Common Hearsay Exceptions

Common Hearsay Exceptions

    1. militarydefenselawyers379Present Sense Impressions and Excited Utterances.
      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
        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.

        1. Present sense impression,(Global Military Justice Reform Blog ) unlike excited utterance, does not require the
          perceived event to be a startling one. It does, however, apply only to
          statements made at the time the event is “perceived” or “immediately
          thereafter.” The proponent must show: an event occurred; the declarant
          had personal knowledge of the event; the declarant made the statement
          soon after the event; and the statement “describes or explains” an event.
        2. The excited utterance requires a showing that the event occurred; was
          startling; the declarant was acting under the stress of excitement cause by
          the event; and statement “relates” to a startling event. The time element
          or factor may determine whether the declarant was acting under the
          stress of excitement. See United States v. Arnold, 25 M.J. 129 (C.M.A
          1987),.
          cert. denied, 484 U.S. 1060 (1988) (12 hours until first
          opportunity); United States v. Le Mere, 22 M.J. 61 (C.M.A. 1986) (3
          year-old victim after 16 hours); United States v. Armstrong, 30 M.J. 769
          (A.C.M.R. 1990) (4 to 5 days too long for an excited utterance), rev’d,
          36 M.J. 311 (1993); United States v. Knox, 46 M.J. 688 (N.M. Ct. Crim
          1996). App. 1997) (one year too long). See also United States v. Miller,
          32 M.J. 843 (N.M.C.M.R. 1991), aff’d, 36 M.J. 124 (C.M.A. 1992).
          Spontaneous statement by crying, upset student to teacher concerning her
          father’s sexual molestation 18 hours earlier held admissible. Focus is not
          on lapse of time since the exciting incident, but whether declarant is
          under stress of excitement so as to lack opportunity to reflect and to
          fabricate an untruthful statement. See also United States v. Morgan, 40
          M.J. 405 (C.M.A. 1994), cert. denied, 115 S. Ct. 907 (1995) (textbook
          example of excited utterance). The proponent must show: A startling or
          stressful event occurred; the declarant had personal knowledge of the
          event; the declarant made a statement about the event; and the declarant
          made the statement while he or she was in a state of nervous excitement.
        3. United States v. Grant, 42 M. J. 340 (1995). Accused charged with
          various sexual offenses against his seven-year-old stepdaughter. Trial
          counsel offered victim’s statements made to family friend 36-48 hours
          after one of the alleged incidents, both as excited utterance and residual
          hearsay. MJ admits as excited utterance but rejects as residual hearsay.
          While passage of time is not dispositive, CAAF concluded the
          requirements of 803(2) were not met where, as here, statements were the
          product of sad reflection and not made under the stress or excitement of
          the event. The statement was, however, admissible under the residual
          exception based on its spontaneity, lack of suggestiveness, corroboration,
          the non-threatening home environment, and its general similarity to an
          excited utterance. Case demonstrates the importance of using alternative
          theories for admissibility of evidence.
        4. In United States v. Feltham, 58 M.J. 470 (2003), the CAAF held that a
          military judge did not abuse his discretion in admitting the statements a
          male sailor made to his roommate approximately one hour after appellant
          forcibly orally sodomized him. The military judge specifically found
          that the victim was still under the stress of a startling event; therefore, the
          lapse of time was not dispositive.
        5. In United States v. Donaldson, 58 M.J. 477 (2003), the CAAF upheld
          the admission as an excited utterance of a 3-year-old sexual assault
          victim’s statements to her mother 12 hours after the incident. Although
          the girl had spent the entire day with her mother, they had always been in
          the company of others. Her statement represented the first opportunity
          she had to be alone with and speak to a trusted adult.
      3. Statements for purposes of medical diagnosis or treatment.
        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:
        (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical
        diagnosis or treatment and described medical history, or past or present symptoms, pain, or sensation, or
        the inception or general character of the cause or external source thereof insofar as reasonably pertinent to
        diagnosis or treatment.

