Thu. Apr 18th, 2024

Major Exceptions To The Hearsay Rule

 

REVIEW OF THE CALIFORNIA HEARSAY RULE – EVIDENCE CODE 1200

California’s “hearsay rule,” defined under Evidence Code 1200, is a law that states that third-party hearsay cannot be used as evidence in a trial. This rule is based on the principle that hearsay is often unreliable and cannot be cross-examined.

In other words, EC 1200 is the statute that makes hearsay generally inadmissible in any court proceedings. The description of hearsay is straightforward. It’s a statement made by someone other than the testifying witness that is offered to prove the truth.

The legal definition of the hearsay rule under Evidence Code 1200 says: “(a) “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated…except as provided by law, hearsay evidence is inadmissible.

The primary reason for this rule of evidence in California criminal cases is that hearsay statements are not reliable enough to be accepted as valid evidence. Further, they are not made under oath and can’t be subjected to cross-examination in court.

A traditional hearsay example includes a scenario where a witness testifies that a friend told them the defendant confessed to committing the crime. Still, the friend who allegedly told them does not provide testimony.

While the hearsay rule is intended to protect the defendant and ensure fairness, it is more than a little confusing because there are so many exceptions that it can be challenging to determine what is and is not “acceptable” hearsay. Our Los Angeles criminal defense attorneys will explore this rule in more detail below to clear up some of that confusion.

WHAT IS HEARSAY?

Evidence Code 1200 defines hearsay evidence as evidence of a statement made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.

To put it simply, hearsay occurs when a witness shares something someone else said out of court. It becomes “hearsay evidence” when the attorney attempts to use that out-of-court statement to confirm a fact they’re trying to establish.

A “statement” could mean a verbal statement, a written statement, or nonverbal conduct such as hand gestures, head shaking, or shoulder shrugging. This rule applies to criminal and civil trials and hearings held as part of the pretrial process and sentencing hearings.

WHY DOES THE HEARSAY RULE EXIST?

There are two main reasons why the hearsay rule exists. In general, they are not usually considered admissible evidence in court as they are deemed unreliable:

  • Third-hand statements are frequently unreliable. Like in the game “telephone,” the more often a word is repeated between people, the more it can deviate from what was first said. Hearsay is unreliable because human memory is often unreliable;
  • Hearsay can’t be cross-examined. One of the rights guaranteed in the Sixth Amendment is that defendants have the right to cross-examine those who testify against them. Hearsay is a statement made out of court by someone not on the stand, so the statement can’t be verified by cross-examination.

Suppose the prosecution offers a statement that is not made by a witness at a trial and claims their statement is true. In that case, the defense doesn’t have the opportunity to cross-examine that witness to prove their statement is not valid. Next, let’s examine the Evidence Code 1200 hearsay rule exceptions below.

WHAT ARE THE HEARSAY EXCEPTIONS?

Even though hearsay generally can’t be used as evidence against a defendant, California law has established more than a dozen exceptions to the rule—instances in which hearsay is considered admissible without being unfair to the defendant. Some of the most notable exceptions include the following but are not limited to.

Hearsay admissions made by defendant against themselves – Evidence Code 1220  

If a witness relates a self-incriminating statement allegedly made by the defendant out of court (e.g., admitting to the crime), that statement can be used against the defendant even though it’s technically hearsay.

Statements made against one’s interest – Evidence Code 1230

If the witness relates hearsay that damages their interests (e.g., implicates them in a crime), it’s more reliable because no reasonable person would inflict self-damage unless the statement were true. This is known as “declarations against interest,” which are out-of-court statements contrary to the speaker’s best interest that no rational person would make unless true.

Prior inconsistent statements – Evidence Code EC 1235

Hearsay may be admissible when used to show inconsistency in a witness’ statements on the stand, e.g., a witness relates something said by another witness that doesn’t jibe with what the first witness said in court. This is considered reliable because it impeaches, or discredits, the witness’ testimony.

Further, under Evidence Code 1236 EC, if a prior inconsistent statement of a witness is presented at trial as noted above, or the other side suggested their testimony is fabricated or biased, then the witness’s side could give their prior out-of-court statements that are consistent with their testimony to show it’s reliable.

Deathbed/dying declarations – Evidence Code 1242

A dying declaration is a statement made by someone on their deathbed about how they were injured or what happened to them. These are allowed as evidence because it’s not likely that someone would lie about information relevant to their death when they believe it is imminent.

Spontaneous statements – Evidence Code 1240

A spontaneous statement is one by a speaker spontaneously as an event is happening—a statement that is not the result of questioning by law enforcement or another party. These statements are admissible as hearsay because the speaker does not tailor their story to fit a pre-determined narrative.

Previously recorded recollections or identification – Evidence Code 1237

If a witness’s memory of an event was previously captured in a written or recorded format (e.g., via notes, video, audio recordings), that may be used as hearsay evidence if the witness’s memory of the event is fuzzy and the witness testifies that the recollection is accurate. This exception applies to both identification of the defendant in a lineup and statements made by witnesses about relevant events.

Business records – Evidence Code 1271

Records kept in the ordinary course of business are considered reliable evidence and thus may be used as hearsay in court. This exception includes everything from ledgers to financial statements to email correspondence.

Certain written records are admissible evidence if they were made in the regular course of a business and made near the time of the act. Further, a qualified witness will have to testify how it was prepared to show its reliability.

Statements made by child abuse and elder abuse victims.

Victims of child abuse or child sex crimes under the age of 12 do not have to testify in court; neither do elder abuse victims (elder dependents over age 65). In such cases, video or recorded statements made by these victims are admissible in court.

Out-of-court statements in cases involving serious sex crimes against children, like Penal Code 261 PC rape and Penal Code 288 PC lewd acts with a minor, are admissible if they are made by a child under 12 and made in a written report by police or an employee in the welfare department.

Unavailable witnesses for serious felonies only – Evidence Code 1350

In serious felony cases, prior statements made by a witness who was killed or kidnapped to prevent them from testifying may be admitted as hearsay evidence.

This exception to the rule applies in a California criminal trial when the defendant is charged with a serious felony crime. There is clear and convincing evidence that the person making the hearsay statement has been made unavailable by the defendant, either through homicide or kidnapping, along with other requirements.

Other exceptions to the hearsay rule include former testimony under Evidence Code 1291, physical injury statements, and Penal Code 368 elder abuse statements under Evidence Code 1380. source


Hearsay Evidence

The rule against hearsay is deceptively simple, but it is full of exceptions. At its core, the rule against using hearsay evidence is to prevent out-of-court, second hand statements from being used as evidence at trial given their potential unreliability.

Hearsay Defined

Hearsay is defined as an out-of-court statement, made in court, to prove the truth of the matter asserted. These out-of-court statements do not have to be spoken words, but they can also constitute documents or even body language. The rule against hearsay was designed to prevent gossip from being offered to convict someone.

Exceptions to the Rule Against Hearsay Evidence

Hearsay evidence is not admissible in court unless a statue or rule provides otherwise. Therefore, even if a statement is really hearsay, it may still be admissible if an exception applies. The Federal Rules of Evidence (FRE) contains nearly thirty of these exceptions to providing hearsay evidence.

Generally, state law follows the rules of evidence as provided in the Federal Rules of Evidence, but not in all cases. The states can and do vary as to the exceptions that they recognize.

Most Common Hearsay Exceptions

There are twenty-three exceptions in the federal rules that allow for out-of-court statements to be admitted as evidence even if the person made them is available to appear in court. However, only a handful of these are regularly used. The three most popularly used exceptions are:

  1. Present Sense Impression. A hearsay statement may be allowed if it describes or explains an event or condition and was made during the event or immediately after it.
  2. Excited Utterance. Closely related to the present sense impression is the hearsay exception for an excited utterance. The requirements for this exception to apply is that there must have been a startling event and the declarant made the statement while under the excitement or stress of the event.
  3. Then-Existing Mental, Emotional, or Physical Condition. A statement that is not offered for the truth of the statement, but rather to show the state of mind, emotion or physical condition can be an exception to the rule against hearsay evidence. For instance, testimony that there was a heated argument can be offered to show anger and not for what was said.

