HEARSAY 803 EXCEPTIONS

803(1) – Present Sense Impression

Under Rule 803(1), a statement as a present sense impression can be admitted over the hearsay rule if (1) the statement describes an event or condition without calculated narration, (2) the speaker has personally perceived the event or condition described, and (3) the statement must have been made while the speaker was perceiving the event or condition, or immediately thereafter.

• Greene v. B.F. Goodrich Avionics Systems, Inc., 409 F.3d 784 (6th Cir. 2005) (pilot's statement “I think my gyro just quit” seconds before his fatal helicopter crash was admissible as present sense impression)
• U.S. v. Blakey, 607 F.2d 779 (7th Cir. 1979) (remarks made to a friend by the now-deceased extortion victim twenty-three minutes after the alleged extortion were sufficient to qualify as “immediately thereafter” for a present sense impression exception)
• Hilyer v. Howat Concrete Co., Inc., 578 F.2d 422 (D.C. Cir. 1978) (fifteen to forty-five minutes is too long a time between the perception and the statement to qualify as a present sense impression but not to qualify as an excited utterance, where the declarant was still under the excitement of witnessing a terrible accident)

803(2) – Excited Utterance

Rule 803(2) allows any “statement relating to a startling event or condition made while the declarant was under the stress of excitement that it caused.” For a statement to qualify as an excited utterance, (1) a startling event must have occurred, (2) the declarant observed the event and made the statement under the stress of excitement caused by the startling event, and (3) the statement must relate to the startling event.

• U.S. v. Boyce, 742 F.3d 792 (7th Cir. 2014) (911 call made after going upstairs and leaving the scene of the incident admissible as excited utterance; statement need not necessarily be contemporaneous with the exciting event reported, just with the excitement caused by it; Judge Posner’s concurrence attacks the scheme of categorical hearsay exceptions in the Federal Rules of Evidence as a system of “folk psychology”)
• U.S. v. Wilcox, 487 F.3d 1163 (8th Cir. 2007) (sexual abuse victim’s call to police department qualified under the excited utterance exception where the call was made only a short time period after the act and it was made at the victim’s first opportunity to call the police)
• U.S. v. Clemmons, 461 F.3d 1057 (8th Cir. 2006) (statement must be spontaneous, excited or impulsive rather than product of reflection and deliberation)
• U.S. v. Tocco, 135 F.3d 116 (2d Cir. 1998) (a statement made by a “hyped” and “nervous” defendant three hours after learning there were people in the building he had burned down earlier that evening was admissible as an excited utterance)

803(3) – Then-Existing Mental, Emotional, Physical Condition (State of Mind)

Rule 803(3) creates an exception to hearsay by admitting a statement of the declarant’s “then-existing state of mind (such as motive, intent or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health).” For the statement to be admissible, it must have been contemporaneous with the state of mind sought to be proved, and the declarant must not have had an opportunity to reflect and possibly fabricate or misrepresent his thoughts.

• D.J.M. ex rel. D.M. v. Hannibal Public School Dist. No. 60, 647 F.3d 754 (8th Cir. 2011) (emails about threats received from plaintiff to commit violent acts at school admitted under 803(3))
• U.S. v. Hyles, 479 F.3d 958 (8th Cir. 2007) (co-conspirator's statement that he planned to kill victim admissible as his “then-existing state of mind”)
• Citizens Financial Group, Inc. v. Citizens Nat. Bank of Evans City, 383 F.3d 110 (3d Cir. 2004) (bank tellers’ testimony about customer confusion about similarly named banks)
• U.S. v. Reyes, 239 F.3d 722 (5th Cir. 2001)
• U.S. v. Hartmann, 958 F.2d 774 (7th Cir. 1992) (evidence that the victim told others he feared his wife and her lover was admissible as his then-existing state of mind to show it was unlikely that the victim would name his wife as his beneficiary of a life insurance policy)
• Nuttall v. Reading Co., 235 F.2d 546 (3d Cir. 1956) (error not to admit decedent’s statement to co-worker that he was not feeling well and had requested day off but was refused)

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

Rule 803(4) provides that statements made for and reasonably pertinent to purposes of medical diagnosis and treatment and describing medical history, past or present symptoms, or sensations, their inception, or their general cause, are admissible over the hearsay rule.

The proponent must show that (1) the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and (2) the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.

