Hearsay...
Federal Rules of Evidence: Hearsay
Rule 801. Definitions
The following definitions apply under this article:
(a) Statement.—A ‘‘statement’’ is (1) an oral or written assertion
or (2) nonverbal conduct of a person, if it is intended by the
person as an assertion.
(b) Declarant.—A ‘‘declarant’’ is a person who makes a statement.
(c) Hearsay.—‘‘Hearsay’’ is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
(d) Statements which are not hearsay.—A statement is not hearsay
if—
(1) Prior statement by witness.—The declarant testifies at
the trial or hearing and is subject to cross-examination concerning
the statement, and the statement is (A) inconsistent
with the declarant’s testimony, and was given under oath subject
to the penalty of perjury at a trial, hearing, or other proceeding,
or in a deposition, or (B) consistent with the declarant’s
testimony and is offered to rebut an express or implied
charge against the declarant of recent fabrication or improper
influence or motive, or (C) one of identification of a person
made after perceiving the person; or
(2) Admission by party-opponent.—The statement is offered
against a party and is (A) the party’s own statement, in either
an individual or a representative capacity or (B) a statement
of which the party has manifested an adoption or belief in its
truth, or (C) a statement by a person authorized by the party
to make a statement concerning the subject, or (D) a statement
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, or (E) a statement by a coconspirator
of a party during the course and in furtherance of
the conspiracy. The contents of the statement shall be considered
but are not alone sufficient to establish the declarant’s
authority under subdivision (C), the agency or employment relationship
and scope thereof under subdivision (D), or the existence
of the conspiracy and the participation therein of the
declarant and the party against whom the statement is offered
under subdivision (E).
Rule 802. Hearsay Rule
Hearsay is not admissible except as provided by these rules or
by other rules prescribed by the Supreme Court pursuant to statutory
authority or by Act of Congress.
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
(1) Present sense impression.—A statement describing or explaining
an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter.
(2) Excited utterance.—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.
(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.
(4) Statements for purposes of medical diagnosis or treatment.—
Statements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
(5) Recorded recollection.—A memorandum or record concerning
a matter about which a witness once had knowledge
but now has insufficient recollection to enable the witness to
testify fully and accurately, shown to have been made or
adopted by the witness when the matter was fresh in the witness’
memory and to reflect that knowledge correctly. If admitted,
the memorandum or record may be read into evidence
but may not itself be received as an exhibit unless offered by
an adverse party.
(6) Records of regularly conducted activity.—A memorandum,
report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses, made at or near the
time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business
activity to make the memorandum, report, record or data
compilation, all as shown by the testimony of the custodian or
other qualified witness, or by certification that complies with
Rule 902(11), Rule 902(12), or a statute permitting certification,
unless the source of information or the method or circumstances
of preparation indicate lack of trustworthiness. The
term ‘‘business’’ as used in this paragraph includes business,
institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit.
(7) Absence of entry in records kept in accordance with the
provisions of paragraph (6).—Evidence that a matter is not included
in the memoranda reports, records, or data compilations,
in any form, kept in accordance with the provisions of
paragraph (6), to prove the nonoccurrence or nonexistence of
the matter, if the matter was of a kind of which a memorandum,
report, record, or data compilation was regularly made
and preserved, unless the sources of information or other circumstances
indicate lack of trustworthiness.
(8) Public records and reports.—Records, reports, statements,
or data compilations, in any form, of public offices or
agencies, setting forth (A) the activities of the office or agency,
or (B) matters observed pursuant to duty imposed by law
as to which matters there was a duty to report, excluding,
however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions
and proceedings and against the Government in criminal
cases, factual findings resulting from an investigation made
pursuant to authority granted by law, unless the sources of information
or other circumstances indicate lack of trustworthiness.
(9) Records of vital statistics.—Records or data compilations,
in any form, of births, fetal deaths, deaths, or marriages,
if the report thereof was made to a public office pursuant
to requirements of law.
(10) Absence of public record or entry.—To prove the absence
of a record, report, statement, or data compilation, in any
form, or the nonoccurrence or nonexistence of a matter of
which a record, report, statement, or data compilation, in any
form, was regularly made and preserved by a public office or
agency, evidence in the form of a certification in accordance
with rule 902, or testimony, that diligent search failed to disclose
the record, report, statement, or data compilation, or
entry.
(11) Records of religious organizations.—Statements of
births, marriages, divorces, deaths, legitimacy, ancestry, relationship
by blood or marriage, or other similar facts of personal
or family history, contained in a regularly kept record
of a religious organization.
(12) Marriage, baptismal, and similar certificates.—Statements
of fact contained in a certificate that the maker performed
a marriage or other ceremony or administered a sacrament,
made by a clergyman, public official, or other person
authorized by the rules or practices of a religious organization
or by law to perform the act certified, and purporting to have
been issued at the time of the act or within a reasonable time
thereafter.
(13) Family records.—Statements of fact concerning personal
or family history contained in family Bibles, genealogies,
charts, engravings on rings, inscriptions on family portraits,
engravings on urns, crypts, or tombstones, or the like.
(14) Records of documents affecting an interest in property.—
The record of a document purporting to establish or affect
an interest in property, as proof of the content of the
original recorded document and its execution and delivery by
each person by whom it purports to have been executed, if the
record is a record of a public office and an applicable statute
authorizes the recording of documents of that kind in that office.
(15) Statements in documents affecting an interest in property.—
A statement contained in a document purporting to establish
or affect an interest in property if the matter stated
was relevant to the purpose of the document, unless dealings
with the property since the document was made have been inconsistent
with the truth of the statement or the purport of
the document.