Other Exceptions to Rule Against Hearsay Evidence

In addition to the three most common exceptions for hearsay, there are several other statements that generally will be accepted as admissible evidence. These fall into three categories:

  • Medical: Statements that are made to a medical provider for the purpose of diagnosis or treatment.
  • Reputation: Statements about the reputation of the person, their family, or land boundaries.
  • Documents: These documents typically include business records and government records, but can include learned treatises, family records, and church records.

Hearsay Exceptions if the Declarant is Unavailable to Testify in Court

There are exceptions to the rule against the admissibility of hearsay evidence that apply only when the declarant is unavailable. A declarant is considered unavailable in situations such as when:

  1. The court recognizes that by law the declarant is not required to testify;
  2. The declarant refuses to testify;
  3. The declarant does not remember;
  4. The declarant is either dead or has a physical or mental illness the prevents testimony; or
  5. The declarant is absent from the trial and has not been located.

If the declarant is deemed to be unavailable, then the following type of evidence can be ruled admissible in court. This includes:

  1. Former testimony;
  2. Statements made under belief of imminent death;
  3. Statements against a person’s own interest; and
  4. Statements of personal or family history.

Catchall Exception to the Rule against Hearsay

Finally, the last exception is the so-called “catchall” rule. It provides that evidence of a hearsay statement not included in one of the other exceptions may nevertheless be admitted if it meets these following conditions:

  • It has sound guarantees of trustworthiness
  • It is offered to help prove a material fact
  • It is more probative than other equivalent and reasonably obtainable evidence
  • Its admission would forward the cause of justice
  • The other parties have been notified that it will be offered into evidence

Defenses Against Hearsay Evidence

If the court admits hearsay evidence under one the exceptions, then the credibility of the person offering the statement may be attacked. This attack must be supported by admissible evidence, but can be prior inconsistent statement, bias, or some other evidence that would show that the declarant has a reason to lie or not to remember accurately. source


A. Identifying Hearsay Testimony or Documents

Hearsay is an out-of-court statement offered to prove the truth of the matter
stated. Cal. Evid. Code § 1200(a); Fed. R, Evid. (“FRE”) 801(c).

The hearsay rule excludes out-of-court statements submitted for their truth, except
as provided by law —such as when it falls within an established exception. Cal, Evid.
Code § 1220, et seq.; FRE 801(c), 803, 804 and 807.

The rationale for excluding out-of-court statements attempted to be used in court
for their truth is the lack of tnistworthiness and reliability of such evidence.
Statements made out of court were not subject to cross examination at the time
they were made and, as such, may be unreliable as substantive proof. Moreover, cross
examination at trial is not necessarily a substitute for this problem of lack of cross
examination at the time the statement was made. Buchanan v. Nye (1954) 128
Cal.App.2d 582, 585; FRE SO1(d)(i) (Adv. Comm. Notes)
.

This remains true even if the out-of-court statement was made under oath, such as
in a prior deposition, sworn declaration, report, or even at a prior trial or hearing.

Out-of-court statements used to prove the truth of the matter stated are admissible,
however, if they fall within one of the recognized exceptions to the rule. These
exceptions carry the necessary indicia of reliability and trustworthiness from the
circumstances under which they are made.

Moreover, what may, at first blush, appear to be hearsay, may in fact be non
hearsay.

Conduct may or may not be hearsay depending on the circumstances. Non-verbal
conduct that is intended to be a substitute for words is hearsay if offered in Court to prove the truth of what was intended to be a communication. FRE SO 1(a) and. (e); Cal. Evid. Code § 225

Where the out-of-court statement is offered for some purpose other than for its
tnith, it is not hearsay. Cal. Evid. Code § 1200(a)FRE 801(c). The hearsay rule is not
implicated where the issue is whether something happened, or something was said, or
done. In these situations, the statements or events or dates are operative facts and hence.non-hearsay. See, e.g., FRE 801(c).

Likewise, out-of-court statements used for impeachment purposes are not hearsay.
The out-of-court statements are not being used for their truth, but rather to attack the
witness’ credibility. See, e.g., FRE 613.

An out-of-court statement by a party opponent may be used for its truth and for
impeachment purposes.

Examples of statements that may be deemed non-hearsay include: alleging false
representations, statements related to real property transactions, contract formation,
defamation, discriminatory practices, authorization, knowledge of events, to establish
residency, identity, and the like.

B. Objecting to an Opponent’s Use of Hearsay

  1. Evaluate for what purpose ostensible hearsay evidence will be used. (Is it hearsay?)
  2. If it is, is there a recognized exception or statute that permits its use?
  3. Motions in limine.
  4. Authentication and foundation.
  5. Preliminary determinations by court. Cal. Evid. Code §§ 402, et seq.
  6. Hearsay proponent bears the burden of proving non-hearsay, hearsay but
    with an exception, non-availability of witness, and so forth.

C. Demonstrating How Evidence Falls Under Hearsay Exception

The “classic” hearsay exceptions are:

  1. Admissions. Cal. Evid. Code §§ 1220-1227, FRE 801{d){2)(A}-{E).
  2. Declarations against interest. Cal. Evict. Code § 1230; FRE 804(b)(3).
  3. Prior statements or testimony. Cal. Evict. Code §§ 1235-1238, 1291-1293;
    FRE $04(b)(1); cf. FRE 801(d)(1)(A)
    .
  4. Present-sense impressions/excited utterances. Cal. Evict. Code §§ 1240,
    1241; FRE 803(1)
    .
  5. Dying declarations. Cal. Evict. Code § 1242; FRE 804(b)(2).
  6. Judgments, orders, etc. are hearsay, but may be used for non-hearsay
    purposes, and judicial notice of their existence may be taken for purposes
    of proving a prior adjudication took place for yes judicata/collateral
    estoppel purposes.
  7. State of mindlbody. Cal. Evict. Code §§ 1250, 1251; FRE 803(5).
  8. Business records. Cal. Evict. Code §§ 1270, 1271, 1272; FRE 803(6) and (7).
  9. Public or official records. Cal. Evict. Code §§ 1280-1284; cf. §§ 1270
    1272; FRE 803(8)
    .
  10. Federal hearsay “catch-all” exception. FRE 807 (A proposed amendment
    is to take effect December 1, 2019.)

D. Handling Double Hearsay

Each level of hearsay must be analyzed independently, and each level must fall
within one of the established exceptions or qualify as non hearsay. Cal. Evict. Code §
1201; FRE 805
.

E. Avoiding Hearsay Objections

Think carefully about the purpose of the evidence you are seeking to admit. Is it
even necessary? Is it cumulative?

Does the use of the evidence Have more than one purpose -one. which is not
hearsay?

Have you established relevance and laid the proper foundation?

Have you considered California Evidence Code § 352

Section 352. 352. The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

Have you considered California Evidence Code §  FRE 403?

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Notes

(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1932; Apr. 26, 2011, eff. Dec. 1, 2011.)

Notes of Advisory Committee on Proposed Rules

The case law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme. Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission. Slough, Relevancy Unraveled, 5 Kan. L. Rev. 1, 12–15 (1956); Trautman, Logical or Legal Relevancy—A Conflict in Theory, 5 Van. L. Rev. 385, 392 (1952); McCormick §152, pp. 319–321. The rules which follow in this Article are concrete applications evolved for particular situations. However, they reflect the policies underlying the present rule, which is designed as a guide for the handling of situations for which no specific rules have been formulated.

Exclusion for risk of unfair prejudice, confusion of issues, misleading the jury, or waste of time, all find ample support in the authorities. “Unfair prejudice” within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.

The rule does not enumerate surprise as a ground for exclusion, in this respect following Wigmore’s view of the common law. 6 Wigmore §1849. Cf. McCormick §152, p. 320, n. 29, listing unfair surprise as a ground for exclusion but stating that it is usually “coupled with the danger of prejudice and confusion of issues.” While Uniform Rule 45 incorporates surprise as a ground and is followed in Kansas Code of Civil Procedure §60–445, surprise is not included in California Evidence Code §352 or New Jersey Rule 4, though both the latter otherwise substantially embody Uniform Rule 45. While it can scarcely be doubted that claims of unfair surprise may still be justified despite procedural requirements of notice and instrumentalities of discovery, the granting of a continuance is a more appropriate remedy than exclusion of the evidence. Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Art. VI. Extrinsic Policies Affecting Admissibility), Cal. Law Revision Comm’n, Rep., Rec. & Studies, 612 (1964). Moreover, the impact of a rule excluding evidence on the ground of surprise would be difficult to estimate.

