DISCLAIMER: I’m admittedly a little iffy on my understanding of the direct state
of mind exception, so don’t just blindly follow my notes on that �
ONLINE RESOURCES
HEARSAY EXCEPTIONS—IT IS HEARSAY AND WE DON’T CARE (unc.edu)
Rule 803. Exceptions to the Rule Against Hearsay | Federal Rules of Evidence | US
Law | LII / Legal Information Institute (cornell.edu)
ONLINE BUBBLE FLOWCHARTS (VISUAL AID) - these are pretty helpful
Hearsay-Exceptions-2013-03-19-10.59.52-842-PM.png (2450×1555)
(openlawlab.com)
Hearsay-Flow-Chart-2013-03-27-07.09.18-704-PM.png (1847×966)
(openlawlab.com)
OUTLINE
What is hearsay?
What are the exceptions to hearsay?
What isn’t hearsay (a.k.a. Non-Hearsay or Not-Hearsay)?
 Distinguish exCeptions to the hearsay rule
o statements that ARE HEARSAY
 BUT ADMISSIBLE because of an exception contained in:
 RULE 803
 RULE 804
or
 RULE 807
o Hearsay but we DON’T CARE
 And distinguish exEmptions from the definition of hearsay
o statements that ARE NOT HEARSAY
 Statements in this category WILL NOT BE HEARSAY
OUT OF COURT STATEMENTS THAT ARE NOT CONSIDERED HEARSAY
RULE 801(d)(1) contends with statements which are considered Not-Hearsay.
 In order for these statements to be considered not hearsay the declarant
must be testifying at trial and subject to cross examination when the out of
court statement is being offered.
The statements themselves aren’t hearsay if used for impeachment purposes.
Out of court statements are only hearsay if they are offered for their truth
 Statement is not hearsay if:
o it is a prior statement by a given witness.
 Elements:
1. If the declarant has testified at the trial or hearing
AND
 In hearsay instances the declarant is the person who
made the out of court statement being offered into
evidence.
2. The declarant was subject to cross-examination concerning the
statement at the time the statement was made
AND
3. the statement is:
 inconsistent or consistent with his testimony
AND
 is offered to rebut an express or implied charge against
him of recent fabrication or improper influence or
motive
OR;
4. the statement is one of identification of a person the declarant
made after perceiving that person.
RULE 801(d)(1) Three categories of prior statements made by witnesses that are
simply “not hearsay”:
1. RULE 801(d)(1)(B)
 Prior Statements consistent with the statement the witness is
making in court
i. can be used to rehabilitate a witness once they have been
impeached, without triggering any hearsay concerns.
1. these prior consistent statements have to have been
made at a:
a. trial
b. hearing
or
c. deposition
and
i. have to have been made under oath
and
ii. subject to cross examination.
2. RULE 801(d)(1)(A)
 Prior Statements inconsistent with the statement the witness is
making in court
i. Offered NOT for truth:
1. Prior inconsistent statements can be offered only to
impeach the witness
a. then the statements truth is irrelevant.
ii. Offered for TRUTH:
1. Prior inconsistent statements can be offered for their
truth:
a. if the statement was given under oath
b. subject to penalties at a:
i. trial
ii. hearing
or
iii. deposition.
3. RULE 801(d)(1)(C)
 Prior Statements made by the witness that identified someone
i. Statements of identification do not have to be made in
court under oath
1. Statements made while perceiving someone are
generally more reliable than statements made while
pointing to the defendant in a courtroom.
RULE 801(d)(2) admissions by party opponents ARE admissible
 Hearsay ExEmption
o Therefore NOT hearsay
 Any statement made by a party may be offered by the party’s opponent.
o This means any party may produce a witness to testify about an
opponent’s statement
 Out of court statements made by parties to the case and those statements
they made are offered against them at trial.
o Virtually anything a party has ever said or communicated in any way
is admissible
 so long as it is sought to be used against the party who made
the statement at trial.