        1. Proponent must show declarant had some expectation of promoting well
          being (and thus incentive to be truthful), and statement was made for
          purposes of medical diagnosis or treatment. As small children typically
          cannot articulate that they expected some benefit from treatment, it is
          important that someone, like a mother or father, explain to them why
          they are going to the doctor, the importance of the treatment, and they
          need to tell what happened to feel better. CAAF also recommends the
          caretakers identify themselves, as such and engage in activity which
          could be construed as treatment by the child. United States v. Siroky, 44
          M.J. 394 (1996).
        2. If statement is in response to questioning, the questioning must be of
          medical necessity. United States v. Haner, 49 M.J. 72 (1998). United
          States v. Armstrong, 36 M.J. 311 (C.M.A. 1993) (statement made to TC
          was in preparation for
          days later did not “change the character of the statements.”) See United
          States v. Henry, 42 M.J. 593 (A. Ct. Crim. App. 1995). Statements made
          to medical personnel not made with expectation of receiving medical
          benefits but instead for the purpose of facilitating collection of evidence.
          NOTE: 803(4) not limited to patient-declarants. United States v. Yazzie,
          59 F.3d 807 (9th Cir. 1995) (mother’s statements to docs ok). United
          States v. Austin, 32 M.J. 757 (A.C.M.R. 1991) (child’s mom to social
          services).
        3. United States v. Rodriguez-Rivera, 63 M.J. 372 (2006). Referral of a
          victim to a medical professional by trial counsel “is not a critical factor
          in deciding whether the medical exception applies to the statements she
          gave to those treating her. The critical question is whether she had some
          expectation of treatment when she talked to the caregivers.” United
          States v. Haner, 49 M.J. 72, 76 (1998). Under the circumstances of this
          case, the fact the trial counsel initiated the examination of JK by Dr.
          Craig is not a sufficient reason to hold that the military judge erred by
          concluding the medical exception applied. The military judge’s findings
          that Dr. Craig saw JK for the purpose of medical diagnosis and
          treatment, and that JK expected to receive medical treatment when she
          saw Dr. Craig, support his decision to admit the statement made by JK to
          Dr. Craig under Rule 803(4). As such, the military judge’s decision was
          not an abuse of discretion.
      4. Recorded Recollection.
        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:
        (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 by received as an exhibit unless offered by an adverse party.