In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction. See Rule 106 [now 105] and Advisory Committee’s Note thereunder. The availability of other means of proof may also be an appropriate factor.

source


California Hearsay Objections – Hearsay Admission Exceptions

Admissions – Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity. [Cal. Evid. Code § 1220]

Adoptive Admissions – Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.[Cal. Evid. Code § 1221]

Authorized Admissions – Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: (a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and (b) The evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court’s discretion as to the order of proof, subject to the admission of such evidence. [Cal. Evid. Code § 1222]

Co-Conspirators’ Admissions – Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:

  • (a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy;
  • (b) The statement was made prior to or during the time that the party was participating in that conspiracy;
  • and (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court’s discretion as to the order of proof, subject to the admission of such evidence. [Cal. Evid. Code § 1223]

Declarant’s Liability – When the liability obligation, or duty of a party to a civil action is based in whole or in part upon the liability, obligation, or duty of the declarant, or when the claim or right asserted by a party to a civil action is barred or diminished by a breach of duty by the declarant, evidence of a statement made by the declarant is as admissible against the party as it would be if offered against the declarant in an action involving that liability, obligation, duty, or breach of duty. [Cal. Evid. Code § 1224]

Statement of Right or Title – When a right, title, or interest in any property or claim asserted by a party to a civil action requires a determination that a right, title, or interest exists or existed in the declarant, evidence of a statement made by the declarant during the time the party now claims the declarant was the holder of the right, title, or interest is as admissible against the party as it would be if offered against the declarant in an action involving that right, title, or interest. [Cal. Evid. Code § 1225]

Minor’s Injuries – Evidence of a statement by a minor child is not made inadmissible by the hearsay rule if offered against the plaintiff in an action brought under Section 376 of the Code of Civil Procedure for injury to such minor child. [Cal. Evid. Code § 1226]

Wrongful Death – Evidence of a statement by the deceased is not made inadmissible by the hearsay rule if offered against the plaintiff in an action for wrongful death brought under Section 377 of the Code of Civil Procedure. [Cal. Evid. Code § 1227]

Declarations Against Interest – Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true. [Cal. Evid. Code § 1230]

Prior Inconsistent Statement – Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770. [Cal. Evid. Code § 1235]

Prior Consistent Statement – Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791. [Cal. Evid. Code § 1236]

Past Recollection Recorded [Cal. Evid. Code § 1237]

  • (a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:
    • (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness’ memory;
    • (2) Was made
      • (i) by the witness himself or under his direction or
      • (ii) by some other person for the purpose of recording the witness’ statement at the time it was made;
    • (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and
    • (4) Is offered after the writing is authenticated as an accurate record of the statement.
  • (b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

Prior Identification – Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and: (a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence; (b) The statement was made at a time when the crime or other occurrence was fresh in the witness’ memory; and (c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time. [Cal. Evid. Code § 1238]

Spontaneous Statement – Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception. [Cal. Evid. Code § 1240]

Contemporaneous Statement – Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Is offered to explain, qualify, or make understandable conduct of the declarant; and (b) Was made while the declarant was engaged in such conduct. [Cal. Evid. Code § 1241]

Dying Declaration – Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death. [Cal. Evid. Code § 1242]

State of Mind [Cal. Evid. Code § 1250]

  • (a) Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when:
    • (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or
    • (2) The evidence is offered to prove or explain acts or conduct of the declarant.
  • (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.

Statement of Declarant’s Previously Existing Mental/Physical State – Subject to Section 1252, evidence of a statement of the declarant’s state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if: (a) The declarant is unavailable as a witness; and (b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation.[Cal. Evid. Code § 1251]

Testamentary Statements [Cal. Evid. Code § 1260]

Business Records – Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

  • (a) The writing was made in the regular course of a business;
  • (b) The writing was made at or near the time of the act, condition, or event;
  • (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
  • (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness. [Cal. Evid. Code § 1271]

Absence of Business Records – Evidence of the absence from the records of a business of a record of an asserted act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the nonoccurrence of the act or event, or the nonexistence of the condition, if:

  • (a) It was the regular course of that business to make records of all such acts, conditions, or events at or near the time of the act, condition, or event and to preserve them; and
  • (b) The sources of information and method and time of preparation of the records of that business were such that the absence of a record of an act, condition, or event is a trustworthy indication that the act or event did not occur or the condition did not exist. [Cal. Evid. Code § 1272]

Official Records – Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: (a) The writing was made by and within the scope of duty of a public employee. (b) The writing was made at or near the time of the act, condition, or event. (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness. [Cal. Evid. Code § 1280]

Absence of Official Records – Evidence of a writing made by the public employee who is the official custodian of the records in a public office, reciting diligent search and failure to find a record, is not made inadmissible by the hearsay rule when offered to prove the absence of a record in that office [Cal. Evid. Code § 1284]

Vital Statistics – Evidence of a writing made as a record of a birth, fetal death, death, or marriage is not made inadmissible by the hearsay rule if the maker was required by law to file the writing in a designated public office and the writing was made and filed as required by law. [Cal. Evid. Code § 1281]

California Vital Statistics [Cal. Health and Safety Code § 10577]

Federal Records [Cal. Evid. Code § 1282, 1283]

A written finding of presumed death made by an employee of the United States authorized to make such finding pursuant to the Federal Missing Persons Act (56 Stats. 143, 1092, and P.L. 408, Ch. 371, 2d Sess. 78th Cong.; 50 U.S.C. App. 1001–1016), as enacted or as heretofore or hereafter amended, shall be received in any court, office, or other place in this state as evidence of the death of the person therein found to be dead and of the date, circumstances, and place of his disappearance. [Cal. Evid. Code § 1282]

An official written report or record that a person is missing, missing in action, interned in a foreign country, captured by a hostile force, beleaguered by a hostile force, beseiged by a hostile force, or detained in a foreign country against his will, or is dead or is alive, made by an employee of the United States authorized by any law of the United States to make such report or record shall be received in any court, office, or other place in this state as evidence that such person is missing, missing in action, interned in a foreign country, captured by a hostile force, beleaguered by a hostile force, besieged by a hostile force, or detained in a foreign country against his will, or is dead or is alive. [Cal. Evid. Code § 1283]

Former Testimony [Cal. Evid. Code §§ 1290, 1291, 1292]

As used in this article, “former testimony” means testimony given under oath in: (a) Another action or in a former hearing or trial of the same action; (b) A proceeding to determine a controversy conducted by or under the supervision of an agency that has the power to determine such a controversy and is an agency of the United States or a public entity in the United States; (c) A deposition taken in compliance with law in another action; or (d) An arbitration proceeding if the evidence of such former testimony is a verbatim transcript thereof. [Cal. Evid. Code § 1290]

  • (a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:
    • (1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or
    • (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.
  • (b) The admissibility of former testimony under this section is subject to the same limitations and objections as though the declarant were testifying at the hearing, except that former testimony offered under this section is not subject to:
    • (1) Objections to the form of the question which were not made at the time the former testimony was given.
    • (2) Objections based on competency or privilege which did not exist at the time the former testimony was given. [Cal. Evid. Code § 1291]
  • (a) Evidence of former testimony is not made inadmissible by the hearsay rule if:
    • (1) The declarant is unavailable as a witness;
    • (2) The former testimony is offered in a civil action; and
    • (3) The issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party against whom the testimony is offered has at the hearing.
  • (b) The admissibility of former testimony under this section is subject to the same limitations and objections as though the declarant were testifying at the hearing, except that former testimony offered under this section is not subject to objections based on competency or privilege which did not exist at the time the former testimony was given. [Cal. Evid. Code § 1292]

Judgments [Cal. Evid. Code § 1300, 1302]

Ancient Writings [Cal. Evid. Code § 1331]

Commercial and Scientific Publications [Cal. Evid. Code § 1340]

General Interest [Cal. Evid. Code § 1341]

Corroborative Evidence [PG&E v. G.W. Thompson Drayage & Rigging Co. (1968) 69 Cal.2d 33; Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608]

Family History Statement [Cal. Evid. Code § 1310]

Family History Record [Cal. Evid. Code §§ 1312, 1315, 1316]

Family History Reputation [Cal. Evid. Code § 1314]

Community History Reputation [Cal. Evid. Code § 1320]

Public Interest in Property [Cal. Evid. Code § 1321]

Boundary Reputation and Custom [Cal. Evid. Code § 1322]

Property Recital [Cal. Evid. Code § 1330]

Boundary Statement [Cal. Evid. Code § 1323]

Character/Reputation – Evidence of a person’s general reputation with reference to his character or a trait of his character at a relevant time in the community in which he then resided or in a group with which he then habitually associated is not made inadmissible by the hearsay rule. [Cal. Evid. Code § 1324]

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The California Supreme Court’s New Limitation On An Expert’s Ability To Rely On Hearsay Evidence

People v. Sanchez created new and significant challenges to dealing with hearsay evidence

As plaintiffs’ attorneys, we have many obstacles to overcome in collecting and presenting admissible evidence to a jury whether the evidence be in the form of physical evidence, witness testimony, or documentary evidence. When it comes to documentary evidence, the obstacles can be even higher to overcome given the rules of hearsay and the practicality of finding and deposing individuals who have stated opinions or facts contained within the documents.