 The risks inherent in these hearsay statements are
reduced by the fact that the person making the
statement, or adopting the statement, is in the
courtroom and a party to the case.
o If the statement was false when it was made or
was made outside the party’s control or
permission:
 then the party can explain that in court
when the statement is offered.
 two initial elements for party opponent admissions:
1. It requires that the declarant be a party to the case
AND
2. It requires that the statement be offered against that party
Once those two elements are met, then the following five types of admissions
are considered “not hearsay”:
1. The party’s statement in either:
a. An individual capacity (RULE 801(d)(2)(a))
or
b. A representative capacity (RULE 801(d)(2)(C)) or;
2. A statement of which the party has manifested his:
a. Adoption in its truth (RULE 801(d)(2)(b))
or
b. Belief in its truth; or;
3. A statement by a person authorized by the party to make a
statement concerning the subject or;
4. A statement by the party’s:
a. Agent or servant (RULE 801(d)(2)(d))
i. concerning a matter within the scope of the agency or
employment
1. made during the existence of the relationship, or;
5. A statement by a co-conspirator of a party (RULE 801(d)(2)(e))
a. During:
i. The course
and
ii. In furtherance of the conspiracy
Each of these five types of admissions are established by the connection between
the person who made the statement and the person that statement is offered
against at trial.
RULE 801(d)(2)(a)
 Statements of individual capacity
 The statement has to have been made by the declarant and offered against
the declarant.
o The declarant didn’t have to:
 Believe the statement, be sober or able to think clearly,
understand what was going on, etc.
o All the declarants had to do was speak.
o This rule also allows for representative statements things like:
 blog posts, twitter posts, facebook posts, police reports signed
by the declarant, insurance forms signed by the declarant, and
more can fall into this category.
RULE 801(d)(2)(b) adoptive admissions
 Usually the declarant’s reaction to a statement or action made by another
person.
o The declarant is being held to a belief or statement in which she
expressed some sort of agreement, either expressly or by omission
o Silence can also be considered an admission.
RULE 801(d)(2)(C) statements made by authorized agents
 Statements made by people who have been given express authority to
make statements on behalf of the party
o A PR person is a good example here, or the spin doctor for a
politician
 This is called “Express Authority”
RULE 801(d)(2)(d) statements through authorized business relationships
 Statements made by the party’s agent or servant
 Concerning a matter within the scope of the agency or employment
 Made during the existence of the relationship
o These statements come from people who have some sort of business
relationship with the party, or agency relationship
 Because of their role in the life or business of the party:
 One would take their statements about their role to be
an expression of the party
o even though they are not expressly authorized to
make that statement.
RULE 801(d)(2)(e) statements by a co-conspirator
 Statements of a party during:
o The course
AND
o In furtherance of the conspiracy
 if the statement was made after the conspiracy was over
 Then the admission would trigger hearsay objections.
 Here the co-conspirator’s statements may be offered against a party
without evidence of authorization for the declarant to speak for/on behalf
of that party
o So long as the Court has additional facts that prove the existence of
a conspiracy
and
o The Court considers the circumstances surrounding the statement
===================================================================
==
OUTLINE
Statements are Assertions made by Declarants
 Statements
o Are the assertions made by Declarants
 They can be:
 Oral
 Written
 Silence
o When a reasonable person would respond to a
statement and does not
 Then it’s a statement adopted by the
person by silence
 Conduct (non-verbal)
o INTENTIONALLY:
 Shaking head
 Pointing
 Conduct in response to a situation
 Declarants
o Are PEOPLE who make the assertions
 Assertions
o Describes behavior that is expressive and communicative.
 can verbal expressions, oral and written expressions that the
declarant intended as an assertion.
 Includes questions and commands.
 Assertions by Action or Conduct
o Wordless behavior is a statement if the nonverbal conduct of the
person is intended as an assertion.
 EX: Being asked a question and doing something in response
 Pointing your finger or nodding your head
o “Which way is north? *points*
What is hearsay?
1. A statement that the declarant does not make while testifying at the
CURRENT trial or hearing; AND
2. An out of court statement offered to prove the matter it asserts.
a. A videotaped re-enactment of the events prepared to show the jury
how those events occurred is hearsay if its offered to prove those
points.
A statement is hearsay if:
1. There is a match between what the proponent (party) seeks to prove and
what the declarant says.
2. Proponent’s purpose:
a. Context and unfolding strategy usually make it clear what the
proponent seeks to prove.
i. If there is doubt what he is trying to prove, the opposition can
raise it and the court will ask what he is trying to prove.
3. Speaker’s Intent:
a. finding that the matter asserted leads the court to a subjective
inquiry
b. because the terms refers to the points declarant intended to express
or communicate.
Just because something is a statement does not make it hearsay.