        1. Foundation and Procedure: Attempt refreshing memory; establish that
          the memory of the witness cannot be refreshed; establish that this witness
          made a record when the matter was fresh in the memory of this witness;
          establish that the record made accurately reflects the knowledge of the
          witness at the time of the making; then have the witness read the
          recorded recollection into evidence.
        2. Note: The record could be marked as a prosecution or defense exhibit
          for identification, or as an appellate exhibit. It should not be admitted
          unless offered by the adverse party. Attach it to the record of trial. It
          should not go to the deliberation room unless offered by the adverse
          party. United States v. Gans, 32 M.J. 412 (C.M.A. 1991). Excellent case
          detailing the differences between using writings to refresh memory under
          Rule 613 and writings used to establish past recollection recorded under
          Rule 803(5).
      5. Records of Regularly Conducted Activities (Business Records).
        (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, 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 the armed forces, a business,
        institution, association, profession, occupation, and calling of every kind, whether or not conducted for
        profit. Among those memoranda, reports, records, or data compilations normally admissible pursuant to
        this paragraph are enlistment papers, physical examination papers, outline-figure and fingerprint cards,
        forensic laboratory reports, chain of custody documents, morning reports and other personnel
        accountability documents, service records, officer and enlisted qualification records, logs, unit personnel
        diaries, individual equipment records, daily strength records of prisoners, and rosters of prisoners.
        (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.
      1. Bank Records. Must lay the foundation specified in the Rule: Timely
        recording by a regularly conducted business activity in accordance with a
        regular practice of recording. When laying the business records
        foundation, witness familiarity with the records-keeping system must be
        sufficient to explain the system and establish the reliability of the
        documents. Witnesses need not be those who made the actual entries or
        even the records custodian. United States v. Garces, 32 M.J. 345
        (C.M.A. 1991) and United States v. Tebsherany, 32 M.J. 351 (C.M.A.
        1991). United States v. Brandell, 35 M.J. 369 (C.M.A. 1992). Bank
        records not admissible under this provision unless a custodian or other
        qualified person testifies.
      2. NCIC Reports. United States v. Littles: 35 M.J. 644 (N.M.C.M.R.
        1992): NIS agent testified that he saw a National Crime Information
        Center (NCIC) report showing criminal activity and conviction of, the
        accused’s father. The report was hearsay, and based upon the evidence
        presented, did not qualify for admission under Rule 803(6) or 803(8)
        (i.e., not shown to have been made at or near the time by a person with
        knowledge; the testifying agent was not the custodian of the record, nor
        did he show familiarity with the records-keeping system; the “rap” sheet
        was not a record or report of the activities of NCIC).
      3. Lab Reports. United States v. Schoolfield, 36 M.J. 545 (A.C.M.R. 1992),
        aff’d, 40 M.J. 132 (CMA 1994): The accused alleged error in the
        admission of blood sample medical records (4 serology reports and a
        Western Blot test result) pursuant to Rule 803(6). He argued the records
        were not kept in the ordinary course of business, no chain of custody was
        established, and that errors called into question the reliability of the
        records. ACMR disagreed, finding no abuse of discretion by the military
        judge. The medical director of WRAMC Institute of Research was
        qualified to testify as to the record keeping system and maintenance of
        records. Lab reports and chain of custody documents are admissible.
        United States v. Vietor, 10 M.J. 69 (C.M.A. 1980); United States v.
        Robinson, 14 M.J. 903 (N.M.C.M.R. 1982). Admission under the rule
        does not preclude the defense from calling the lab technicians to attack
        the report. United States v. Magyari, 63 M.J. 123 (2006). Is data in a lab
        report a testimonial statement giving an accused the right to confront the
        makers of those statements pursuant to Crawford v. Washington, 541
        U.S. 36 (2004)? MAYBE. In the context of random urinalysis
        screening, where the lab technicians do not equate specific samples with
        particular individuals or outcomes, and the sample is not tested in
        furtherance of a particular law enforcement investigation, the data entries
        of the technicians are not “testimonial” in nature. IF, however, the labreports were prepared at the behest of law enforcement in anticipation of
        a prosecution, the reports may become “testimonial.” See United States
        v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) (finding lab reports to be
        testimonial since law enforcement requested the report).
      4. Computer Phone Records. United States v. Casey, 45 M.J. 623 (N.M. Ct.
        Crim. App. 1996). Computer system does not have to be foolproof, or
        even the best available, to produce records of adequate reliability.
      5. VHS Videotapes. Rule 803(6) Business records. U.S. v. Harris, 55 M.J.
        433 (2001). The CAAF adopted the prevailing view of state and federal
        courts regarding the “silent witness” theory of admissibility vis-a-vis
        videotapes. The court noted that over the last 25 years, the “silent
        witness” theory of authentication has developed in almost all
        jurisdictions to allow photographs to substantively “speak for
        themselves” after being authenticated by evidence that supports the
        reliability of the process or system that produced the photographs. The
        court adopted the silent witness theory, noting that “any doubts about the
        general reliability of the video cassette recording technology had gone
        the way of the beta tape”. The court also addressed when a witness
        could meet the requirements of 803(6). They noted that in order for a
        witness to meet the qualification requirements of 803(6) they must be
        “generally familiar” with the process.
    2. Public Records and Reports. Rule 803(8).
      (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public
      office 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, matters
      observed by police officers and other personnel acting in a law enforcement capacity, or (C) against the
      government, 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.
      Notwithstanding (B), the following are admissible under this paragraph as a record of a fact or event if
      made by a person within the scope of the person’s official duties and those duties included a duty to know
      or to ascertain through appropriate and trustworthy channels of information the truth of the fact or event
      and to record such fact or event: enlistment papers, physical examination papers, outline figure and
      fingerprint cards, forensic laboratory reports, chain of custody documents, morning reports and other
      personnel accountability documents, service records, officer and enlisted qualification records, records of
      court-martial convictions, logs, unit personnel diaries, individual equipment records, guard reports, daily
      strength records of prisoners, and rosters of prisoners.