For decades, plaintiff and defense attorneys alike, have been able to utilize expert testimony in order to present otherwise inadmissible hearsay evidence under the theory that the evidence was not in fact being presented to offer the truth of the matter contained within it, but was being offered only as the basis for the expert opinion. On June 30, 2016, the California Supreme Court published it’s ruling in the case of People v. Sanchez, (2016) 63 Cal.4th 665, which completely changed an attorney’s ability to present hearsay evidence through expert testimony and which has created new and significant challenges to dealing with hearsay evidence.

While Sanchez addresses several issues, including the Sixth Amendment Confrontation Clause and what constitutes “testimonial hearsay,” this article will focus on the new dynamic created by Sanchez in relation to California Evidence Code sections 801 and 802 and the practical challenges which now face plaintiffs’ attorneys in collecting and presenting admissible evidence.

Expert reliance on general knowledge hearsay vs. case-specific hearsay

Hearsay evidence is formally defined as “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter asserted.” (Cal. Evidence Code § 1200(a).) Dating back to common law and early case law, experts have been given significant latitude regarding what hearsay evidence they are allowed to testify about. Since that time Courts have separated the type of hearsay to which an expert is testifying into two categories: (1) background information and general knowledge, and (2) case-specific facts. While general knowledge hearsay may include mathematics, physics, medical testing or other accepted mediums of knowledge within a given experts profession, case-specific fact hearsay relates to particular events or participants to which the expert has no actual personal knowledge.

The rules of hearsay have traditionally not barred an expert from testifying regarding his general knowledge in his field of expertise, recognizing that experts frequently acquire their knowledge from hearsay and that to reject experts from testifying regarding their professional knowledge would ignore accepted professional methods and insist on impossible standards. The Sanchez ruling did not disrupt this standard as it states “our decision does not call into question the propriety of an expert’s testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field. Indeed, an expert’s background knowledge and experience is what distinguishes him from a lay witness, and, as noted, testimony regarding such background information has never been subject to exclusion as hearsay.” (Id. at 685.)

What the Sanchez court did change however, was the long accepted and evolved premise of how an expert could rely on, and testify, regarding case-specific facts contained in hearsay evidence. At common law, experts were typically precluded from testifying in regard to case-specific facts to which they had no knowledge. However, even prior to the California Evidence Code being enacted in 1965 there were already exceptions as to when an expert could relate otherwise inadmissible case-specific hearsay such as testimony regarding property valuation and medical diagnoses. The justification for these exceptions was very practical: (1) the expert routinely used the same kinds of hearsay in their conduct outside the court, (2) the expert’s expertise included experience in evaluating the trustworthiness of the hearsay sources, and (3) the desire to avoid needlessly complicating the process of proof. (Kaye et al., The New Wigmore: Expert Evidence (2d ed. 2011) § 4.5.1 p. 153-154.)

Case-specific hearsay: A thing of the past?

In 1965 when the California Legislature enacted the evidence code, the common law exceptions allowing experts to rely on and relate case-specific fact hearsay, and the reasoning behind said exceptions, were codified into Cal. Evidence Code § 801 and § 802. Cal. Evidence Code § 801(b) provides that an expert may provide an opinion “based on matter (including his special knowledge, skill, experience, training and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissiblethat is of a type that reasonably may be relied upon by an expert in forming an opinion upon which the subject to which his testimony relates, unless an expert is precluded by law in from using such matter as a basis for his opinion.” (italics added).

Similarly, Cal. Evidence Code § 802 allows an expert to “state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion.” Based on this codification, the ability of an expert to testify regarding case-specific facts had evolved. Under this precept, reliability of the information used by experts in forming their opinion is the key inquiry as to whether the expert testimony can be admitted. Additionally, the expert would be entitled to explain to the jury the matter upon which he relied, thus making otherwise inadmissible case-specific hearsay evidence admissible as the basis for the expert’s opinion, while remaining inadmissible to prove the truth of the matter asserted.

This is the paradigm that existed for two decades. As long as the evidence was reasonably reliable, ordinarily inadmissible case-specific hearsay evidence could be admitted as the basis for an expert’s opinion, assuming the expert relied on said evidence, regardless of whether the evidence was hearsay because it was not going to prove the truth of the matter asserted, it was merely going to show the basis for the expert opinion. Since the evidence is not going to prove the truth of the matter asserted, it is by definition not hearsay. In drafting the Code of Evidence, the California Legislature was obviously mindful of the practical applications of these rules. To disallow experts from explaining the basis for their opinions based on hearsay, despite the hearsay documents being reasonably reliable, creates an untenable court system and a near impossible burden in obtaining admissible evidence.

The above described rule regarding an expert’s ability to rely on and recite case-specific hearsay evidence was not simply allowed with free reign. As exemplified by the Supreme Court in People v. Coleman, (1985) 38 Cal.3d 69, the Court must still use its discretion in deciding what information is admissible based on weighing its probative value versus the potential prejudicial effect. (Cal. Evidence Code § 352.) In Coleman, the Supreme Court ruled that allowing the prosecution’s expert to recite hearsay letters of the Defendant’s deceased wife constituted reversible error in that, pursuant to Cal. Evidence Code § 352 the highly prejudicial effect of the letters far outweighed any probative value. The letters should therefore not have been allowed to be admitted as the basis for the prosecution expert’s opinion.

The Supreme Court subsequently created a two-step approach to balancing an expert’s need to consider extrajudicial matters, and a jury’s need for information sufficient to evaluate an expert opinion, so as not to conflict with the interest in avoiding substantive use of unreliable hearsay. The Court in People v. Montiel, (1993) 5 Cal.4th 877 ruled that “most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth.” Furthermore, “sometimes a limiting instruction will not be enough. In such cases, Cal. Evidence Code § 352 authorizes the court to exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.” (Id. at 919.) Simply put, the Montiel Court kept in effect the idea that experts may rely on, and relate to the jury, case-specific hearsay evidence as long as there is a limiting instruction to the jury that said evidence is not going to prove the truth of the matter asserted but instead is going only to show the basis for the expert opinion. The Montiel Court also specifically notes the need for courts to use the discretion afforded them by Cal. Evidence Code § 352 so as not to allow unreliable or prejudicial hearsay evidence to be admitted under the guise of the basis for an expert opinion.

It is the standard created by the Montiel Court which has governed litigators’ ability to admit case-specific hearsay evidence since 1993. Under this standard the admissibility of case-specific fact hearsay simply turned on whether a jury could properly follow the court’s limiting instruction regarding the nature of the hearsay evidence. If the limiting instruction is not sufficient, the Court has discretion to exclude the evidence under Cal. Evidence Code § 352. The evidence was not considered to be hearsay because it did not go to prove the truth of the matter, it only served as the basis for the expert’s opinion. The Montiel Court kept in effect the practical nature of allowing an expert to rely on and relate to the jury case-specific hearsay evidence as long as the evidence was reliable and not overly prejudicial. For over 20 more years, California litigators used experts to admit case-specific hearsay evidence as the basis for their opinion. As long as the evidence was reasonably reliable and not overly prejudicial, a limiting instruction was sufficient to allowing the evidence to be admitted regardless of whether it contained hearsay. This practical approach allowed litigators to admit hearsay evidence through their expert without having to break down the walls of hearsay, which in many cases would be impossible. In June 2016 the California Supreme Court decided to destroy this practical dynamic and ruled that whenever an expert relates case-specific fact hearsay they are in fact offering that hearsay content for its truth.

