faints, and she's unconscious, but when she wakes up in the hospital two hours later, she jolts out of bed and screams, "It was John," that could be an excited utterance. The extrinsic circumstances do suggest that she's still under the stress of the event, because she was unconscious in between the shooting and the statement. When she wakes up, it's as though she thinks she's still at the scene of the shooting. And, similarly, the statement doesn't have to be about something that Bridget observes. Let's say that, when she's shot at, Bridget screams, "Oh, please no, I'm pregnant." Well, that is an excited utterance. Even though it's not specifically about the shooting, it is nonetheless brought about and connected to the shooting, because she's concerned that she might lose the pregnancy because of being shot at. If instead, after nearly being shot, Bridget screams, "I cheat on my taxes," this is arguable, but it's probably not an excited utterance unless you can somehow show that it's connected to the stress of being shot at. So, what are the main differences between Rules 803-1 and 803-2? Oftentimes, statements could meet one or both exceptions, but there are some differences. Present sense impressions are reliable because there isn't enough time to fabricate. Excited utterances are more reliable because stress causes a lack of capacity to fabricate. You don't have to have a startling event for a present sense impression, you do for an excited utterance. You have to be much more contemporaneous for a present sense impression, and a present sense impression has to describe or explain an event being perceived, but an excited utterance doesn't need to. That's why the pregnancy statement would fit the excited utterance exception. All that matters for an excited utterance is that the statement was induced by the stress of the event. Let's move on to Rule 803-3 exception for present conditions. What is a present condition? It's a statement of a then-existing state of mind, or emotional, sensory, or physical condition. We let these statements in because we don't think there are memory issues, we think they're pretty contemporaneous, and there's not a risk of misunderstanding because the declarant is talking about himself or herself, and we think people don't generally lie about their conditions. Don't jump right into arguing the exception, because most of the time, these types of statements are not even being offered for their truth. For example, let's go back to the trial we're talking about. The defense argues that Chrissy shot at Bridget and framed John, and they wanna introduce Chrissy's pre-shooting statement to her mother, "I think my husband is cheating on me with Bridget. If I can't have him, no one can," to show Chrissy's motive. That statement's not being offered for its truth. There's no effort to prove at trial that John is actually cheating. It's just showing what was going through Chrissy's mind, it's just showing her motive to shoot at Bridget. And so oftentimes, you don't even need to jump to the Rule 803-3 exception. Now, there are some limitations on how you can use Rule 803-3, and the first limitation comes from the case known as Mutual Life v. Hillmon. So, the facts of that case were that there was an insurance policy that covered Mr. Hillmon. He disappeared, a body was found in Kansas, and the beneficiary of the policy wanted to collect on the insurance, and so argued, "Hey, this body is Mr. Hillmon." The insurance company said, "No, that's not Mr. Hillmon, that's somebody else. That's Mr. Walters." And so, there was a dispute over who this body was, and Mr. Walters had written a letter that said, "I intend to go to Kansas." That was his then-existing intent when he wrote the letter. The insurance company wanted to offer the statement to show that, since that's what Mr. Walters intended at the time, circumstantially, he may have acted in conformance with that intent. If that's what he intended to do, then he did do it, he did go to Kansas, and therefore, that was his body that was found. And the Supreme Court allowed the statement in to show, not just what Mr. Walters was thinking when he wrote the letter, but that it was more likely that he did indeed go to Kansas, and while that wasn't proof positive that the body was his, did make it more likely that the body could have been his. And it gave the insurance company a reason to argue that the body was Mr. Walters and not Mr. Hillmon. But then, the Supreme Court clawed back the application of 803-3 in a subsequent case, Shepard v. the United States. Dr. Shepherd was accused of poisoning his wife, and his motive was to kill her so he could marry his lover. He argued, no, he hadn't done that, his wife died by suicide, she drank the poison on purpose. At trial, the prosecution offered a statement that Dr. Shepard's wife had made in the hospital to her nurse, where she said, "Oh yes, I drank that liquor. It smelled and it tasted strange. Dr. Shepherd has poisoned me." And the Supreme Court held that the statements were admissible to show that she hadn't intentionally poisoned herself, it wasn't suicide, but they were inadmissible to look back in time and prove anything that Dr. Shepherd had done in the past. And so, she couldn't say, "Here's how I