      1. Permits introduction of evidence from public office or agency where the
        data and source of information are indicative of trustworthiness and set
        forth (a) the activities of the office; or (b) matters observed pursuant to a
        duty imposed by law; or (c) (against the Government) factual findings
        resulting from an investigation made pursuant to authority granted by
        law. Presumption of regularity. Substantial compliance with regulation
        is sufficient. Irregularities material to the execution preclude
        admissibility. United States v. Anderson, 12 M.J. 527 (N.M.C.M.R.
        1981). Excludes matters observed by police or personnel acting in a law
        enforcement capacity, if offered by the Government. Defense can admit
        police reports under Rule 803(8)(c). Purely ministerial recordings of
        police may be admissible. United States v. Yeoman, 22 M.J. 762(N.M.C.M.R. 1986), aff’d, 25 M.J. 1 (C.M.A. 1987) (the reporting of a
        filed complaint).
      2. In United States v. Taylor, 61 M.J. 157 (2005), the CAAF held that a
        military judge erred by admitting a document with undecipherable
        content under the public records exception; the custodian could not
        explain the origin or meaning of the undecipherable content. The CAAF
        further held that any underlying documents used to create a public record
        must satisfy a hearsay exception to satisfy Rule 805.
      3. United States v. Rankin, 64 M.J. 243 (2007). Are service record entries
        documenting an accused’s period of unauthorized absence “testimonial”
        for purposes of the Confrontation Clause? No. Service records
        documenting absence are not prepared by law enforcement or any
        prosecutorial agency, rather, they are routine personnel documents that
        chronicle the relevant dates, times, and locations of the accused.
        Additionally, at the time the documents are created, an objective witness
        would not reasonably believe the statement would be available for use at
        a later trial. But see Whorton v. Bockting, 127 S. Ct. 1173 (2007)
        (changing the analysis of nontestimonal statements under the
        Confrontation Clause, “Under Roberts, an out-of-court nontestimonial
        statement not subject to prior cross-examination could not be admitted
        without a judicial determination regarding reliability. Under Crawford,
        on the other hand, the Confrontation Clause has no application to such
        statements and therefore permits their admission even if they lack indicia
        of reliability.”)
    3. Contents of Learned Treatises.
      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:
      (18) Learned treatises. To the extent called to the attention of an expert where established as 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.

      1. Main requirement for using the exception, whether on direct or crossexamination,
        is the establishment of the treatise, periodical, or pamphlet
        as reliable authority. See generally David F. Binder, Hearsay Handbook,
        ch. 7 §19.01 at 337 (3d ed. 1991). The proponent of the evidence
        accomplishes this task either by obtaining an admission from an expert
        witness concerning the reliability or authority of the statement. The
        provision concerning calling the treatise to the attention of the expert in
        cross-examination, or having the expert rely upon the treatise on direct
        examination “is designed to ensure that the materials are used only under
        the sponsorship of an expert who can assist the fact finder and explain
        how to apply the materials.” 2 C. McCormick, McCormick on Evidence
        ch. 34, §321 at 352 (4th ed. 1992) Another method is through judicial
        notice. “Given the requirements for judicial notice, Rule 201, and the
        nature and importance of the item to be authenticated, the likelihood of
        judicial notice being taken that a particular published authority other than
        the most commonly used treatises is reliable is not great.” Michael H.
        Graham, Federal Practice and Procedure-Evidence §6769 at 714, note 4

(1992).

    1. As is the case with the hearsay exception for recorded recollections, Rule
      803(18) provides that statements from the learned treatise are read into
      evidence; the learned treatise itself does not become an exhibit.
  1. Residual Hearsay Rule – The “Catchall”. Rule 803(24) and 804(b)(5).
    Transferred to rule 807 which reads
    807. A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial
    guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the
    statement is offered as evidence of a material fact; (B) the statement is more probative on the point for
    which it is offered than any other evidence which the proponent can procure through reasonable efforts;
    and (C) the general purposes of these rules and the interests of justice will best be served by admission of
    the statement into evidence. However, a statement may not be admitted under this exception unless the
    proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide
    the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the
    statement and the particulars of it, including the name and address of the declarant.