1. After determining that it’s a statement
a. one must determine whether the statement is being offered to
prove the truth of the matter it is asserting
i. IF a statement is not being offered to prove the truth of the
matter it asserts:
1. THEN ITS NOT HEARSAY
 Statements and Assertions which are NOT Hearsay
o Statements proving that the words of the statement were spoken,
not the truth of the words in the statement
1. Statements of independent legal significance
a. EX:
2.
2.
3.
4.
5.
i. Contracts
1. The words of contracts are of independent legal
significance
a. Verbal assertions to contracts ARE the formation
of that contract
i. Therefore, these are exempted from
hearsay
State of mind of the listener
b. Depends on what is being proved:
i. If only offered to show NOTICE
1. NOT hearsay
ii. If offered to show what the listener BELIEVED
1. NOT hearsay
Defamatory Statements
a. NOT proving truth of the words
i. ONLY proving that the word which were spoken WERE
defamatory
ii. OR the words have independent legal significance
Perjury
a. Same as Defamation
Fraud
a. NOT proving truth of the fraudulent words which were spoken
i. ONLY proving the spoken words were fraudulent
ii. OR the words have independent legal significance
Assault
a. NOT proving the offensive words were true
i. ONLY proving the offensive words were spoken
Hearsay uses:
 Direct Assertions of the Matter to Be Proved
o This is when someone expresses themself directly and the proponent
is seeking to prove the literal and plain meaning of the intended
words.
 EX:
 “The Sky is blue”
o Offered to prove that the sky is in fact blue.
 Indirect Assertions of the Matter to Be Proved
o This is when the literal/apparent meaning differs from the intended
meaning.
 Context is important when trying to figure out the implication.
 EX:
o “The man is breaking the sound barrier”
 They are not literally doing that, they are
being loud or going very fast.
 Sometimes a sentence can have both a direct and indirect assertion
o Regardless, it’s hearsay if the proponent is seeking to prove this
indirect assertion that the declarant intended to assert.
 EX:
 “Someone should give that guy a ticket, at the rate he’s
going.”
 The same logic can be applied in determining state of mind.
o One can imply a person’s state of mind by what they say
o and using to prove the statement by implication would hearsay.
 However, one can view the statement as circumstantial
evidence of what she thought
 Which falls under a non-hearsay use
Hearsay Exclusions
 If an out of court statement meets an exclusion:
1) Then it is ADMISSIBLE
 LOOK FOR EXCLUSIONS
1. Prior Statements
a. Inconsistent Past Statements
i. Past statements which are now inconsistent with current
statement
1. They CANNOT be offered to prove the truth of the
matter asserted in the statement
a. They CAN be offered to undermine a witness’s
credibility
ii. Requires the witness’s PRIOR statement to:
1. Be made under oath
2. While at a deposition, hearing, or other proceeding
iii. Requires the witness to:
1. Testify
2. AND be subject to cross-examination
3. At the current trial
b. Consistent Past Statements
i. Requires the witness to:
1. Testify
2. AND be subject to cross-examination
3. At the current trial
c. Prior ID of a person
i. You must bring up the issue while the witness is on the stand
1. Must be an IDENTIFICATION of someone
a. CANNOT be a description of someone
i. Descriptions are NOT identifications
2. Requires the witness to:
a. Testify
b. AND be subject to cross-examination
c. At the current trial
2. Admissions
a. by a party or attributable to a party
b.
c.
d.
e.
f.
