Rules 803-804

Question 1

Rule 803: Hearsay exceptions applicable regardless of the declarant’s availability

Answer 1

(1) Present sense impressions
(2) Excited utterances
(3) Statements of then-existing mental, emotional, or physical condition
(4) Statements for medical diagnosis or treatment
(5) Recorded recollections

(6-7) Business records

(8-10) Public records and reports

Question 2

Rule 804: Hearsay exceptions applicable only when the declarant is unavailable

Answer 2

(b) (1) Former testimony
(b) (2) Dying declarations
(b) (3) Statements against interest
(b) (4) Statement of personal or family history
(b) (6) Forfeiture by wrongdoing

Question 3

Rule 804(a) Criteria for being unavailable

Answer 3

(1) The court RULES that a privilege applies (5th Amendment, or lawyer-client privilege, etc)
(2) REFUSES to testify despite a court order
(3) TESTIFIES that does not remember the subject matter
(4) CANNOT testify because dead or then-existing infirmity/physical or mental illness
(5) Must try to procure the statement (Proponent cannot wrongfully procure the absence of the declarant)

Question 4

Statements against interest

Answer 4

A statement that:

1. A reasonable person in the declarant’s position would have only made if it was true b/c is contrary to the declarant’s interest; and
2. Is supported by corroborating circumstances that clearly indicate its trustworthiness

If it is offered in a criminal case that tends to expose declarant to criminal liability

Rule covers only those declarations/statements within confession that are individually self-inculpatory. Court does not include other statements.

Statements against interest are more reliable because no reason to lie.

Question 5

Rule 803(1) Present sense impression

Answer 5

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter

No chance of failed memory.

Since they are describing or explaining something there hasn’t been time to make something up

Question 6

Rule 803(2) Excited Utterance

Answer 6

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

No time to reflect

The brain is not all there so there is barely any chance of making anything up

Judge looks to:

1. How startling the event was
2. How much time has passed

Question 7

The difference between rule 803 and rule 804:

Answer 7

Rule 804: the exceptions apply if the hearsay declarant is unavailable as a witness.

• That’s a precondition to the 804 exceptions

Rule 803 it doesn’t matter that they be available or unavailable

• What matters is the earlier out of court statements
• The judge decides whether they come in or not

Question 8

Rule 803(3) Statements of then-existing condition

Answer 8

A statement of declarants then existing state of mind, such as motive, intent, plan, or emotional sensory, or physical condition but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will

This means that we can look forward but we cant look backwards

Not a past memory

Question 9

Rule 803(4) Statements for medical diagnosis or treatment

Answer 9

Statements made that are reasonably pertinent for medical diagnosis or treatment are exceptions to hearsay:

(1) Describing medial history
(2) Past or present sensations
(3) The inception or cause of the disease or injury

All of these would be subject to 105 limiting instruction. Only the part of the statement needed for the 3 types of statements can be admitted as an exception to hearsay.

Question 10

Rule 803(6) Business records

Answer 10

Records of regularly conducted activity

These records are fully admissible

Business record exception admits only employee records because they’re reliable because they stand to lose their jobs

Requirements:

1. The record was made at or near the time by or from information transmitted by someone with knowledge
2. The record was kept in the course of a regularly conducted activity of a business, etc., not in anticipation of litigation
3. Making record was regular practice
4. Conditions shown by testimony of custodian or anther qualified person (can also be by statute permitting certification)
5. Escape Clause: Neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness. (Burden on the opponent)

Question 11

Rule 803(8) public records and reports

Answer 11

It sets out:

1. The office’s activities
2. A matter observed while under a legal duty to report
3. In a civil case or against government in a criminal case, factual findings from a legally authorized investigation (not offered against criminal Defendants)
4. And neither the source of information nor other circumstances indicate a lack of trustworthiness

Rule includes opinions and conclusions. A finding of fact is a conclusion

Police Reports not admissible against criminal defendants. Officer needs to testify.

Question 12

Factors for trustworthiness of public records and reports:

Answer 12

1. The timeliness of the investigation
2. The investigator’s skill or experience
3. Whether a hearing was held, and
4. Possible bias when reports are prepared with a view to possible litigation.