The new bright line rule on case-specific hearsay

The Sanchez case deals with several issues, including the Sixth Amendment confrontation clause and what constitutes “testimonial hearsay;” but the most astounding ruling that comes out of the Sanchez decision, and the one that is most relevant to any civil litigator is this: “If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be admitted through an applicable hearsay exception. Alternatively the evidence can be admitted through an appropriate witness.” (Id. at 684.) The Sanchez Court specifically and purposely destroyed the pre-existing standard regarding what case-specific hearsay evidence an expert can rely on, stating that, “we conclude this paradigm (allowing an expert to rely on case-specific hearsay evidence with a limiting instruction that the evidence goes only to the basis of the expert opinion and not to the truth of the matter asserted) is no longer tenable because an expert’s testimony regarding the basis for an opinion must be considered for its truth by the jury.” (Id. at 679.)

The Sanchez court recites its reasoning for this new paradigm by stating that when an expert relies on hearsay to prove case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert’s opinion, it cannot be logically asserted that the hearsay content is not being offered for its truth. (Id. at 682-683.) The expert is essentially telling the jury, “you should accept my opinion because it is reliable in light of these facts upon which I rely,” which means the expert is offering those facts for their truth. (Id. at 686.) While this reasoning may seem logical, it is certainly not practical, and does not comport with the Legislature’s 1965 enactment regarding evidence, nor the 50 years of case law which has followed.

The Sanchez Court makes sure that there is no confusion about the new rule they are putting forth. “In sum, we adopt the following rule: when any expert relates to the jury case-specific out-of-court statements, and treats the contents of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. It cannot be logically maintained that the statements are not being admitted for their truth.” We disapprove our prior decisions1 concluding that an expert’s basis testimony is not being offered for the truth, or that a limiting instruction, coupled with the trial court’s evaluation of the potential prejudicial impact of the evidence under Cal. Evidence Code § 352 sufficiently addresses hearsay [and confrontation clause] concerns.” (Ibid.)

The Sanchez Court destroyed the ability to allow experts to rely on case-specific hearsay evidence unless it is subject to a hearsay exception. It purposefully and with specificity disapproved of prior California Supreme Court decisions which allowed such evidence to be relied upon and admitted. Going forward, litigators will need to be very aware of the Sanchez opinion and take proactive steps to ensure that important evidence is not deemed inadmissible hearsay, given that an expert’s reliance on said evidence will no longer be sufficient to have it admitted.

What are the practical ramifications of this decision?

The ramifications of this decision are significant. Whether talking about medical records, police reports, incident reports, or witness statements, it is commonly necessary to rely on hearsay evidence to some degree. Prior to Sanchez, as long as the source of the information was reliable, an expert could base their opinion on said evidence and the evidence could be admissible to show the basis for the expert’s opinion. That is no longer the case.

Pursuant to Sanchez, all case-specific hearsay evidence must now be subject to a hearsay exception in order to be admissible or relied on by an expert. It is well known that there are several hearsay exceptions to Cal. Evidence Code § 1200(a) including but not limited to business records, party admissions, prior consistent or inconsistent statements, dying declarations, non-party declarations against interest, statements regarding state of mind or physical condition, and past recollection recorded to name a few.2 It is now more important than ever to be familiar with these exceptions and know the full extent to which they will create an exception to hearsay. Evidence obviously comes in all shapes and forms and some hearsay issues will be more easily overcome then others based on how practical, or possible, it is to break down the wall of hearsay.

Medical records: An example

Take medical records as an example. Medical records may be the least affected by Sanchez given the hearsay exceptions available and the practicality of turning hearsay evidence into actual admissible evidence through witness testimony. Medical records themselves would typically be subject to a business record exception allowing portions of the record to be admissible. Statements made by the patient contained within the records can commonly be admitted through a state of mind or physical condition exception to hearsay. But what about the physician opinions and diagnoses contained within the medical records?

Prior to Sanchez, a proper expert could review the records and form their own opinion based on the diagnoses of other physicians. Those medical records, including the physicians’ opinions contained within them, would then be admissible in order to show the basis for that expert’s opinion. Not anymore. Now, if an attorney is interested in admitting a medical record which includes a physician’s opinion, that attorney will be required to depose that physician so as to make the opinion no longer hearsay. In some cases this may have occurred anyway, in others, this may be an incredible burden to overcome. At least when it comes to medical records, the physician is identified and it is at least feasible to find and depose them. Just hope they are still in the area.

Police reports

When it comes to police reports, the Sanchez burden can become almost impossible. With police reports, it usually comes down to one issue: witness statements. If the witness can be tracked down, then there is no issue. But what about when the witness is gone and cannot be found? Prior to Sanchez, an accident reconstructionist could use witness statements contained in the police report as a basis for their opinion. Therefore the witness statements could become admissible, not to prove the truth of the matter, but to show the basis for the expert opinion. Again, that is no longer the case. The reality of the matter is that litigators will have to invest significantly more time and money in order to find witnesses since their statements will now be otherwise inadmissible. Of course it is always best practice to have the witness testify in person, but that is not always possible. Prior to Sanchez the jury was at least still able to hear the witness statement, even if just through an expert.

The impossible burden: Prior similar occurrences

Where the Sanchez decision really hurts civil Plaintiffs’ attorneys is in regard to cases which involve, or necessitate, the showing of prior similar occurrences. While the above mentioned hypotheticals will affect defense attorneys as well, those same defense attorneys are ecstatic to see the Sanchez decision as it nearly destroys a Plaintiff’s ability to show prior similar occurrences.

Prior similar occurrences can commonly be some of the most important pieces of evidence a Plaintiff has in showing liability. Whether it is a case involving a dangerous animal who has a history of attacks, an employment discrimination case in which other employees were discriminated against as well, or a case involving a dangerous condition of property in which there have been other incidents, showing the existence of, and defendant’s knowledge of, prior similar incidents can often be the nail in the coffin, so to speak. If you have the evidence, it destroys a defendant’s ability to say “well, it never happened before.” In some cases, such as imposing liability onto a business for failure to prevent third party conduct, prior similar incidents are essentially an element of duty. Without being able to show prior incidents, a duty won’t even exist. So where does that leave Plaintiffs’ attorneys in the wake of Sanchez?

Statements contained in police reports, incident reports, or basically any written report will be considered hearsay even if portions of the report are admissible through a business records exception. Obtaining the reports themselves can be a challenge all in itself. Assuming you are able to obtain the reports, they can commonly be redacted so that the names of the complainants or witnesses are not obtainable. In context of an employment case, there may be several reports in which past or present employees reported misconduct. In a dangerous condition of property case, there may be several reports, police or otherwise, in which other individuals reported the exact same dangerous condition which is at issue in your case. So assuming you have the reports, what do you do with them now?

Prior to Sanchez, a proper expert could review the reports and base their opinions on the hearsay contained within them. A proper limiting instruction could be given and the jury would be able to evaluate the evidence. Now, Plaintiffs’ attorneys will be forced to depose each and every person who made a statement contained in a report in order to make the statement admissible. If the reports are redacted, you will first have to obtain some sort of protective order just to identify who you need to depose. The practical application of this idea is outrageous. Just contemplating the investment required to hunt down individuals who made statements years in the past is daunting, if not impossible.

What do we do now?

The Supreme Court’s ruling in Sanchez has changed decades of law in that any case-specific facts relied on by an expert are now ruled to go to the truth of the matter asserted, making them hearsay. In practical terms, this means that all hearsay statements and opinions must either be subject to a hearsay exception, or admitted through an appropriate witness. Hearsay statements can no longer be admitted as the basis for an expert opinion.

