Hearsay Exceptions - Declarant’s Availability Immaterial

4. Hearsay Exceptions - Declarant’s Availability Immaterial

1. Present State of Mind

A statement of a declarant’s then - existing state of mind, emotion, sensation, or physical condition is admissible. [Fed. R. Evid. 803(3) ] The exception is based on the need to obtain evidence as to the declarant’s internal state of mind or emotion. It must usually be made under circumstances of apparent sincerity. The statement is often offered to establish the intent of a person, either as a fact to be proved as such (domicile, criminal intent) or as a basis for a cir­cumstantial inference that the intent was probably carried out.

2. Excited Utterances

A declaration made by declarant during or soon after a starting event is admissible. The declaration must be made under the stress of excitement produced by the starting event. The de­claration must concern the immediate facts of the starting occurrence. [Fed. R. Evid. 803(2) ] The spontaneousness of such a declaration and the consequent lack of opportunity or reflection and deliberate fabrication provide an adequate guarantee of its trustworthiness.

3. Declarations of Physical Condition

1. Present Bodily Condition—admissible

Generally, declarations of present bodily condition are admissible as an exception to the hearsay rule,even though they are not made to physician. They may be made to a spouse,rela­tive, friend, or any other person. Of course, declarations made to a physician are admissible.

[ Fed. R. Evid. 803(3) ] Such declarations relate to symptoms,including the existence of pain. Because they are contemporaneous with the symptoms,they are more reliable than present testi­mony based upon recollection.

2. Past Bodily Condition—Admissible If to Assist Diagnosis or Treatment

4. Business Records

Any writing or record,whether in the form of an entry in a book or otherwise,made as a memorandum or record of any act, transaction, occurrence, or event is admissible in evidence as proof of that act, transaction, occurrence, or event, if made in the regular courts of any business; and if it was the regular course of such business to make it at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.

5. Past Recollection Record

Witness are permitted to refresh their memories by looking at almost anything—either be­fore or while testifying. This is called present recollection received. However, if the witness’s memory cannot be revived, a party may wish to introduce a memorandum that the witness* made at or near the time of the event. Use of the writing to prove the facts contained thereirwtaises a hearsay problem; but if a proper foundation can be laid, the contents of the memorandum may be introduced into evidence under the past recollection record exception to the hearsay rule. The rationale is that a writing made by an observer when the facts were still fresh in her mind is probably more liable than her testimony on the stand—despite the fact that cross - examination is curtailed. For admissibility requirements.

6. Official Records and Other Official Writings

1. Public Records and Reports

The exception for public records and report is necessary to avoid having public officers have their jobs constandy to appear in court and testify to acts done in their official capacity,especial­ly since the entrant could probably add nothing to the record. Also, such records are presumed to be trustworthy because officials are under a duty to record properly that which they do.

2. Records of Vital Statistics

Records of births, deaths, and marriages are admissible if the report was made to a public office pursuant to requirement of law.

(3 ) Statement of Absence of Public Record

Evidence in the form of a certification or testimony from the custodian of public records that she has diligently searched and failed to find a record is admissible to prove that a matter was not recorded,or,inferentially,that a matter did not occur.

1. Prior Criminal Conviction—Felony Conviction Admissible

The Federal Rules specifically provide that judgments of felony convictions are admissible in both criminal and civil actions to prove any fact essential to the judgment. In the Rules,felo­ny convictions are defined as crimes punishable by death or imprisonment in excess of one year. [Fed. R. Evid. 803(22) ] The convictions that may be used are limited to felonies be­cause persons may choose not to defend misdemeanor charges.

7. Ancient Documents and Documents Affecting Property Interests

Under the Federal Rules, statements in any authenticated document 20 years old or more are admissible. [Fed. R. Evid. 803(16) ] Moreover,in contrast to the traditional view that only ancient property - disposing documents qualified for the exception, statements in a document af­fecting an interest in property(e. g. ,deed,will,etc)are admissible regardless of the age of the document.

8. Learned Treatises

Many courts do not admit statements from standard scientific treatises or authoritative works as substantive proof, limiting admissibility to use as impeachment of the qualifications of the expert witness. The Federal Rules recognize an exception to the hearsay rule for learned treatises.