i. offered against a party
1. doesn't have to be against the party at the time they
made the admission
a. The admission just has to be offered against them
Own Statement Admissions
i. If the statement is being offered in the favor of the party who
asserted the admission:
1. The admission is NOT admissible
a. That is hearsay
Adopted Admissions
i. A person adopts admissions by manifesting a belief of the
words of someone else
1. EX: Signing a report by an insurance agent
a. you area considered to have adopted it
i. Now that can be used against you in court
Admissions through a Speaking Agent
i. These admissions can be used against their principal
1. EX:
a. Lawyers are speaking agents of clients
b. CEOs are speaking agents of the business
Admissions through other agents
i. Can be used if the statement was made:
1. During the course of the agency relationship
AND
2. Within the scope of the agency relationship
Admissions of Conspirators
i. Must first prove the existence of the conspiracy
1. Only by preponderance of the evidence
2. For purposes of evidence
ii. The statements alone are insufficient to show admissions of
conspirators
1. need corroborating proof
iii. Statements must be made:
1. During the conspiracy
AND
2. In furtherance of the conspiracy
a. a coconspirator pointing a finger at other
coconspirators are not:
i. In furtherance of the conspiracy
1. And are therefore NOT admissible
iv. Admissible Conspirator Statements
1. recruiting new members
2. procuring the instrumentalities to commit the crime
3. disposing evidence of crime
4. trying to keep the fruit of the crime secret
5. "bragging"
Unavailability of Witness
 Unavailability will occur:
1) Privilege
 When a witness exercises a Privilege to not testify
 EX:
o Marital Privilege
o Client patient confidentiality Privilege
2) Refuses
 When a witness refuses to testify in court
 Even after a court order to do so
3) Forgetful
 When a witness lacks memory of events
4) Dead
 When a witness has died before trial
 This also includes injury and disability
5) Absence
 When a witness is no longer around to come to court
6) Forfeiture
 Procurement
or
 Wrongdoing
 Statements made by a witness who is now unavailable can sometimes be
admissible
1) If a statement is not an admissible through some exclusion then look
to witness unavailability
 The fact that the witness is unavailable is never sufficient in and of itself
1) You must prove that the witness cannot be in court
AND
2) It has to meet an exception
Hearsay Exceptions for Unavailable Witnesses
Once the declarant of a statement is established as "unavailable" these are the
circumstance under which their prior testimony will be admissible:
1. Former testimony
a. Trial transcripts
i. The current trial can use transcripts from previous trials
2. Dying declaration
a. The words spoken by an individual:
i. Immediately before their death
ii. While they know their death is imminent
iii. About the circumstances surrounding their death
1. Doesn’t have to be a direct statement of what happened
a. EX: I think death is near and its stupid to text and
drive
b. The declarant does NOT need to die for their statement to be a dying
declaration
i. UNLESS it is in a:
1. Criminal trial
2. Wrongful death lawsuit
c. The declarant does NOT always have to be the victim in the case
i. EX: Someone sees another person being attacked
1. They state the name of the attacker then die of a heart
attack
a. The witness’s dying declaration is admissible
d. Only admissible in:
i. Criminal homicide cases
ii. All civil cases
3. Declaration against interest
a. Individual defendant makes statement to inculpate themself
i. When someone confesses/admits guilt
b. Co-defendants makes statements to blame each other
i. One defendant offers statements to blame the other
1. One person points the finger at the other person to
lessen their involvement in the crime and shifts the
blame
a. Usually statements made to police
i. NOT admissible
1. EX: defendant 1 states “he robbed
the bank, I only watched”
a. This is NOT a statement that
goes against their interest
i. This Lessons their
involvement and is
beneficial to the
declarant
c. Defendant makes statement to exculpate themselves
i. They make statements which lesson their involvement in the
crime to show innocence
1. This required corroborating evidence to prove
4. Family history
a. own statement
b. family member's statement
c. intimately associated w/family
5. Forfeiture by Wrongdoing
a. Right to object to hearsay CAN be FORFEITED
i. CANNOT be waived
b. Defendants will not be allowed to be advantaged/benefited by their
own wrongdoings
i. They cannot make witnesses who will testify against you
unavailable for trial
1. if they do, anything the witness ever said can be used
against them
a. Hearsay evidence is objectionable
ii. Hearsay from witnesses testifying against you will generally
NOT be admissible
1. UNLESS:
a. an exception or exemption applies to make the
testimony admissible
b. BUT the right to object and to exclude a witness’s hearsay evidence
will be FORFITTED when:
iii. An individual defendant:
1. INTENTIONALLY make the testifying witness absent in
court
a. This occurs when:
i. the defendant must act with the PURPOSE
to make the witness unavailable to prevent
the witness from testifying in court
or
ii. the defendant makes arrangements with
the PURPOSE of preventing the witness
from testifying
iv. Co-conspirators:
1. If the defendant is a co-conspirator
a. Then one co-conspirator can forfeit the right to
object to hearsay for ALL co-conspirators
i. This occurs when one co-conspirator acts
with the PURPOSE to procure a witness’s
ABSENCE in court
1. So that the witness cannot testify
a. Then the hearsay evidence is
admissible against ALL coconspirators
b. IF:
i. Procuring a witness’s absence in court is:
1. Foreseeable
OR
2. A natural consequence
c. THEN:
i. Under 804(b)(6) you waived your right to
object to hearsay
2. TEST for co-conspirators:
a. ASK:
i. Is it reasonably foreseeable that:
1. a co-conspirator may do something
with the purpose of making the
witness unavailable?