feel right now. This means that because I feel this way right now, something must have happened in the past." She couldn't use her present suspiciousness of her husband to prove his state of mind or actions that he had taken in the past. And the House Judiciary Committee report to Rule 803-3 made it clear that Rule 803-3 should be interpreted to be consistent with Hillmon and Shepherd. There is one exception, and that is the case of probating litigation and wills. In that circumstance, you can look backwards. So, the upshot of this limitation is that you can use a declarant statement to show what the declarant was thinking and feeling at the time the statement was made. You could use a statement, "I feel cold," to prove that at the time the statement was made, that's how the declarant felt. She felt cold at that time. You can introduce the declarant statement to show the declarant's future intent. If the declarant says, "I will go out to the store on Monday," you could use that to prove that the declarant, when she said it, had an intention to go to the store on Monday, and that makes it more likely that the declarant actually did go to the store on Monday, though, of course, it's not proof positive that it happened. What you cannot do is introduce the declarant's statement to explain the cause of past events by a different person. You couldn't use the declarant statement, "I'm gonna throw up, you put milk in my coffee and I'm allergic," to show that, prior to the declarant drinking the milk, someone else did, indeed, put milk in it. The final category of non-reflexive statements in Rule 803 are statements for the purposes of medical treatment or diagnosis. They are statements that are made for medical diagnosis or treatment, and they're statements describing either medical history, past or present symptoms or sensations, when those symptoms or sensations started, or the general cause of those symptoms or statements. We think these are reliable because, whether we're right or wrong, we just have this general sense that people don't lie to their doctors, and in fact, doctors do rely on these statements. They take patient histories, and they use that as part of the treatment of patient. Things that are not included in Rule 803-4 are statements of fault, statements taken strictly for law enforcement purposes, even if the person taking the statement is a paramedic or doctor, and generally, with some exceptions, statements that are identifying an abuser. That depends on whether or not the identification is necessary for the medical treatment or not. Statements don't have to be made to an actual physician. Anyone involved in the medical treatment would count, so a nurse, or a technician, anybody who's involved in that process. This rule has been interpreted only to apply to the patient's statements, not to the statements by the treating provider back to the patient. The next category in Rule 803-5 are recorded recollections. They are a record that are on a matter that the witness once knew about, but now can't remember. They had to have been made or adopted when the matter was fresh in the witness's memory, and they have to be accurate. And there's a fun wrinkle, which we'll talk about subsequently. We think these are reliable statements because they're very contemporaneous, and remember that they don't have to be immediate, they just have to have been made or adopted when the matter was fresh. At trial, the witness doesn't have to have a complete lack of memory, just enough lack of memory that the witness can't testify fully and accurately about the statement. So, let's see it in action. After the shooting, Bridget went to her neighbor's house to wait for 911 to send the paramedics. The neighbor sat her down and wrote down a statement, and Bridget narrated everything she remembered about the shooting. That can be Bridget's recorded recollection, even though she's not the scrivener, she didn't write it. All that matters was that she adopted it and can verify the information was correct. Let's say that Bridget is too shook up to talk about anything that happened on the day of the shooting, but the next day, she writes out a handwritten statement. This also could be a recorded recollection. As long as the events were fresh in her mind, it doesn't matter that they were not strictly contemporaneous. Now, let's look at that second additional wrinkle. If you are the one offering a out of court statement as a recorded recollection, you can have that statement read into evidence, but it can be received as an exhibit only by your opponent. Your opponent gets to decide whether or not this is simply read to the jury or the fact finder, or whether the jury or the fact finder gets to take the actual writing back. Let's see it in action. Let's say that the prosecution asks Bridget what happened on the night of the shooting. She has PTSD and she can't remember, but she does testify that she told her neighbor everything that night and the neighbor wrote it down. The prosecution can offer this, under Rule 803-5, as a recorded recollection, and if the court agrees, Bridget can read from it, another witness, maybe the neighbor, can read from it, even the attorney can read statements from that writing to the fact finder. But the only one