(16) Statements in ancient documents.—Statements in a document
in existence twenty years or more the authenticity of
which is established.
(17) Market reports, commercial publications.—Market
quotations, tabulations, lists, directories, or other published
compilations, generally used and relied upon by the public or
by persons in particular occupations.
(18) Learned treatises.—To the extent called to the attention
of an expert witness upon cross-examination or relied upon by
the expert witness in direct examination, statements contained
in published treatises, periodicals, or pamphlets on a
subject of history, medicine, or other science or art, established
as a reliable authority by the testimony or admission of
the witness or by other expert testimony or by judicial notice.
If admitted, the statements may be read into evidence but
may not be received as exhibits.
(19) Reputation concerning personal or family history.—Reputation
among members of a person’s family by blood, adoption,
or marriage, or among a person’s associates, or in the
community, concerning a person’s birth, adoption, marriage,
divorce, death, legitimacy, relationship by blood, adoption, or
marriage, ancestry, or other similar fact of personal or family
history.
(20) Reputation concerning boundaries or general history.—
Reputation in a community, arising before the controversy, as
to boundaries of or customs affecting lands in the community,
and reputation as to events of general history important to
the community or State or nation in which located.
(21) Reputation as to character.—Reputation of a person’s
character among associates or in the community.
(22) Judgment of previous conviction.—Evidence of a final
judgment, entered after a trial or upon a plea of guilty (but
not upon a plea of nolo contendere), adjudging a person guilty
of a crime punishable by death or imprisonment in excess of
one year, to prove any fact essential to sustain the judgment,
but not including, when offered by the Government in a criminal
prosecution for purposes other than impeachment, judgments
against persons other than the accused. The pendency
of an appeal may be shown but does not affect admissibility.
(23) Judgment as to personal, family, or general history, or
boundaries.—Judgments as proof of matters of personal, family
or general history, or boundaries, essential to the judgment,
if the same would be provable by evidence of reputation.
Rule 804. Hearsay Exceptions; Declarant Unavailable
(a) Definition of unavailability.—‘‘Unavailability as a witness’’
includes situations in which the declarant—
(1) is exempted by ruling of the court on the ground of privilege
from testifying concerning the subject matter of the declarant’s
statement; or
(2) persists in refusing to testify concerning the subject matter
of the declarant’s statement despite an order of the court
to do so; or
(3) testifies to a lack of memory of the subject matter of the
declarant’s statement; or
(4) is unable to be present or to testify at the hearing because
of death or then existing physical or mental illness or
infirmity; or
(5) is absent from the hearing and the proponent of a statement
has been unable to procure the declarant’s attendance
(or in the case of a hearsay exception under subdivision (b)(2),
(3), or (4), the declarant’s attendance or testimony) by process
or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal,
claim of lack of memory, inability, or absence is due to the procurement
or wrongdoing of the proponent of a statement for the
purpose of preventing the witness from attending or testifying.
(b) Hearsay exceptions.—The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony.—Testimony given as a witness at another
hearing of the same or a different proceeding, or in a
deposition taken in compliance with law in the course of the
same or another proceeding, if the party against whom the
testimony is now offered, or, in a civil action or proceeding,
a predecessor in interest, had an opportunity and similar motive
to develop the testimony by direct, cross, or redirect examination.
(2) Statement under belief of impending death.—In a prosecution
for homicide or in a civil action or proceeding, a statement
made by a declarant while believing that the declarant’s
death was imminent, concerning the cause or circumstances of
what the declarant believed to be impending death.
(3) Statement against interest.—A statement which was at
the time of its making so far contrary to the declarant’s pecuniary
or proprietary interest, or so far tended to subject the
declarant to civil or criminal liability, or to render invalid a
claim by the declarant against another, that a reasonable person
in the declarant’s position would not have made the statement
unless believing it to be true. A statement tending to expose
the declarant to criminal liability and offered to exculpate
the accused is not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement.
(4) Statement of personal or family history.—(A) A statement
concerning the declarant’s own birth, adoption, marriage,
divorce, legitimacy, relationship by blood, adoption, or
marriage, ancestry, or other similar fact of personal or family
history, even though declarant had no means of acquiring personal
knowledge of the matter stated; or (B) a statement concerning
the foregoing matters, and death also, of another person,
if the declarant was related to the other by blood, adoption,
or marriage or was so intimately associated with the
other’s family as to be likely to have accurate information
concerning the matter declared.
(5) [Other exceptions.] [Transferred to Rule 807]
(6) Forfeiture by wrongdoing.—A statement offered against a
party that has engaged or acquiesced in wrongdoing that was
intended to, and did, procure the unavailability of the declarant
as a witness.
Rule 805. Hearsay Within Hearsay
Hearsay included within hearsay is not excluded under the hearsay
rule if each part of the combined statements conforms with an
exception to the hearsay rule provided in these rules.
Personal Injury Attorney
Do you need the services of a competent personal injury attorney in Orange County, California? The personal injury lawyer in our Orange County office has experience with civil tort actions including personal injury law. If you have been injured or civilly wronged by someone and have sustained damages as a result you should consult an attorney in order to make sure that your legal rights are protected. The lawyer in our office would be happy to assist you with your civil legal problem such as a personal injury action. If you require the services of an experienced attorney, please feel free to contact a personal injury lawyer in our Orange County office for a consultation regarding your legal issue.
Our office services greater Orange County in communities such as Newport Beach, Costa Mesa, Irvine, Santa Ana, Huntington Beach, Laguna Beach and Long Beach.
Contact us for more info
|