    1. The proponent must demonstrate “equivalent circumstantial guarantees
      of trustworthiness”;

      1. Inherent Reliability. Idaho v. Wright, 497 U.S. 805 (1990)
        (admissibility of child’s statement to doctor regarding abuse
        pursuant to residual hearsay rule requires a showing of indicia of
        reliability at the time statement made, not through corroborating
        evidence.)
      2. United States v. Morgan, 40 M.J. 405 (CMA 1994), cert. denied,
        115 S. Ct. 907 (1995): Military judge properly admitted sworn
        statement of rape complainant under residual exception. The
        statement was made near to the time of the attack and was
        consistent with earlier excited utterances.
    2. Establish the evidence is offered to prove a material fact in issue;
    3. Show evidence offered is more probative of the point than any other
      evidence reasonably available.

      1. All the prerequisites for use must be met, including the
        requirement that it be more probative than any other evidence on
        the point for which it is offered. United States v. Pablo, 50 M.J.
        658 (A. Ct. Crim. App. 1999), testimony of school counselor
        inadmissible hearsay because victim testified on the same issues
        and counselor’s testimony did not shed any new light on the
        issue.
      2. United States v. Czachorowski, 66 M.J. 432 (2008). The military
        judge ruled that the alleged child-victim was unavailable based
        on the trial counsel’s proffer that the child had forgotten the
        alleged instances of abuse. The military judge admitted the
        child’s statements of the alleged incident to both the mother and
        the grandparents as residual hearsay. The CAAF found that the
        government failed to meet its burden that it could not obtain
        more probative evidence despite “reasonable efforts.” The
        government offered nothing to corroborate its assertions that the
        child had forgotten the alleged incident, and the military judge
        relied solely on government’s assertions without seeking any
        corroboration before declaring the child unavailable. Because
        the residual hearsay exception should be rarely used, “Absent
        personal observation or a hearing, there must be some specific
        evidence of reasonable efforts to obtain other probative
        evidence.”
        Demonstrate that admission fosters fairness in the administration of
        justice; and
        Provide notice of intended use.
      1. United States v. Holt, 58 M.J. 227 (2003). During the sentencing
        phase of appellant’s court-martial for writing bad checks, the
        military judge admitted a letter from one of the victims to show
        victim impact and the full circumstances of the offenses. The
        letter was not admitted for the truth of the matters asserted
        therein. On appeal, the AFCCA held that the contents of the
        letter were admissible as residual hearsay under Rule 807. The
        CAAF reversed, holding that the AFCCA failed to apply the
        notice and foundational requirements of Rule 807. In order to
        admit evidence under Rule 807, the appellant must be afforded
        sufficient notice in advance of the trial or hearing to prepare to
        meet the evidence; this requirement applies equally to trial and
        appellate proceedings.
      2. United States v. Czachorowski, 66 M.J. 432 (2008). The CAAF
        took a flexible approach and found that the advance notice
        requirement applies to the statements and not the means that the
        proponent intended to use to seek admission of the statements.
        While the trial counsel gave no formal notice, the defense
        counsel knew about the statements and the trial counsel’s intent
        to offer the statements. Notice was satisfied.
        Harmless Error Test. In United States v. Lovett, 59 M.J. 230 (2004), the
        appellant was convicted of raping his 5-year-old daughter. The daughter
        testified at trial. The Government also introduced several hearsay
        statements of the victim through written statements by her mother and
        the testimony of a family friend. The CAAF refused to rule as to
        whether admission of these items was error, holding instead that any
        errors in admitting the evidence were harmless because the statements
        were cumulative to and consistent with the victim’s in-court testimony,
        and some of the statements were contained in another Government
        exhibit that was entered into evidence without defense objection.