OR
2. Is it must be a natural consequence
of the conspiracy
b. IF SO:
i. then regardless if someone has acquiesced
to that specific act
1. they have acquiesced to the actions
of their co-conspirators
a. Pinkerton liability
c. Knowledge is irrelevant
i. A co- conspirator’s knowledge of the
specific act to prevent a witness from
testifying doesn’t matter
1. If it is reasonably foreseeable that a
co-conspirator will do something for
the purpose of preventing a witness
from testifying then the fact that you
do not know that act was going to
happen doesn’t matter
a. HEARSAY IS STILL ADMISSIBLE
HERE
d. Standard:
i. Preponderance of evidence
1. Can the judge find by the
preponderance of evidence that it is
more likely than not that someone
acquiesced to the actions of coconspirators?
a. IF SO THEN YOU HAVE
FORFITTED YOUR RIGHT TO
OBJECT TO HEARSAY
Other Exceptions
 these do NOT have to meet unavailability first
1. Present Sense
a. if you say something while you are seeing it; you don't have time to
make up a lie
i. therefore it is reliable
b. more important when laying the foundation:
i. when the event occurred and when the statement was made
2. Excited Utterance
a. statement relating to startling event or condition while still under
stress cause by the event or condition
i. the idea is that they are reliable b/c if you're excited, it will be
more difficult to make up a lie
b. Must establish:
i. A stressful event
ii. The emotional condition of the declarant when the statement
was made
AND
iii. Show the amount of time that has passed
1. children of tender years -- there is an expansive view for
them as compared to adults
c. Criminal Cases:
i. if the utterance doesn't meet dying declaration, then it
probably meets excited utterance
3. THEN EXISTING STATE of emotional, physical or mental condition for
exception to hearsay
a. Declarant is describing their own internal THEN-EXISTING state of
mind or physical condition
i. Often best evidence of how someone is feeling/thinking is
what they say
1. They may be lying
a. BUT
i. they are not likely mistaken about this
condition
ii. Declarants state of mind is sometimes admissible to prove the
conduct of another person
b. IS HEARSAY when the person is stating their DIRECT state of mind
i. EX: I’m Elvis
1. Admissible if showing state of mind, not admissible if
showing you ARE Elvis
ii. EX: I believe I’m Elvis
1. Is admissible to show you are of the state of mind that
you believe you are Elvis
c. ASK:
i. Do we care about the declarants state of mind
1. or do we care if the fact is true?
ii. If we care about the declarants state of mind
1. If that matters
a. Then it can be offered for its truth
iii. If we car the car is blue we cannot offer it for its truth
d. Includes statements of the declarant’s then-existing state of:
i. Mind
1. such as:
a. Motive
b. Plans
or
c. Intentions
2. Admissible to show:
a. What declarant thinks
b. The intents/desires/needs of the declarant
and
c. The declarant's future conduct
i. DOES include present state of mind about
the FUTURE:
1. EX: ‘‘I’m thinking about driving to
New York tomorrow.’’
a. Is within the scope of Rule
803(3)
i. Because the declarant is
referring to the plans
she NOW has in her
mind.
ii. Courts have a tendency
to admit forward-looking
statements
3. The rationale for the exception can be traced both to
Necessity and reliability
4. EX:
a. Defendant states plaintiff gave ring to him as a
gift, plaintiff disagrees
1. STATEMENT:
a. Plaintiff stated “defendant is
the kind of person who would
steal milk from a starving
baby.”
i. This statement it a direct
assertion of the
plaintiff’s state of mind
2. INFERENCE:
a. Plaintiff did not like Defendant.
3. CONCLUSION:
a. Plaintiff did not give the ring to
Defendant voluntarily.
4. This is not offered to prove that the
defendant ACTUALLY would or has
stolen milk
a. Show the plaintiff clearly does
not like the defendant
i. which goes to show they
wouldn’t give defendant
a gift
ii. Emotional Condition
1. Happy
2. Sad
3. Angry
iii. Sensory Condition
iv. Physical Condition
1. such as:
a. Mental feeling
b. Bodily health
or
c. Pain
i. EX: My foot hurts
e. DOES NOT include PREVIOUS states of mind:
i. Statements of:
1. Memory
or
2. Belief
ii. To prove the fact remembered or believed
1. Assertions of a person’s PAST state of being
iii. Unless:
1. It relates to:
a. The validity of the declarant’s will
or
b. The terms of the declarant’s will
iv. Backward-looking statements are not admissible
1. EX: ‘‘Yesterday I was pretty depressed’’
a. NOT admissible
2. EX: Person said car was blue
a. Offered to show they believed car was blue
i. So if they believed it was blue then it
probably was blue
1. Therefore this statement IS being
used to prove the matter it is
asserting (hearsay)
a. If the car is blue then the
statement cannot be offered
for its truth
FRE 803(3)
Then existing mental, emotional, or physical condition. A statement of the
declarant's then existing state of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental feeling, pain, and bodily health), but
not including a statement of memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation, identification, or terms of
declarant's will.
