1. Availability of the Declarant is immaterial for all of the 803 Exceptions

2. Under FRE 104(a), Judge determines whether the proponent of the OCS has established by a POE (More likely than not) that the 803 exception has been met

1. OCS must have been made while the declarant was perceiving an event or condition, OR immediately thereafter

2. OCS must describe OR explain the thing being perceived

1. There was a sufficiently startling event

2. OCS declarant was sufficiently startled by this event (reflection and reasoning are blocked)

3. OCS was made while the declarant remained under the stress of the excitement caused by the event

4. OCS must relate to the startling event

1. OCS must be a statement of the declarant's own state of mind, emotion, sensation, or physical condition

2. OCS must reflect a state of mind, emotion, sensation, or physical condition existing at the time the statement is made

• Exception only covers internal feelings: "I'm really excited (admissible as state of mind) because I just won the lottery (reason for excitement is external and not admissible under exception)"
• Forward-looking statements: When used as evidence of future conduct, statement admissible as evidence of declarant's future conduct
• Backward-looking statements: Excluded from exception (except for statements relating to the execution, revocation, identification, or terms of declarant's will). "I was sad yesterday," is not admissible under this exception.

1. Declarant believed that the OCS would result in medical diagnosis or treatment

2. A doctor would reasonably rely upon the OCS in diagnosing or treating a patient

Scope:

a. Statements made to doctors as part of litigation are "for diagnosis" and fall within exception

b. Statement need not be made to a doctor, simply must be made for purpose of obtaining medical treatment or diagnosis

c. Statements need not be made by the "sick" person (e.g. a parent's statement to a doctor about her child's condition qualifies)

d. Exception does not cover the diagnosis itself (e.g. "You have the flu")

FRE 803 - Documentary Exceptions

803(5) - Recorded Recollection

1. The witness made or adopted a record;

2. based on first-hand knowledge;

3. when the matter was fresh in the witness's memory;

4. the record accurately reflects the witness's knowledge;

5. at the time of trial, the testifying witness no longer has sufficient memory of the matter recorded to allow her to testify fully or accurately; AND

6. at trial, the witness must remember that the record is accurate

• Witness can read the record, but the record cannot be offered as an exhibit, except by the adverse party
• Since the record is a substitute for oral testimony, sending it to the jury room would give it undue emphasis over other oral testimony made by witnesses with better memories

1. OCS is a record that was made in the course of a regularly conducted business activity ("business" broadly defined, need not be for-profit)

2. Record was made at or near the time of the event recorded (i.e. while memory was fresh)

3. Record was made by someone who either had personal knowledge or based the record on information provided by someone who had personal knowledge

4. Record was made in the regular course of the particular activity involved

• Trustworthiness Clause: Even if elements are met, court can keep out the record if judge is suspicious of the evidence (ex. Palmer v. Hoffman, record made in anticipation of litigation). Don't confuse trustworthiness with issue of credibility regarding content of the record
• Establishing the Foundation: Don't need live testimony if you comply with the certification requirements of FRE 901(11) or (12)
• With Business Records, watch our for "Hearsay within Hearsay"

1. OCS must be a public record or report

2. Must set forth one of the following three kinds of things:

a. The activities of the office or agency that prepared the report

b. Matters the agency had a legal duty to observe and a legal duty to report upon (unless it is a criminal case and the record in question is a matter observed by law enforcement; this protects defendant's confrontation rights)

c. Factual findings resulting from an investigation made pursuant to authority granted by law (includes factually based conclusions or opinions, Beech Craft) --> records w/in this description cannot be introduced against a criminal defendant (no paper trials against criminal defendants!)

• Trustworthiness Clause: even if elements satisfied, court can keep out the record if the judge is suspicious of the evidence
• Establishing the Foundation: You do not need live testimony if you comply with the certification requirements of FRE 902(11) or (12)
• Multiple levels of hearsay are often an issue with public records

• Absence of a business or public record where one would ordinarily exist is a hearsay exception
• Analytically, the absence of a document is probably not hearsay, but the drafters included these exceptions to make the point clearly

FRE 612 - Writing used to refresh a witness's memory

1. Hearsay?

2. use at trial?

3. Rights of adverse party?

4. Trigger?

5. Foundational elements?

6. Practical Reality?

1. No. The testimony is the evidence and thus no hearsay problem. The trigger is NOT introduced into evidence

2. Witness is shown trigger to stimulate memory, trigger is the removed, and witness testifies

3. Opposing counsel has right to review, use it to cross, and offer into evidence

4. Can be a writing or a physical object or a leading question - anything goes

5. None. witness saying "I don't remember" is enough

6a. For opponent: Ensure that witness is not reading the document. If witness is reading, memory has not been refreshed, and proponent must satisfy 803(5)

6b. For proponent: Do not use anything to refresh recollection that will give the other side additional ammunition for cross-examination

FRE 804 - Exceptions to the Rule against Hearsay when the Declarant is unavailable as a witness

804(b)(1) Former Testimony

1. Declarant is unavailable [for a reason found under 804(a)]

2. OCS was given by a witness under oath at a prior legal proceeding

3. Identity/similarity of interests of party:(Criminal cases) Party against whom hearsay is offered was a party to the former proceeding; (Civil cases) Either (a) the party against whom the statement is now offered OR (b) a "predecessor in interest" of that party must have been a party to the former proceeding

4. At the former proceeding, the party against whom the hearsay is now offered: (a) had an opportunity to question the declarant [only an opportunity is required, not actual examination]; AND (b) had a similar motive to question the witness in each proceeding

• "Predecessor in interest" is broadly defined: predecessor need only have same opportunity and motive as party against whom evidence is now offered

1. Declarant is unavailable

2. At the time statement was made, declarant believed they were about to die (imminent) - Declarant does not have to be dead at time of trial, simply unavailable

3. OCS concerns the cause or circumstances of anticipated impending death

4. OCS is offered in a civil case OR prosecution for homicide

1. Declarant is unavailable

2. At time OCS was made, it was against declarant's interest such that a reasonable person in declarant's position would not have made the statement unless it was true (statement tends to subject the declarant to civil or criminal liability) - Statements that expose declarant to social ridicule or embarrassment don't count

3. Declarant knew OCS was against interest at time it was made

• Inculpating the Declarant in a criminal case: In a criminal trial, if an OCS is introduced that inculpates the declarant, there must be "corroborating circumstances" clearly indicating the trustworthiness of the statement (applies to statements offered by the defense or prosecution)
• Williamson: Some statements contain sections that are contrary to a speaker's penal interests, while other sections point the finger to another person. SCOTUS held that "non self-inculpatory" portions of a statement cannot be admitted under this exception

1. A party engaged or acquiesced in wrongdoing that was intended to and did procure the unavailability of the declarant as a testifying witness

a. Party's intent must have been silencing the witness from testifying; exception does not apply if the party's sole motive was to take revenge, or to act out on hatred, jealousy, anger, or some other reason

b. Wrongdoing: ranges from killing an informant to threatening a witness who ends up fleeing or hiding or refusing to testify due to fear

2. OCS is offered against the party

a. Thus, the wrongdoer cannot use this exception to get hearsay admitted

1. Reliability: The evidence must have "equivalent circumstantial guarantees of trustworthiness" as the evidence admitted under 803 and 804

2. Materiality

3. Relative probative value: The evidence in question has more probative value on the point than does any other admissible evidence the proponent can procure through reasonable efforts

4. Interests of Justice

5. Advance notice: Proponent's notice in advance of trial or hearing of his or her intention to offer the evidence (many courts allow mid-trial notice if there is enough time to put the opposite side on notice)