who gets to decide if the actual written statement is going to be shown to the jury is the defense, is the opponent. Now, let's switch gears and talk about reliable documents. The first and biggest reliable document that you'll see in practice are business records under Rule 803-6, and they have several different requirements. They have to be made fairly contemporaneously, at or near the time, by someone with knowledge. They have to have been kept in the course of regular activity of a business, and that's defined really broadly. It includes nonprofits, it includes even criminal enterprises. Making the record has to be a regular practice, and you have to either have a certification or the testimony of someone who can lay this foundation. And even if you can overcome all of those hurdles, if your opponent can show that it's not trustworthy, the business record exception may not apply. We allow these records in because we think, look, businesses rely on them, and they could go out of business if these statements are unreliable and full of falsehoods. And so, the fact that businesses themselves rely on these statements makes us believe that they should be reliable at trial. So, let's see it in action. Let's say that Bridget and John's employer doesn't keep commendations from customers, but over the years, Bridget has gotten several. After the shooting, she takes these letters to human resources, and she says, put them in her file. They say, okay, whatever. That's not a business record. It's not ordinarily kept by the business. After the shooting, Bridget is taken to the hospital. She has an MRI of her brain taken. The radiologist reads it and then calls the hospitalist, who records "brain scan normal" in Bridget's medical records. This is a business record. Now note that the hospitalist relied on information from the radiologist. That's fine. Business records don't have to have been written by the person who had firsthand knowledge, they just have to have been transmitted. The information in the record had to have been transmitted by someone with knowledge. And so here, the radiologist had that requisite personal knowledge. There's also an exception in Rule 803-7 for an absence of business records. You have to be using the absence to show that a matter didn't occur, it has to be the kind of record that's regularly kept, and again, your opponent has the right to thwart you from using 803-7 by showing a lack of trustworthiness. Let's see it in action. Let's say that anytime a call is placed to 911, a computerized phone system records the date and time, but there's no entry for the date of the shooting. The defense could use this evidence to show that Bridget never called 911. There's a similar exception set forth in 803-8 that seems very familiar if you're familiar with 803-6, and 803-8 contains the exception for public records. What are public records? They have to come out of a public office, and they have to be about one of these three things. Either the activities of the office, or a matter observed under a legal duty to report, but not in a criminal case, law enforcement observation, or in a civil case, or against the government in a criminal case, factual findings for an investigation, and, much like business records, your opponent has the opportunity to prevent you from using 803-8 by showing a lack of trustworthiness. So, what do we mean by public? Well, we mean government records, official. Any level of the government, federal, state, municipal. They don't have to be open to the public, so, for example, internal FBI memorandum are public records, and there are three different types, those that set forth the activities of the office, those that are recording matters observed under a legal duty, and factual findings in investigations. There's also an exception that allows you to get in the absence of a public record under 803-10. You can show the absence of a record where there's been a diligent search and the public record hasn't been identified, and you're trying to prove that the record or statement doesn't exist. That being said, in a criminal case, if it's the prosecution who wants to invoke 803-10, the prosecution has to give written notice in advance to the defense. So, what are the major differences between business records and public records? Well, business records can be used for non-governmental custodians. Public records only apply to government custodians. Business records have some level of contemporaneousness, public records have none. Business records do have some personal knowledge requirement. Now, it doesn't have to be the person writing the record who has personal knowledge, but the information has to come from someone with personal knowledge. There's no such requirement for public records. Business records can be used freely by any litigant against any other litigant without any notice requirement, or without any limitation. Public records can only be used by certain litigants, in certain ways, and sometimes notice has to be given. And then the final difference is that, with business records, you can use the absence of a business record to show the event didn't occur as long as that type of record is regularly kept. But when it comes to public records, you have to show more. You can use