“It is well-settled, however, that this hearsay exception applies only to the
declarant’s state of mind, not to someone else’s state of mind.”
A statement of belief is not admissible for the purpose of proving an act or
conduct alleged to have been performed prior to the making of the statement.
State of mind of the speaker is not typically hearsay because it is not being
offered for the truth of the matter.
May be offered for intent, not being offered for truth but to show what the
person said.
Use 803(3) where state of mind is not at issue but is still relevant to some element
of the case.
4. Treatment or Diagnosis
a. Statement made:
i. With the intention for seeking:
1. medical treatment
or
2. diagnosis
a. NOT THE diagnosis
b. Includes statements made to anyone
i. Not just doctors
1. Children to parents
a. EX: “Mom I need to go to the hospital”
2. Patients to Doctors
c. Admissible
i. So long as it is reasonably pertinent to the treatment
1. doctors don't need to know statements related to fault
a. was hit by the car going 60mph
i. This matters
b. who was driving the car?
i. Doesn't matter
c. what color was the car?
i. Doesn't matter
ii. What else is pertinent?
1. child molestation
2. spousal battery
5. Hearsay within Hearsay
a. When you have more than one length in your chain:
i. ALL statements are admissible IF:
1. Every link in the chain can be curable by an exception
a. Exclusion
or
b. Non-hearsay purpose
b. Rule 403 is the argument to this by the other side
i. Probative value is low
and
ii. Prejudicial value is high
1. Because there are so many links in the chain
6. Business Record
a. The proponent may present a declaration of a qualified person
certifying that the record:
i. Was made:
1. at
OR
2. Near
ii. The time of the occurrence of:
1. The matters set forth by
or
2. from information transmitted by
a. a person with knowledge of those matters;
iii. Which was kept in the course of the regularly conducted activity;
AND
iv. was made by the regularly conducted activity as a regular
practice.
b. Business:
i. Very broad
1. Professions
a. Physicians
b. Dentists
c. Attorneys
2. Any occupation
3. Calling
a. Auto mechanic
b. Neighborhood gardener
4. Non-profit activities
a. The records of a non-profit organization or charity
could be considered business records
5. Public agencies
a. Even police records
i. Some courts have held:
1. the admissibility of certain kinds of
public records must be determined
under Rule 803(8)
a. The public records exception
ii. Other courts have held:
1. Public records could be admissible
under Rule 803(6)
a. even if not admissible under
Rule 803(8).
c. any compilation
i. Includes records that contain more subjective matters
1. such as:
a. diagnoses
or
b. opinions
i. Records containing opinions must not only
overcome a hearsay objection,
1. but also must satisfy the requirements
of Article VII of the Federal Rules of
Evidence
ii. Not limited to records of a clerical nature
1. such as the accounts that log the details of each sale and
purchase
iii. Also includes:
1. Notes of an attending physician
or
2. Employee performance evaluations penned by the job
supervisor
d. of any data
i. All modern forms of digital data collections are included
ii. As well as written documents
e. made by person with knowledge
i. The person who makes the business record either:
1. has personal knowledge of the matters described in it
or
2. Receives input from another person who has that
knowledge.
i. Ex: Managers receiving field reports
1. The reports are compiled by people who have
personal knowledge
a. And gathered by the manager for
business purposes in accordance to
business procedure
ii. Non-employee's statement on a business record:
1. Creates a hearsay within hearsay problem
a. The business record itself can be cured if it meets
the business record exception
b. but the non-employee's statement needs to meet
an exception as well to get the whole thing in
f. Made at or near time of event
i. “near the time”
1. Is a function of circumstances.
a. Mundane and complex details:
i. should be recorded quickly
1. it is likely that recollections
concerning such detailed matters will
soon deteriorate
b. More general information
i. is likely to remain in memory for longer
ii. Records tend to be more reliable when they are compiled
close in time to the events described
1. As time passes the recollection of the person compiling
the record may begin to fail.