As litigators, all we can do is move forward using the laws that exist. As far as this issue goes, that means making sure you are aware of what evidence is hearsay, how many levels of hearsay exist, what portions of that evidence are subject to hearsay exceptions, and what steps you will need to take in order to overcome the enormous burden imposed by Sanchez. It also means that these issues will need to be addressed on the front end of case analysis since obtaining admissible evidence will take additional time and investment. There will be significant hurdles to overcome in obtaining evidence necessary to prosecute cases and no longer will we be able to fall back on having hearsay evidence admitted for the purpose of explaining the basis of expert opinion.

Endnote

1 People v. Bell, (2007) 40 Cal.4th 582; People v. Montiel, (1993) 5 Cal.4th 877; People v. Ainsworth, (1988) 45 Cal.3d 984; People v. Milner, (1988) 45 Cal.3d 227; People v. Coleman, (1985) 38 Cal.3d 69; People v. Gardeley, (1996)
14 Cal.4th 605; all specifically disapproved of.

2 Cal. Evidence Code § 1270-1272; § 1220-1227; § 1235, § 1236; § 1241, § 1230, § 1250, § 1237. 

 

 

 


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Rules of AdmissibilityEvidence Admissibility

Confrontation ClauseSixth Amendment

Exceptions To The Hearsay RuleConfronting Evidence


 

 

Rule 803. Exceptions to the Rule Against Hearsay

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The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

(4) Statement Made for Medical Diagnosis or Treatment. A statement that:

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

(5) Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) neither the opponent does not show that the possible source of the information nor or other circumstances indicate a lack of trustworthiness.

(8) Public Records. A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the opponent does not show that the source of information nor or other circumstances indicate a lack of trustworthiness.

(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

(10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if:

(A) the testimony or certification is admitted to prove that

(i) the record or statement does not exist; or

(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.

(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:

(A) made by a person who is authorized by a religious organization or by law to perform the act certified;

(B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and

(C) purporting to have been issued at the time of the act or within a reasonable time after it.

(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:

(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;

(B) the record is kept in a public office; and

(C) a statute authorizes recording documents of that kind in that office.

(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose — unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.

(16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.

(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

(19) Reputation Concerning Personal or Family History. A reputation among a person’s family by blood, adoption, or marriage — or among a person’s associates or in the community — concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

(20) Reputation Concerning Boundaries or General History. A reputation in a community — arising before the controversy — concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.

(21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.

(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:

(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;

(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;

(C) the evidence is admitted to prove any fact essential to the judgment; and

(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.

The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:

(A) was essential to the judgment; and

(B) could be proved by evidence of reputation.

(24) [Other Exceptions .] [Transferred to Rule 807.]

Notes

(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1939; Pub. L. 94–149, §1(11), Dec. 12, 1975, 89 Stat. 805; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 16, 2013, eff. Dec. 1, 2013; Apr. 25, 2014, eff. Dec. 1, 2014.)

Notes of Advisory Committee on Proposed Rules

The exceptions are phrased in terms of nonapplication of the hearsay rule, rather than in positive terms of admissibility, in order to repel any implication that other possible grounds for exclusion are eliminated from consideration.

The present rule proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available. The theory finds vast support in the many exceptions to the hearsay rule developed by the common law in which unavailability of the declarant is not a relevant factor. The present rule is a synthesis of them, with revision where modern developments and conditions are believed to make that course appropriate.

In a hearsay situation, the declarant is, of course, a witness, and neither this rule nor Rule 804 dispenses with the requirement of firsthand knowledge. It may appear from his statement or be inferable from circumstances.

See Rule 602.

Exceptions (1) and (2). In considerable measure these two examples overlap, though based on somewhat different theories. The most significant practical difference will lie in the time lapse allowable between event and statement.

The underlying theory of Exception [paragraph] (1) is that substantial contemporaneity of event and statement negative the likelihood of deliberate of conscious misrepresentation. Moreover, if the witness is the declarant, he may be examined on the statement. If the witness is not the declarant, he may be examined as to the circumstances as an aid in evaluating the statement. Morgan, Basic Problems of Evidence 340–341 (1962).

The theory of Exception [paragraph] (2) is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. 6 Wigmore §1747, p. 135. Spontaneity is the key factor in each instance, though arrived at by somewhat different routes. Both are needed in order to avoid needless niggling.

While the theory of Exception [paragraph] (2) has been criticized on the ground that excitement impairs accuracy of observation as well as eliminating conscious fabrication, Hutchins and Slesinger, Some Observations on the Law of Evidence: Spontaneous Exclamations, 28 Colum.L.Rev. 432 (1928), it finds support in cases without number. See cases in 6 Wigmore §1750; Annot., 53 A.L.R.2d 1245 (statements as to cause of or responsibility for motor vehicle accident); Annot., 4 A.L.R.3d 149 (accusatory statements by homicide victims). Since unexciting events are less likely to evoke comment, decisions involving Exception [paragraph] (1) are far less numerous. Illustrative are Tampa Elec. Co. v. Getrost, 151 Fla. 558, 10 So.2d 83 (1942); Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474 (1942); and cases cited in McCormick §273, p. 585, n. 4.

With respect to the time element, Exception [paragraph] (1) recognizes that in many, if not most, instances precise contemporaneity is not possible, and hence a slight lapse is allowable. Under Exception [paragraph] (2) the standard of measurement is the duration of the state of excitement. “How long can excitement prevail? Obviously there are no pat answers and the character of the transaction or event will largely determine the significance of the time factor.” Slough, Spontaneous Statements and State of Mind, 46 Iowa L.Rev. 224, 243 (1961); McCormick §272, p. 580.

Participation by the declarant is not required: a nonparticipant may be moved to describe what he perceives, and one may be startled by an event in which he is not an actor. Slough, supra; McCormick, supra; 6 Wigmore §1755; Annot., 78 A.L.R.2d 300.

Whether proof of the startling event may be made by the statement itself is largely an academic question, since in most cases there is present at least circumstantial evidence that something of a startling nature must have occurred. For cases in which the evidence consists of the condition of the declarant (injuries, state of shock), see Insurance Co. v. Mosely, 75 U.S. (8 Wall.), 397, 19 L.Ed. 437 (1869); Wheeler v. United States, 93 U.S.A.App. D.C. 159, 211 F.2d 19 (1953); cert. denied 347 U.S. 1019, 74 S.Ct. 876, 98 L.Ed. 1140; Wetherbee v. Safety Casualty Co., 219 F.2d 274 (5th Cir. 1955); Lampe v. United States, 97 U.S.App.D.C. 160, 229 F.2d 43 (1956). Nevertheless, on occasion the only evidence may be the content of the statement itself, and rulings that it may be sufficient are described as “increasing,” Slough, supra at 246, and as the “prevailing practice,” McCormick §272, p. 579. Illustrative are Armour & Co. v. Industrial Commission, 78 Colo. 569, 243 P. 546 (1926); Young v. Stewart, 191 N.C. 297, 131 S.E. 735 (1926). Moreover, under Rule 104(a) the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.

Proof of declarant’s perception by his statement presents similar considerations when declarant is identified. People v. Poland, 22 Ill.2d 175, 174 N.E.2d 804 (1961). However, when declarant is an unidentified bystander, the cases indicate hesitancy in upholding the statement alone as sufficient, Garrett v. Howden, 73 N.M. 307, 387 P.2d 874 (1963); Beck v. Dye, 200 Wash. 1, 92 P.2d 1113 (1939), a result which would under appropriate circumstances be consistent with the rule.

Permissible subject matter of the statement is limited under Exception [paragraph] (1) to description or explanation of the event or condition, the assumption being that spontaneity, in the absence of a startling event, may extend no farther. In Exception [paragraph] (2), however, the statement need only “relate” to the startling event or condition, thus affording a broader scope of subject matter coverage. 6 Wigmore §§1750, 1754. See Sanitary Grocery Co. v. Snead, 67 App.D.C. 129, 90 F.2d 374 (1937), slip-and-fall case sustaining admissibility of clerk’s statement, “That has been on the floor for a couple of hours,” and Murphy Auto Parts Co., Inc. v. Ball, 101 U.S.App.D.C. 416, 249 F.2d 508 (1957), upholding admission, on issue of driver’s agency, of his statement that he had to call on a customer and was in a hurry to get home. Quick, Hearsay, Excitement, Necessity and the Uniform Rules: A Reappraisal of Rule 63(4), 6 Wayne L.Rev. 204, 206–209 (1960).