the absence of a record to show an event didn't occur, but you have to also show that there was a diligent search first that failed to turn up evidence of that record. The next category is in Rule 803-9 for public vital records. These are records of birth, death, or marriage, reported to a public office under a legal duty. So, why do we have this exception? Well, this is an exception that applies even if the underlying event wasn't performed by a government office as long as it was reported to the government. So let's say, for example, we have a child who's born in a private hospital. That birth is gonna be reported to the Social Security Administration, but many of the documents in the child's Social Security Administration file wouldn't really be public records. Things that came from the hospital might arguably be business records of the hospital, but not public records, even if the Social Security Administration receives them. And the Social Security Administration didn't observe the birth, it learned about the birth after the fact from the parents, but 803-9 would clearly apply to those records. So even if you couldn't get a custodian from the hospital to prove up that they were business records, and even if those records weren't really government public records, they would be public vital records, and so they would be admissible. Similarly, many privately negotiated and signed documents, like deeds and liens, are filed with the government. And again, the government doesn't create these records, but does catalog them and rely on them, and we think they're sufficiently trustworthy that they should come in at trial. There's also an exception in Rule 803-11 for family history records. They have to be about birth, legitimacy, ancestry, marriage, divorce, death, relationships, or similar facts, and they have to be regularly kept by a religious organization. They're also probably admissible many times under Rule 803-6, but this is a bit of an easier exception to use, because under Rule 803-6, you have to prove some evidence about the person who was furnishing the information, and that that person had firsthand knowledge, but Rule 803-11 doesn't have any firsthand knowledge requirement at all. This is kind of an old exception, because prior to the modern era, a lot of very reliable documents were actually not kept by the government or by formal businesses, but more by religious organizations or families. And that's actually still true in a lot of times today. Many people will get married in a synagogue, and have that recorded by that religious organization, or write down the names of all the children in the family in a family bible, and although these aren't really business records, they're not part of any formal organization, we nonetheless think they're pretty reliable and want them to come in. Rule 803-11 allows you to get in the actual document and the next exception that we're going to look at will let you get the facts, that are actually in the document, in. And that's 803-12, which allows in statements of fact that are in certifications of marriage, baptism, and similar ceremonies. This really functions a lot like the public record exception. A certification by a public official was already admissible under Federal Rule of Evidence 803-8, so, to the extent that the certification is by some member of the government, this would be duplicative, but this covers the facts within the broader exception. This is necessary, however, because sometimes the certification is by a clergy member and not a member of the government, and so, we need a way to get those statements of facts in. So, it can be a statement by anyone who's authorized by a religious organization to perform a ritual, and they are attesting that they performed the ritual of marriage, or a similar ceremony, and it was issued at the time of the act or not long afterwards. There's also an exception in Rule 803-13 for statements of facts about personal or family history in a family record. This is a very old common law hearsay exception for records of family history that were kept in family bibles. It also would apply to things like inscriptions on tombstones, publicly displayed pedigrees, engravings on the insides of watches or rings, all of those sorts of things. 803-14 allows in documents affecting a property interest. That applies to a document that establishes or affects an interest in property if it's admitted to prove the content of the original recorded document or that it was signed and delivered, if the record is kept in a public office, and if there is a statute that authorizes recording that type of document. The recording of title documents is a purely statutory development. In olden times, that wasn't necessarily true, that things like title to property were recorded in a government office. You can use these sorts of documents to prove the contents, that they were executed, or that they were delivered. And so, in essence, this is a way to get in these documents if they don't happen to meet the public records exception. And then we have an exception in 803-15, that gives us the actual statements within those documents, just like we needed an exception to get in statements having to do with religious ceremonies, as well as the facts within those