g. Records must be kept in the course of regularly conducted activities of
a business
i. Must be an internal policy or procedure admissibility under
Rule 803(6)
1. still may be questioned on grounds:
a. that the circumstances surrounding the creation of
that report
b. indicate lack of trustworthiness
i. EX: Trustworthiness may depend on
whether the person who provides the
information for an accident report is a
potential party with an interest in stretching
the truth or, instead, is a neutral eyewitness
ii. The reliability of a firm’s business records depends in large part
on whether the record concerns the firm’s regular activities.
h. Making the record must ALSO be a regular practice of that business
activity
i. requires the regular practice of the business to make the type of
report in question.
1. The motive to be accurate is supplied by the first element
a. since the record relates to activities at the heart of
the business.
2. The ability to be accurate is secured by the second aspect
of regularity
a. which establishes that the business has had the
opportunity to develop procedures to compile
reliable records of the type in question.
i. Testimony to establish the documents qualify as a business record:
i. Must be given by:
1. Custodian
2. Qualified person
OR
3. Certification that complies with rule 902(b)(11) or (12)
ii. NOT required that testimony of the requisite foundational facts
are is given by:
1. the author of the record
Or
2. Person with knowledge of the matters described in the
record
iii. Anyone can give testimony as long as:
1. that person is familiar with:
a. The business
b. Its mode of operation
AND
c. Its recordkeeping practices.
i. This includes custodian of records for the
business.
1. The person whose responsibility is to
maintain the files of the business.
j. The record must be TRUSTWORTHY
i. Even if all the other requirements of Rule 803(6) are met:
1. the court still may refuse to admit the business record if it
appears untrustworthy.
a. The method or circumstances of preparation might
indicate lack of trustworthiness when a business
simply fails to keep its records in a ‘‘businesslike’’
manner.
ii. The source of information for a business record might be
deemed untrustworthy if:
1. A person prepared the record for use in litigation
AND
2. That person had a personal stake in the outcome of that
action.
7. Public Record
a. Government's own records
b. Statements made under duty of law, observed by agency personnel
i. Except law enforcement recordings offered against criminal
Defendants
c. Findings of fact
i. except made against criminal D
8. Learned Treatise
a. First must establish it's a reliable authority in the field by
i. Truth
ii. Admission
iii. Judicial notices
b. You can only use it to cross examine an expert
Or
c. If the expert relies on it as part of his or her testimony
DEFINITIONS:
Effect upon the listener (exception to hearsay):
 Statements not offered for their truth but for the impact/effect the
statement had on the listener
 “I only did X because I was told Y”
 “I only did X because I was forced to”
 The statement makes the actions a someone more/less likely
 Statements or assertions that indicate motives
 Statements made to someone to show they knew something but acted
regardless
 Statements which can cause emotional distress
o In cases where that is at issue or is recoverable
 Statements which show someone was:
o Aware of something
o Knowledgeable of something
o Put on notice of something
Legally significant fact or legally operative language (exception to hearsay):
 Words which create legal relationships
 Includes things like:
o Contract agreements
 Offers
 “it’s a deal”
o
o
o
o
o
o
 conversations setting up the oral contract modification
Contracts to marry:
 "Let's get married on July 1"
 Saying “I do” when getting married
Language that indicates a contract breach
 “I will not give you any more lumber”
Statements that fulfil elements of legal claims
 Adverse Possession
 “I am renting this land”
 “Josh didn’t give me permission to be here”
 “Blackacre belongs to me and to no one else."
 Prostitution propositions
 “Pay me and we will have sex”
 Statements of defamation
 “he said I am crooked and lie”
Words that define scope of employment
Words constituting commissions of a crime
 Threats
Gifts
 "this is a gift."
circumstantial evidence of the declarant's state of mind (exception to hearsay):
 Statements that indicate/infer if someone like the person or not
 Hands $$$ then says “You owe me $$$”
DIRECT evidence of declarants state of mind = not hearsay
CIRCUMSTANTIAL evidence of declarants state of mind = non-hearsay
If it is direct evidence of state of mind, it would be admissible under the hearsay
exception for statements of present state of mind
if it is circumstantial evidence, it would be admissible as non-hearsay.
Present intent to do a future act (exception to hearsay)