Similar provisions are found in Uniform Rule 63(4)(a) and (b); California Evidence Code §1240 (as to Exception (2) only); Kansas Code of Civil Procedure §60–460(d)(1) and (2); New Jersey Evidence Rule 63(4).

Exception (3) is essentially a specialized application of Exception [paragraph] (1), presented separately to enhance its usefulness and accessibility. See McCormick §§265, 268.

The exclusion of “statements of memory or belief to prove the fact remembered or believed” is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind). Shepard v. United States290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933); Maguire, The Hillmon Case—Thirty-three Years After, 38 Harv.L.Rev. 709, 719–731 (1925); Hinton, States of Mind and the Hearsay Rule, 1 U.Chi.L.Rev. 394, 421–423 (1934). The rule of Mutual Life Ins. Co. v. Hillman145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892), allowing evidence of intention as tending to prove the doing of the act intended, is of course, left undisturbed.

The carving out, from the exclusion mentioned in the preceding paragraph, of declarations relating to the execution, revocation, identification, or terms of declarant’s will represents an ad hoc judgment which finds ample reinforcement in the decisions, resting on practical grounds of necessity and expediency rather than logic. McCormick §271, pp. 577–578; Annot., 34 A.L.R.2d 588, 62 A.L.R.2d 855. A similar recognition of the need for and practical value of this kind of evidence is found in California Evidence Code §1260.

Exception (4). Even those few jurisdictions which have shied away from generally admitting statements of present condition have allowed them if made to a physician for purposes of diagnosis and treatment in view of the patient’s strong motivation to be truthful. McCormick §266, p. 563. The same guarantee of trustworthiness extends to statements of past conditions and medical history, made for purposes of diagnosis or treatment. It also extends to statements as to causation, reasonably pertinent to the same purposes, in accord with the current trend, Shell Oil Co. v. Industrial Commission, 2 Ill.2d 590, 119 N.E.2d 224 (1954); McCormick §266, p. 564; New Jersey Evidence Rule 63(12)(c). Statements as to fault would not ordinarily qualify under this latter language. Thus a patient’s statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light. Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included.

Conventional doctrine has excluded from the hearsay exception, as not within its guarantee of truthfulness, statements to a physician consulted only for the purpose of enabling him to testify. While these statements were not admissible as substantive evidence, the expert was allowed to state the basis of his opinion, including statements of this kind. The distinction thus called for was one most unlikely to be made by juries. The rule accordingly rejects the limitation. This position is consistent with the provision of Rule 703 that the facts on which expert testimony is based need not be admissible in evidence if of a kind ordinarily relied upon by experts in the field.

Exception (5). A hearsay exception for recorded recollection is generally recognized and has been described as having “long been favored by the federal and practically all the state courts that have had occasion to decide the question.” United States v. Kelly349 F.2d 720, 770 (2d Cir. 1965), citing numerous cases and sustaining the exception against a claimed denial of the right of confrontation. Many additional cases are cited in Annot., 82 A.L.R.2d 473, 520. The guarantee of trustworthiness is found in the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them. Owens v. State, 67 Md. 307, 316, 10 A. 210, 212 (1887).

The principal controversy attending the exception has centered, not upon the propriety of the exception itself, but upon the question whether a preliminary requirement of impaired memory on the part of the witness should be imposed. The authorities are divided. If regard be had only to the accuracy of the evidence, admittedly impairment of the memory of the witness adds nothing to it and should not be required. McCormick §277, p. 593; 3 Wigmore §738, p. 76; Jordan v. People, 151 Colo. 133, 376 P.2d 699 (1962), cert. denied 373 U.S. 944, 83 S.Ct. 1553, 10 L.Ed.2d 699; Hall v. State, 223 Md. 158, 162 A.2d 751 (1960); State v. Bindhammer, 44 N.J. 372, 209 A.2d 124 (1965). Nevertheless, the absence of the requirement, it is believed, would encourage the use of statements carefully prepared for purposes of litigation under the supervision of attorneys, investigators, or claim adjusters. Hence the example includes a requirement that the witness not have “sufficient recollection to enable him to testify fully and accurately.” To the same effect are California Evidence Code §1237 and New Jersey Rule 63(1)(b), and this has been the position of the federal courts. Vicksburg & Meridian R.R. v. O’Brien119 U.S. 99, 7 S.Ct. 118, 30 L.Ed. 299 (1886); Ahern v. Webb268 F.2d 45 (10th Cir. 1959); and see N.L.R.B. v. Hudson Pulp and Paper Corp., 273 F.2d 660, 665 (5th Cir. 1960); N.L.R.B. v. Federal Dairy Co., 297 F.2d 487 (1st Cir. 1962). But cf. United States v. Adams385 F.2d 548 (2d Cir. 1967).

No attempt is made in the exception to spell out the method of establishing the initial knowledge or the contemporaneity and accuracy of the record, leaving them to be dealt with as the circumstances of the particular case might indicate. Multiple person involvement in the process of observing and recording, as in Rathbun v. Brancatella, 93 N.J.L. 222, 107 A. 279 (1919), is entirely consistent with the exception.

Locating the exception at this place in the scheme of the rules is a matter of choice. There were two other possibilities. The first was to regard the statement as one of the group of prior statements of a testifying witness which are excluded entirely from the category of hearsay by Rule 801(d)(1). That category, however, requires that declarant be “subject to cross-examination,” as to which the impaired memory aspect of the exception raises doubts. The other possibility was to include the exception among those covered by Rule 804. Since unavailability is required by that rule and lack of memory is listed as a species of unavailability by the definition of the term in Rule 804(a)(3), that treatment at first impression would seem appropriate. The fact is, however, that the unavailability requirement of the exception is of a limited and peculiar nature. Accordingly, the exception is located at this point rather than in the context of a rule where unavailability is conceived of more broadly.

Exception (6) represents an area which has received much attention from those seeking to improve the law of evidence. The Commonwealth Fund Act was the result of a study completed in 1927 by a distinguished committee under the chairmanship of Professor Morgan. Morgan et al., The Law of Evidence: Some Proposals for its Reform 63 (1927). With changes too minor to mention, it was adopted by Congress in 1936 as the rule for federal courts. 28 U.S.C. §1732. A number of states took similar action. The Commissioners on Uniform State Laws in 1936 promulgated the Uniform Business Records as Evidence Act, 9A U.L.A. 506, which has acquired a substantial following in the states. Model Code Rule 514 and Uniform Rule 63(13) also deal with the subject. Difference of varying degrees of importance exist among these various treatments.

These reform efforts were largely within the context of business and commercial records, as the kind usually encountered, and concentrated considerable attention upon relaxing the requirement of producing as witnesses, or accounting for the nonproduction of, all participants in the process of gathering, transmitting, and recording information which the common law had evolved as a burdensome and crippling aspect of using records of this type. In their areas of primary emphasis on witnesses to be called and the general admissibility of ordinary business and commercial records, the Commonwealth Fund Act and the Uniform Act appear to have worked well. The exception seeks to preserve their advantages.

On the subject of what witnesses must be called, the Commonwealth Fund Act eliminated the common law requirement of calling or accounting for all participants by failing to mention it. United States v. Mortimer, 118 F.2d 266 (2d Cir. 1941); La Porte v. United States300 F.2d 878 (9th Cir. 1962); McCormick §290, p. 608. Model Code Rule 514 and Uniform Rule 63(13) did likewise. The Uniform Act, however, abolished the common law requirement in express terms, providing that the requisite foundation testimony might be furnished by “the custodian or other qualified witness.” Uniform Business Records as Evidence Act, §2; 9A U.L.A. 506. The exception follows the Uniform Act in this respect.

The element of unusual reliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation. McCormick §§281, 286, 287; Laughlin, Business Entries and the Like, 46 Iowa L.Rev. 276 (1961). The model statutes and rules have sought to capture these factors and to extend their impact by employing the phrase “regular course of business,” in conjunction with a definition of “business” far broader than its ordinarily accepted meaning. The result is a tendency unduly to emphasize a requirement of routineness and repetitiveness and an insistence that other types of records be squeezed into the fact patterns which give rise to traditional business records. The rule therefore adopts the phrase “the course of a regularly conducted activity” as capturing the essential basis of the hearsay exception as it has evolved and the essential element which can be abstracted from the various specifications of what is a “business.”