statements. The same is true for documents affecting a property interest, and that's Rule 803-15. There's an exception in 803-16 for ancient documents. That just means something that was prepared before January 1st, 1998 and who has established authenticity. Authenticating a document as ancient under Rule 901-B8 does leave open a separate question of the admissibility of assertive statements contained therein. So, just because you can prove that an ancient document is an ancient document doesn't get you around the hearsay rule. That's why we have Rule 803-16. So, authentication gets you the document in, but if you want someone to read from the actual document, and those statements that are being read are offered for their truth, then you can use 803-16 to get those actual statements in. Ancient documents have been around since before January 1st, 1998. That's just the date that the drafters of the rule selected. And the justification for this hearsay exception is that we think there's been sufficient passage of time since 1998, and presumably, some focus by scholars or research historians that's, by now, somebody would've noticed and pointed out if there were inaccuracies within the statements in the document. There's an exception in Rule 803-17 for market quotations, lists, directories, or other compilations, as long as they're generally relied upon. Data compilations are literally created for the purpose of having the public writ large rely upon them. We expect the phone numbers and addresses in a phone book to be accurate. We make business decisions based upon the data that's listed in online marketplaces like the Nasdaq. And so, this is a very widely accepted common law exception that applies to newspaper, market reports, telephone directories, city directories. And we think that, because they're generally relied upon by the public, that by now, there would have been an identification of any falsehoods in these types of market reports. We have another exception in 803-18 for learned treatises. These have another fun wrinkle. Like 803-5, 803-18 has a wrinkle in how you can use a document that you admit under this hearsay exception. A learned treatise has to be called to the attention of an expert, it has to be established as being a reliable authority, and if it's admitted, statements from within the treatise can be read into evidence, but the treatise itself is never received as an exhibit. Learning treatises are where experts go to find information. They're are things like textbooks that are used to train physicians, like "Gray's Anatomy," industry deskbooks, like the "Merck Manual," which lists all the known interactions and side effects of pharmaceuticals. And because they're used outside of trial by experts, we say the same is true when they're used in court. They can only be used during the direct or cross examination of an expert witness. You or the witness can read to the jury or the fact finder the contents of a learned treatise, but the treatise itself is not admitted. Under the common law, these could only be used to impeach an expert, but under the Federal Rules of Evidence, those statements within the treatise can actually be substantive evidence that's considered by the fact finder. We think they're trustworthy because the very reason they were created is to be relied upon, and so, we think that they're accurate. But, they can only be used when an expert is testifying. We do not trust the jury to take back these learned treatises, read through them on their own, and properly understand them. We use them as an aid for expert testimony, and we need the expert to establish the usefulness, and explain to the jury why the statements in these treatises are reliable. The reliability only has to be established by some expert. It doesn't have to be the expert that you're questioning about with the treatise. As long as there is some ruling, either based on conditional admissibility or because a prior witness has established the authority, there simply just has to be some finding by the court that an expert has identified this treatise as being a reliable source. Let's move on to the third category of exceptions, those having to do with reputation. The exceptions in Rule 803-19 through 21 allow hearsay evidence in at trial that has to do with reputation for personal history, family history, geographic boundaries, general history, and character. Why do we have these exceptions? Well, you'll recall, from thinking about the character evidence rules in the Federal Rules of Evidence, that there are circumstances and times when character evidence is admissible. It's sometimes inadmissible, but sometimes it is allowed in. And when it's allowed in, the form it tends to take, the form that's generally permitted, is reputation and opinion. Now, we don't have a hearsay problem with opinion testimony. With opinion testimony, the character witness is coming into trial, sitting in the witness stand, raising his or her right hand, taking an oath, and telling the jury what he or she thinks about the particular person whose character is at issue in the trial. When it comes to reputation, however, that's all hearsay. That's all what other people in the community, not the person who is sitting on the witness stand testifying