Evi Ez Rules

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Rule 801. Definitions

Back 1

(a) "Statement" includes:

(1) An oral or written assertion.

or (2) Conduct (nonverbal) of a person, if that person intended it to be an assertion.

(b) "Declarant."
A person who makes a statement.

(c) "Hearsay."

1. A statement offered in evidence to prove that what the statement asserts is true.

2. Made by the declarant while not testifying.

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Prior statement by witness

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A prior statement of a witness is not hearsay if:
i. The declarant testifies and is subject to cross examination on the statement.
and ii. The statement is either:

(A) Inconsistent with the testimony and was given under oath (at a trial, hearing, other proceeding, or deposition).

or (B) Consistent with the testimony and is offered to dispute a charge (express or implied) that the declarant

1. Lied.

Or 2. Was subject to improper influence. or

3. Had an improper motive.
or (C) A statement that identifies a person who was seen (or heard).

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Admission by party-opponent

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1. A statement that is offered against a party is not hearsay if:

(A) The statement is the party's own statement (as an individual or as a representative).

or (B) The party seems to have adopted or believed the statement to be true.

Or (C) The person making the statement was autho¬rized by the party to speak.

or (D) The statement was:

1. Made by an agent or servant.

and 2. Made during the existence of the relation¬ship.
and

3. Concerning an issue within the scope of the relationship.
or (E) The statement was made by a co-conspirator dur
ing and in advancement of the conspiracy.

2. The contents of the statement will be considered, but that is not enough in itself to establish any of the following:

a. The declarant's authority under (C).

b. The agency or employment relationship (and its scope) under (D).

c. The existence of a conspiracy and the declarant's participation with the party against whom the statement is offered under (E).

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(1) Present sense impression

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This is a statement:

a. Describing or explaining an event/condition.
and

b. Made while or immediately after the declarant was experiencing the event/condition.

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(2) Excited utterance.

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This is a statement:

a. About a startling event/condition.
and

b. Made while the declarant was under the stress of excitement caused by the event/condition

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(3) Then existing mental, emotional, or physical condition.

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a. These are statements of the declarant's then existing (at time statement made):
1. State of mind.
2. Emotion.
3. Sensation.
4. Physical condition.

5. Examples: Intent, plan, motive, design, mental feeling, pain, bodily health.

b. This does not include statements of memory (to prove the fact remembered) or belief (to prove the fact believed) unless the statement is about the declarant's will.

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Statements for purposes of medical diagnosis or treatment

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These are statements:

a. Made for purposes of medical diagnosis or treatment.
and

b. Describing any of the following (as long as they are reasonably related to the diagnosis or treatment):

1. Medical history. Or

2. Past or present symptoms, pain, or sensations. Or

3. The general character of the cause of them.

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Recorded recollection

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a. This is a memorandum or record that:

1. Concerns an issue the witness had knowledge about, but can no longer remember enough to testify fully and accurately. and

2. Was made or recorded when the issue was fresh in the mind of the witness. and

3. Correctly represents the witness's knowledge.

b. If admitted, the memorandum or record may be read into evidence but may not be submitted as an exhibit (unless offered by an adverse party)

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Records of regularly conducted activity

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a. Records are not hearsay if:

1. They are one of the following items:
A. Memoranda.
or B. Reports.
or C. Records.
or D. Data compilations (in any form).

and 2. They record:
A. Acts.
Or B. Events.
Or C. Conditions.
or D. Opinions.
Or E. Diagnoses.

and 3. They are recorded:
A. By a person with knowledge.

or B. From information communicated by a person with knowledge.

and 4. The item was kept in the course of a regularly conducted business activity.

and 5. When recorded: Made at or near the time of the act or event.

and 6. It is regular practice of that business activity to make such records, etc.

and 7. All of the above (1-6) must be shown by the custodian of the records or some other qualified witness, unless there is a lack of trustworthiness (as shown by the source of information or the method or circumstances of preparation), in which case the evidence would be inadmissible.
This can also be shown by a Rule 902(11) certification, a Rule 902(12) certification, or by a statute permitting certification (e.g., 18 U.S.C. §3505: "Foreign Records in Criminal Cases").*

b. "Business" means a profit/nonprofit business, institution, association, profession, occupation, or calling of any kind

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Absence of entry in records kept in accordance with the provisions of paragraph (6).

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a. This includes: Evidence that shows that a matter never occurred/existed because:

1. It is normally included in a paragraph (6) record or report.

and 2. It is not included.

b. Exception: If the sources of information or other circumstances indicate lack of trustworthiness, then this type of evidence is inadmissible.