• Smith v. Pfizer Inc., 688 F.Supp.2d 735 (M.D. Tenn. 2010) (statements to pharmacist admissible under medical diagnosis exception)
• U.S. v. Gonzalez, 533 F.3d 1057 (9th Cir. 2008) (victim's statement to nurse that she had been sexually assaulted admitted under medical diagnosis exception)
• Willingham v. Crooke, 412 F.3d 553 (4th Cir. 2005)
• Danaipour v. McLarey, 386 F.3d 289 (1st Cir. 2004) (mother's statements to doctor, recounting minor daughter's prior statements, were made for purposes of medical treatment)
• Davignon v. Clemmey, 322 F.3d 1 (1st Cir. 2003) (statements made by plaintiffs to a family therapist and social worker not licensed to practice medicine concerning their extreme emotional distress as a result of defendants’ campaign of harassment were admissible)
• Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001) (exhibits containing statements by the plaintiff relating acts of racial harassment to psychologists were admissible as a routine part of the psychologists’ medical diagnosis procedures)

803(5) – Recorded Recollection

Rule 803(5) provides an exception to the hearsay rule when a witness cannot testify from refreshed memory and requires a memorandum or record of an event. The theory is that if a witness wrote something down during the event, then that record is presumed to be fairly reliable. In order for a writing under Rule 803(5) to be admissible, (1) the record must pertain to a matter about which the witness once had personal knowledge; (2) the witness must now demonstrate insufficient recollection about the matter to testify fully and accurately; (3) the record was made or adopted by the witness when the matter was fresh in the witness’s memory; and (4) the record reflects the witness’s prior knowledge accurately.

• U.S. v. Kortright, 2011 WL 4406352 (S.D.N.Y. 2011) (transcript of police officer’s grand jury testimony qualified as recorded recollection, even though testimony occurred two months after the arrest)
• U.S. v. Garcia, 282 Fed. Appx. 14 (2d Cir. 2008) (police officers permitted to read from arrest reports and booking sheets under recorded recollection exception)

803(6) – Business Records

Rule 803(6) provides that business records are exempt from the hearsay rule. The theory of this exemption is that business records are fairly reliable due to their repetitive nature and the fact that profits and jobs are contingent on accurate business records. For a record to constitute a business record, it must be established that (1) the record was made at or near the time of the event or transaction described, (2) the record was made by a person with knowledge of the event or transaction described, (3) the record was made in the course of a regularly conducted business activity, (4) it was a part of that regularly conducted business activity to make and keep the record, and (5) the witness is able to identify the document from actual knowledge of its preparation, is the business custodian of the record, or is a qualified person to sponsor the records for some other reason.

• U.S. v. Cone, 714 F.3d 197 (4th Cir. 2013) (e-mails sent or received by a business are not necessarily business records, but may be if they comply with the rule)
• U.S. v. Moon, 513 F.3d 527 (6th Cir. 2008) (computer records of purchases from various drug companies were “data compilations” and thus business records under Rule 803(6))
• U.S. v. Ary, 518 F.3d 775 (10th Cir. 2008) (803(6) exists because business records have high degree of reliability because businesses have incentives to keep accurate records)
• Haag v. U.S., 485 F.3d 1 (1st Cir. 2007) (testimony from IRS employee that ordinary procedures were to mail letters such as the one at issue was sufficient under 803(6) absent affirmative evidence to the contrary)

803(7) – Absence of Business Records

In a similar vein as Rule 803(6), the absence of business records can also be admitted into evidence over the hearsay rule.

• U.S. v. Munoz-Franco, 487 F.3d 25 (1st Cir. 2007) (court properly admitted minutes from board meeting as evidence that lack of material information about transaction in minutes indicated that the information was not provided to the board)
• U.S. v. Zeidman, 540 F.2d 314 (7th Cir. 1976) (an oral report within a business that there was no record of a check being sent was held to be admissible)

803(8)-(10) – Public Records and Reports

Rules 803(8), 803(9), and 803(10) allow for public records to be admitted over the hearsay rule. Records, reports, statements or data compilations, in any form, of public offices or agencies which set forth: (a) the activities of the office or agency; (b) matters observed in the course of official duties; or (c) in civil actions, factual findings resulting from an investigation made pursuant to authority granted by law may be admitted unless the sources of information or other circumstances indicate lack of trustworthiness. The policy behind this exception is the assumption that a public official will perform his/her duty properly and honestly.

Subdivision (8)

• U.S. v. Lopez-Moreno, 420 F.3d 420 (5th Cir. 2005) (computer printouts from Bureau of Immigration and Customs Enforcement for van passengers were admissible as public records)
• U.S. v. Midwest Fireworks Mfg. Co., Inc., 248 F.3d 563 (6th Cir. 2001) (“[a]dmitting the records under the 803(8) exception is a practical necessity that must be afforded to government officers ‘who have made in the course of their duties thousands of similar written hearsay statements concerning events coming within their jurisdiction’”)
• Bridgeway Corp. v. Citibank, 201 F.3d 134 (2d Cir. 2000) (properly admitting U.S. State Department Country Report indicating that the Liberian judicial system was corrupt)
• Paolitto v. John Brown E. & C., Inc., 151 F.3d 60 (2d Cir. 1998) (trial courts have discretion to determine whether EEOC or equivalent state agency findings are admissible as a public record; 5th and 9th Circuits have adopted a per se rule of admissibility for agency probable cause determinations)

Subdivision (9) - vital statistics

• Weiner v. Metropolitan Life Ins. Co., 416 F. Supp. 551 (E.D. Pa. 1976) (death certificate; cause of death; prima facie evidence admitted)a public record; 5th and 9th Circuits have adopted a per se rule of admissibility for agency probable cause determinations)