at trial, but what a whole bunch of other people, sufficient numbers of people to establish a general pattern in the community, think about the person whose character is at issue. And so, that's naturally hearsay. You're not gonna be able to call in every single person in the community to testify live at trial, who has an opinion about the person whose character is at issue. Instead, you're gonna call one person who has heard all of these hearsay statements, or is aware of all of these hearsay statements from people in the community, and that person is going to give the global view of the individual's reputation in the community. So reputation is, by nature, full of hearsay. And the only way that a character witness can know how an individual is viewed in the community is by learning what a bunch of people in the community think. So, we have to have the exceptions in Rules 803-19 through 21, or else it would be completely useless to have the rules that we have that say sometimes character evidence is admissible. You would, on one hand, have a series of rules that say character evidence is admissible in certain circumstances, but when you were in one of those circumstances, you wouldn't be be able to prove reputation, because all of that testimony would be kept out by the hearsay rule, and that doesn't make any sense. Moreover, we think that these sorts of reputation statements among a person's family and associates or the community, about things like birth, adoption, legitimacy, ancestry, marriage, divorce, death, blood relationships, adoption, marriage, or similar facts, we think those things are generally trustworthy. It's not just one person's belief, or one person's opinion. The community as a whole has this belief. And so, for this reason, these sorts of reputation statements, we think, are generally pretty reliable. They're reliable because of consensus. What might not be covered by Rule 803-19? Arguably, things like the legitimacy of a marriage, not whether or not the marriage actually happened, but whether it was properly performed, or whether the two people who were married were unmarried at the time and legally able to become married. So, there may be some nuances that don't fit exactly into 803-19, but a lot of what the community thinks about your general background would be encompassed by Rule 803-19. Remember that Rule 803 only resolves hearsay issues relating to reputation. You still have to get over the hurdle of proving that reputation evidence is relevant at all, so you still have to meet Rules 404 and Rule 608 before you can get into the question of whether or not the testimony about character meets a hearsay exception. In this presentation, we're only talking about exceptions to the hearsay rule, but do keep in mind that this is just one of the many hurdles that you have to jump over to get a piece of evidence admitted at trial. Before you can admit a piece of evidence, you have to prove that it meets all of the Federal Rules of Evidence, that it gets through all of those different series of nets that screen out evidence that we don't think should be part of this trial, and that we don't think should go back with the fact finder. We've got another exception in Rule 803-20 for reputation, but this is reputation about boundaries. This is a reputation in the community, arising before the controversy, about land. And the reason that we need to have this is that, before the modern times, often there wasn't formal recording of things like deeds or property lines. And so, instead, you could get in and you could prove where the property lines were, or who owned a particular piece of land, by getting the consensus of the community about that question, about, as a general matter, what did people believe about the ownership of that property, or where the property lines lie? Again, there are some nuances to the rule. This reputation has to have come about before the controversy, so it can't be people's opinion about the issue that's being litigated. It can't be people who've become aware that there's a dispute over the property and want to take sides in that dispute. The reputation had to predate or be preexisting before there was a dispute about who owns the land. We've got an exception in Rule 803-21 that applies to the reputation about character, a reputation among a person's associates or in the community concerning the person's character. And this is a very clear mandate that, if you can get over the other hurdles to getting character evidence in at trial, if you can prove that character evidence, as a general category of evidence, should be admissible, then you can get that in through the form of reputation testimony. The most common type of character evidence that's admissible at trial is character evidence about the truthfulness of a witness. Once a witness sits in the witness stand, raises the oath, agrees to tell the truth, and begins to testify, a new issue is interjected in the trial that is always material and relevant, and that can always be addressed by other evidence, and that is whether or not this testifying witness is truthful. Regardless of what kind of trial we're talking about, who the witness is, the truthfulness of witnesses is always relevant, because one of the two main functions