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Public records and reports

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Public records and reports are not hearsay if:

1. They are one of the following items:
A. Records.
or B. Reports.
or C. Statements.
or D. Data compilations (in any form).

and 2. They are recorded by:
A. Public offices.
or B. Public agencies.
and 3. They record the following material:

(A) The office's/agency's activities.

or (B) Matters that the office or agency observed and had to report on by duty of law unless they are matters observed by police officers/other law enforcement personnel in criminal cases.

Or (C) Factual findings are admissible in civil cases and against the government in criminal cases if produced by an investigation that was conducted with legal authority.

b. Exception: If the sources of information or other circumstances are not trustworthy

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Records of vital statistics

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Items included: Records/data compilations (in any form) of:
1. Births.
2. Fetal deaths.
3. Deaths.
4. Marriages.

b. Requirements:

1. The report was made to a public office.

and 2. The report was made pursuant to requirements of law.

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Absence of public record or entry

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This includes: Evidence proving the absence of:
1. Records.
2. Reports.
3. Statements.
4. Data compilation (in any form).
5. Nonexistence of a matter of which public records are regularly made and preserved.

b. Requirement: Evidence of the absence may either be:

1. A Rule 902 certification.

or 2. Testimony that after a diligent search no record, etc., was found.

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Records of religious organizations

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The hearsay rule does not apply to statements of the following in a regularly kept record of a religious organization:
a. Births.
b. Marriages.
c. Divorces.
d. Deaths.
e. Legitimacy.
f. Ancestry.
g. Relationship by blood or marriage.
h. Other similar facts of personal/family history

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Marriage, baptismal, and similar certificates

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a. This includes statements of fact contained in a certificate that the maker:

1. Performed a marriage.

or 2. Performed some other ceremony.

Or 3. Administered a sacrament.

b. These statements must have been made by:

1. A clergyman.

or 2. A public official.

or 3. Another person authorized by a religious organization or by law to perform the act.

c. Time of statement. Statement must have been made either:

1. At the time of the act.

or 2. At a reasonable time after the act.

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Family records

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Family records.

a. This includes statements concerning personal or family history.

b. These are statements that are contained in:
1. Family Bibles.
2. Genealogies.
3. Charts.
4. Engravings on rings.
5. Inscriptions on family portraits.
6. Engravings on urns, crypts or tombstones.
7. Other similar items

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Records of documents affecting an interest in property

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a. These are records proving:

1. The content of an original document intended to establish or affect a property interest.

and 2. The execution and delivery of the original document by each person who the document says executed it.

b. Requirements:

1. The record used as evidence must be a record of a public office.

and 2. An applicable statute must authorize the recording of that kind of document in that office.

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Statements in documents affecting an interest in property

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a. This includes statements in paragraph (14) records that are relevant to the purpose of the document.

b. Exception: When dealings with the property (since the document was made) have been inconsistent with the truth of the statement or the document's substance and intent

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Statements in ancient documents

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These are statements in documents that are:

a. Over 20 years old.

and b. Authentic (See Rule 901(b)(8)).

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Market reports, commercial publications

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a. Items included:
1. Market quotations.
2. Tabulations.
3. Lists.
4. Directories.
5. Other published compilations.

b. Requirement: Items must be generally used and relied upon by:

1. The public.

Or 2. Persons in particular occupations.

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(18) Learned treatises

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a. Items included: Statements in:

1. Published treatises.

Or 2. Periodicals.

Or 3. Pamphlets.

b. Subject matter of items must be:
1. History.
or 2. Medicine.
or 3. Another science or art.

c. Requirements:
1. The statement must be:

a. Called to the attention of an expert witness on cross examination.

Or b. Relied upon by the expert witness in direct examination.

2. The item must be a reliable authority as shown by:

a. The testimony of the witness.
or b. Admission of the witness.
Or c. Other expert testimony.
Or d. Judicial notice.

d. If admitted, these statements may be read into evidence but may not be submitted as an exhibit.

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Reputation concerning personal or family history

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a. The hearsay rule does not apply to reputation concerning a person's:
1. Birth.
2. Adoption.
3. Marriage.
4. Divorce.
5. Death.
6. Legitimacy.
7. Relationship by blood, adoption, or marriage.
8. Ancestry.
9. Similar personal or family history.

b. This includes reputation among:
1. Family members by blood, adoption, or marriage.
or 2. Associates.
Or 3. The community.