Subdivision (10)

• U.S. v. Parker, 761 F.3d 986 (9th Cir. 2014) (Forest Service officer’s testimony he searched Forest Service records and found no permit, was accepted as evidence that defendant had no permit)
• U.S. v. Bowers, 920 F.2d 220 (4th Cir. 1990) (in order to prove taxpayers failed to pay income taxes, government allowed to use sponsoring IRS witness, who checked IRS nationwide computer records under Rule 803(8) and (10), as long as witness conducted diligent search and was subject to cross-examination at trial)
• U.S. v. Robinson, 544 F.2d 110 (2d Cir. 1976) (the trustworthiness of records is a threshold precondition to be decided by the judge and a confused, indefinite, less-than-diligent search is inadmissible to prove the absence of a record)

803(11) – Records of Religious Organizations

Typically, church and other religious organization records are admitted over the hearsay bar.

• However, … Hall v. C.I.R., 729 F.2d 632 (9th Cir. 1984) (Rule 803(11) does not cover church statements of contributions)

803(12)-(14) – Personal or Family History, Interest in Property

Rules 803(9), (11), (12), (13), (19) and 804(b)(4) all allow for statements concerning family history, such as the date and place of birth and death of members of the family and facts about marriage, descent, or relationship.

803(14) allows statements affecting interest in property to be admitted over hearsay.

• Lewis v. Marshall, 30 U.S. 470 (1831) (entry in family Bible admissible as evidence of date of landowner’s death)

803(15) – Statements in Documents Affecting an Interest in Property

Rule 803(15) allows statements in a document to be admitted into evidence that affect an interest in property. The requirements for admissibility are (1) that the document has been authenticated and is trustworthy, (2) that it affects an interest in property, and (3) that the dealings with the property since the document was made have been consistent with the truth of the statement.

• Kelly v. Enbridge (U.S.) Inc., 2008 WL 2123755 at *7 (C.D. Ill. 2008) (assignment agreements showed name changes that affected the chain of title to easement in dispute)
• Compton v. Davis Oil Co., 607 F. Supp. 1221 (D. Wyo. 1985) (warranty deeds)

803(16) – Ancient Documents

Rule 803(16) provides that ancient documents are not hearsay. An “ancient document” is a (a) document that is at least 20 years old, (b) is free from suspicious alterations, and (c) has been in proper custody. Authenticity of the ancient document is subject to Rule 901.

• U.S. v. Mandycz, 447 F.3d 951 (6th Cir. 2006) (Soviet interrogation records)
• U.S. v. Stelmokas, 100 F.3d 302 (3d Cir. 1996) (documents from Lithuanian archives detailing defendant's Nazi service during World War II)
• Dartez v. Fibreboard Corp., 765 F.2d 456 (5th Cir. 1985) (1940s memos discussing dangers of asbestos)
• Compton v. Davis Oil Co., 607 F. Supp. 1221 (D. Wyo. 1985) (warranty deeds)
• Bell v. Combined Registry Co., 397 F. Supp. 1241 (N.D. Ill. 1975) (old newspaper articles)

803(17) – Market Reports, Commercial Publications

Rule 803(17) allows market quotations, tabulations, lists, directories, and other published compilations generally used and relied upon by the public or by persons in particular occupations to be admitted over the hearsay bar.

• Level 3 Communications, LLC v. Floyd, 2011 WL 1106420 (M.D. Tenn. 2011) (telecommunications tariff report and price guide)
• Fond du Lac Bumper Exchange, Inc. v. Jui Li Enterprise Co., Ltd., 753 F.Supp.2d 792 (E.D.Wis. 2010) (U.S. Customs records)
• In re Young, 390 B.R. 480 (Bankr. D. Me. 2008) (Kelley Blue Book values may be accepted as reliable market reports or compilations)
• U.S. v. Masferrer, 514 F.3d 1158 (11th Cir. 2008) (historical financial data derived from computerized records of Bloomberg Financial Service)
• Elliott Associates, L.P. v. Banco de la Nacion, 194 F.R.D. 116 (S.D.N.Y. 2000) (interest rates obtained from Federal Reserve Board website and Bloomberg reporting service)
• U.S. v. Cassiere, 4 F.3d 1006 (1st Cir. 1993) (court approved admission of publication called County Comps, generally used by appraisers to estimate value of properties)
• U.S. v. Goudy, 792 F.2d 664 (7th Cir. 1986) (Polk's Bank Directory)

803(18) – Learned Treatise

Rule 803(18) allows statements contained in published treatises, periodicals, or pamphlets to be admitted over the hearsay bar.

• U.S. v. Norman, 415 F.3d 466 (5th Cir. 2005)
• Costantino v. David M. Herzog, M.D., P.C., 203 F.3d 164 (2d Cir. 2000) (videotape produced by American College of Obstetricians and Gynecologists admissible as learned treatise; it is “overly artificial to say that information that is sufficiently trustworthy to overcome the hearsay bar when presented in a printed learned treatise loses the badge of trustworthiness when presented in a videotape”)