of the jury at trial is not only just to decide the substantive evidence, to apply the evidence that comes in at trial to the elements of the charge, or the crime, or the civil claim, but also to assess and weigh witness credibility. And so, once a witness testifies, that witness's character becomes relevant, and so, reputation and opinion about whether or not that witness is truthful becomes a relevant issue at trial. If you want to attack the truthfulness of a testifying witness, one way that you can do it is by calling a witness to talk about that testifying witness' reputation in the community for being truthful. Now, of course, there are other circumstances where character evidence becomes relevant. Remember that pursuant to Rule 404 and the mercy rule inherent in it, sometimes the defendant in a criminal case can open the door to certain character traits and that makes character evidence admissible. There are specific rules that also allow character evidence in other circumstances. We're not gonna dive into those in any detail in this presentation, but just remember that where character evidence in the form of reputation is admissible, you don't have to to worry about it being hearsay, because Rule 803-21 gives you an exception. The final exception that we'll talk about is the exception set forth in Rule 803-22, which is an exception for certain types of judgments. Now, the first thing to keep in mind about this exception is that it only applies to a limited set of judgments. It's not every judgment that you might find. They're, first of all, only judgments of previous convictions, so we're only talking in 803-22 about criminal convictions, and they have to be a final judgment of conviction. So, something like an indictment doesn't count, something that does not actually formalize itself into an indictment, something like an investigation, also does not count. The judgment has to have been entered after either a trial or a guilty plea, but a plea of nolo contendere does not count. So it can't be a no contest plea, it has to be either a judgment entered after trial finding the defendant to be guilty, or a guilty plea by the defendant. It has to be for a serious crime, essentially a felony, something that's punishable by death or by imprisonment for more than a year. When you're using a judgment, you have to be using it at trial to prove any fact that was essential to the judgment. So, you're using the judgment to show that the judgment would've only come about if this person had done a particular thing in order to have the judgment against him or her. And, when offered by the prosecutor for a reason other than impeachment, the judgment had to have been actually against the defendant. The fact that the case is now on appeal can be introduced to the jury, it's an additional fact that the jury can learn, but it doesn't affect the admissibility of judgements themselves under 803-22. Why do we allow these in? Well, we think that criminal convictions are pretty reliable. We have a lot of faith in the jury system, and we think that if somebody has either pled guilty and taken responsibility, and, in a plea colloquy, admitted to committing the crime, or if a jury has found beyond a reasonable doubt that the defendant committed a crime, that that is pretty good evidence that the underlying events that led to that crime actually did occur. So, then you may be asking, why carve out misdemeanors? Well, there's a recognition that there's less of a motivation to defend them, that even if somebody is actually innocent, that they may just accept a misdemeanor and pay a fine rather than go through the hassle of trying to challenge it. If the conviction does come in, the opposing party can then explain the conviction and rebut it however they'd like. What's not covered by this rule are civil judgements, but there's another exception in Rule 803 that might cover some of those. Evidence of an acquittal isn't covered, and nolo pleas are not covered, and that's consistent with Federal Rule of Evidence 410. Remember, they're admissible only if the conviction proves a fact that's essential to the judgment. So, if someone is convicted under the felony murder rule, that doesn't necessarily prove that the person committed burglary, they could have committed some other underlying felony. And so, these are only admissible when you can use the conviction to show that a particular act or event that is relevant in your instant trial must have occurred because of the judgment existing. Now, in this presentation, we haven't gone through every single exception in Rule 803, but we've gone through most of the major ones. Remember my suggestion to you in the beginning, the first thing you should do is decide whether or not you even need a hearsay exception. If you do, think about one of the three categories in Rule 803 might apply, based on your justification for why the out of court statement is reliable, and then you should be able to drill down through the 803 exceptions and find one that applies to your particular piece of evidence. Thank you so much for watching.

Presenter(s)

VF
Veronica Finkelstein
Assistant U.S. Attorney
U.S. Department of Justice in Philadelphia, Pennsylvania

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