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(20) Reputation concerning boundaries or general history

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The hearsay rule does not apply to reputation in a community (arising before the controversy) as to:
1. Boundaries of lands in the community.
2. Customs affecting lands in the community.
3. Events of general history that are important to the community (or state or nation where the community is located).

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Reputation as to character

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The hearsay rule does not apply to reputation of a person's character among:
1. Associates.
or 2. The community.

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(22) Judgment of previous conviction.

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a. The hearsay rule does not apply to evidence of judgments used to prove any fact if:

1. Judgment is final. and
2. Judgment was entered either:

a. After a trial.

or b. After a guilty plea (not a nolo contendere plea — see Rule 410).

and 3. The crime adjudged has a penalty of either:

a. Death.
or b. More than one year in prison.

and 4. Requirement: The fact to be proved must be one that was essential to sustain the judgment.

b. This does not include judgments against persons other than the accused that are:

1. Offered by the government as evidence.

and 2. Offered in a criminal prosecution.

and 3. Offered for purposes other than impeachment.

c. The pendency of an appeal may be shown but has no effect on admissibility.

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(23) Judgment as to personal, family, or general history, or boundaries.

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a. The hearsay rule does not apply to judgments used to prove the following matters:
1. Personal, family, or general history.
2. Boundaries

b. Requirements:

1. The matter must have been essential to the judgment. and

2. The matter would be provable by evidence of reputation (see Rules 19, 20, 21).

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Definition of unavailability

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i. A declarant is "unavailable as a witness" where the declarant:

(1) Is exempt because the subject matter of his statement is privileged.

Or (2) Persists in refusing to testify (even after court orders to do so).

Or (3) Testifies to a lack of memory.

Or (4) Is dead or suffers a physical or mental sickness.

or (5) Is absent and the user of the statement cannot bring the
declarant in (or declarant's testimony for 804(b)(2), (3), or
(4)) by reasonable means.

ii. Exception: Where the above is a result of the user's wrongdoing intended to prevent a declarant from attending.

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(1) Former testimony

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a. When testimony was given either:

1. As a witness at another hearing in the same or a different case.

Or 2. In a deposition taken during the same or another case.

b. Requirement:

1. The current adverse party had to have a chance and similar motive then (i.e., when the testimony was formerly given) to develop the testimony by direct, cross, or redirect examination.

2. In civil cases, it suffices that a predecessor in interest to the adverse party now had a chance and motive.

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(2) Statement under belief of impending death

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This statement must be:

a. Made by declarant who believed that she was about to die.

and b. Concerning the cause or circumstances of the expected death.

and c. In either:

1. A civil action or proceeding.

or 2. A prosecution for homicide.

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(3) Statement against interest.

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a. Types of statements this refers to:

1. A statement so far against the declarant's financial interest.

Or 2. A statement tending to subject the declarant to civil or criminal liability.

Or 3. A statement tending to show that the declarant's claim against another is invalid.

or 4. A statement offered to exonerate the accused by exposing the declarant to criminal liability, only if supporting circumstances show that the statement is trustworthy.

b. Required standard: A reasonable person in the same position would not have made the statement unless he believed it was true.

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(4) Statement of personal or family history.

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This includes statements:
(A) Concerning the declarant's:
1. Birth.
Or 2. Adoption.
or 3. Marriage.
Or 4. Divorce.
or 5. Legitimacy.
Or 6. Ancestry.
Or 7. Relationship by blood, adoption, or marriage.
Or 8. Other similar facts of personal/family history
(even if the declarant had no way to obtain personal knowledge of the matter stated).

Or (B) Concerning 1-8 above, or death of another person, if the declarant was:

1. Related by blood, adoption, or marriage.

Or 2. Intimately associated with the other's family (i.e., she was likely to have accurate information concerning the issue).

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(6) Forfeiture by wrongdoing

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(6) Forfeiture by wrongdoing.
A statement offered against a party, where:

a. The party was involved in wrongdoing that was intended to make the declarant unavailable as a witness.

and b. The wrongdoing actually did make the declarant unavailable

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Rule 806. Attacking and Supporting Credibility of Declarant

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a. This rule applies when:
1. Hearsay statements are admitted into evidence.

2. Statements defined in Rule 801(d)(2)(C), (D), and (E) are admitted into evidence.

b. The credibility of the declarant may be attacked/supported by any evidence that would be admissible had the declarant testified as a witness.
c. The declarant does not have to be given a chance to deny or explain any evidence of her statement or conduct.
d. If a party against whom a hearsay statement has been admitted calls the declarant as a witness, the party may examine the declarant on the statement as if under cross-examination