Amplification of the kinds of activities producing admissible records has given rise to problems which conventional business records by their nature avoid. They are problems of the source of the recorded information, of entries in opinion form, of motivation, and of involvement as participant in the matters recorded.

Sources of information presented no substantial problem with ordinary business records. All participants, including the observer or participant furnishing the information to be recorded, were acting routinely, under a duty of accuracy, with employer reliance on the result, or in short “in the regular course of business.” If, however, the supplier of the information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail. An illustration is the police report incorporating information obtained from a bystander: the officer qualifies as acting in the regular course but the informant does not. The leading case, Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), held that a report thus prepared was inadmissible. Most of the authorities have agreed with the decision. Gencarella v. Fyfe, 171 F.2d 419 (1st Cir. 1948); Gordon v. Robinson210 F.2d 192 (3d Cir. 1954); Standard Oil Co. of California v. Moore251 F.2d 188, 214 (9th Cir. 1957), cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148; Yates v. Bair Transport, Inc., 249 F.Supp. 681 (S.D.N.Y. 1965); Annot., 69 A.L.R.2d 1148. Cf. Hawkins v. Gorea Motor Express, Inc., 360 F.2d 933 (2d Cir 1966). Contra, 5 Wigmore §1530a, n. 1, pp. 391–392. The point is not dealt with specifically in the Commonwealth Fund Act, the Uniform Act, or Uniform Rule 63(13). However, Model Code Rule 514 contains the requirement “that it was the regular course of that business for one with personal knowledge * * * to make such a memorandum or record or to transmit information thereof to be included in such a memorandum or record * * *.” The rule follows this lead in requiring an informant with knowledge acting in the course of the regularly conducted activity.

Entries in the form of opinions were not encountered in traditional business records in view of the purely factual nature of the items recorded, but they are now commonly encountered with respect to medical diagnoses, prognoses, and test results, as well as occasionally in other areas. The Commonwealth Fund Act provided only for records of an “act, transaction, occurrence, or event,” while the Uniform Act, Model Code Rule 514, and Uniform Rule 63(13) merely added the ambiguous term “condition.” The limited phrasing of the Commonwealth Fund Act, 28 U.S.C. §1732, may account for the reluctance of some federal decisions to admit diagnostic entries. New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297 (1945); Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957), cert. denied 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067; England v. United States, 174 F.2d 466 (5th Cir. 1949); Skogen v. Dow Chemical Co., 375 F.2d 692 (8th Cir. 1967). Other federal decisions, however, experienced no difficulty in freely admitting diagnostic entries. Reed v. Order of United Commercial Travelers, 123 F.2d 252 (2d Cir. 1941); Buckminster’s Estate v. Commissioner of Internal Revenue, 147 F.2d 331 (2d Cir. 1944); Medina v. Erickson226 F.2d 475 (9th Cir. 1955); Thomas v. Hogan308 F.2d 355 (4th Cir. 1962); Glawe v. Rulon284 F.2d 495 (8th Cir. 1960). In the state courts, the trend favors admissibility. Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938); Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 55 A.L.R.2d 1022 (1956); People v. Kohlmeyer, 284 N.Y. 366, 31 N.E.2d 490 (1940); Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245 (1947). In order to make clear its adherence to the latter position, the rule specifically includes both diagnoses and opinions, in addition to acts, events, and conditions, as proper subjects of admissible entries.

Problems of the motivation of the informant have been a source of difficulty and disagreement. In Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), exclusion of an accident report made by the since deceased engineer, offered by defendant railroad trustees in a grade crossing collision case, was upheld. The report was not “in the regular course of business,” not a record of the systematic conduct of the business as a business, said the Court. The report was prepared for use in litigating, not railroading. While the opinion mentions the motivation of the engineer only obliquely, the emphasis on records of routine operations is significant only by virtue of impact on motivation to be accurate. Absence of routineness raises lack of motivation to be accurate. The opinion of the Court of Appeals had gone beyond mere lack of motive to be accurate: the engineer’s statement was “dripping with motivations to misrepresent.” Hoffman v. Palmer, 129 F.2d 976, 991 (2d Cir. 1942). The direct introduction of motivation is a disturbing factor, since absence of motivation to misrepresent has not traditionally been a requirement of the rule; that records might be self-serving has not been a ground for exclusion. Laughlin, Business Records and the Like, 46 Iowa L.Rev. 276, 285 (1961). As Judge Clark said in his dissent, “I submit that there is hardly a grocer’s account book which could not be excluded on that basis.” 129 F.2d at 1002. A physician’s evaluation report of a personal injury litigant would appear to be in the routine of his business. If the report is offered by the party at whose instance it was made, however, it has been held inadmissible, Yates v. Bair Transport, Inc., 249 F.Supp. 681 (S.D.N.Y. 1965), otherwise if offered by the opposite party, Korte v. New York, N.H. & H.R. Co., 191 F.2d 86 (2d Cir. 1951), cert. denied 342 U.S. 868, 72 S.Ct. 108, 96 L.Ed. 652.

The decisions hinge on motivation and which party is entitled to be concerned about it. Professor McCormick believed that the doctor’s report or the accident report were sufficiently routine to justify admissibility. McCormick §287, p. 604. Yet hesitation must be experienced in admitting everything which is observed and recorded in the course of a regularly conducted activity. Efforts to set a limit are illustrated by Hartzog v. United States217 F.2d 706 (4th Cir. 1954), error to admit worksheets made by since deceased deputy collector in preparation for the instant income tax evasion prosecution, and United States v. Ware247 F.2d 698 (7th Cir. 1957), error to admit narcotics agents’ records of purchases. See also Exception [paragraph] (8), infra, as to the public record aspects of records of this nature. Some decisions have been satisfied as to motivation of an accident report if made pursuant to statutory duty, United States v. New York Foreign Trade Zone Operators304 F.2d 792 (2d Cir. 1962); Taylor v. Baltimore & O. R. Co., 344 F.2d 281 (2d Cir. 1965), since the report was oriented in a direction other than the litigation which ensued. Cf. Matthews v. United States217 F.2d 409 (5th Cir. 1954). The formulation of specific terms which would assure satisfactory results in all cases is not possible. Consequently the rule proceeds from the base that records made in the course of a regularly conducted activity will be taken as admissible but subject to authority to exclude if “the sources of information or other circumstances indicate lack of trustworthiness.”

Occasional decisions have reached for enhanced accuracy by requiring involvement as a participant in matters reported. Clainos v. United States, 82 U.S.App.D.C. 278, 163 F.2d 593 (1947), error to admit police records of convictions; Standard Oil Co. of California v. Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148, error to admit employees’ records of observed business practices of others. The rule includes no requirement of this nature. Wholly acceptable records may involve matters merely observed, e.g. the weather.

The form which the “record” may assume under the rule is described broadly as a “memorandum, report, record, or data compilation, in any form.” The expression “data compilation” is used as broadly descriptive of any means of storing information other than the conventional words and figures in written or documentary form. It includes, but is by no means limited to, electronic computer storage. The term is borrowed from revised Rule 34(a) of the Rules of Civil Procedure.

Exception (7). Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence. Uniform Rule 63(14), Comment. While probably not hearsay as defined in Rule 801, supra, decisions may be found which class the evidence not only as hearsay but also as not within any exception. In order to set the question at rest in favor of admissibility, it is specifically treated here. McCormick §289, p. 609; Morgan, Basic Problems of Evidence 314 (1962); 5 Wigmore §1531; Uniform Rule 63(14); California Evidence Code §1272; Kansas Code of Civil Procedure §60–460(n); New Jersey Evidence Rule 63(14).

Exception (8). Public records are a recognized hearsay exception at common law and have been the subject of statutes without number. McCormick §291. See, for example, 28 U.S.C. §1733, the relative narrowness of which is illustrated by its nonapplicability to nonfederal public agencies, thus necessitating report to the less appropriate business record exception to the hearsay rule. Kay v. United States255 F.2d 476 (4th Cir. 1958). The rule makes no distinction between federal and nonfederal offices and agencies.

Justification for the exception is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record. Wong Wing Foo v. McGrath196 F.2d 120 (9th Cir. 1952), and see Chesapeake & Delaware Canal Co. v. United States250 U.S. 123, 39 S.Ct. 407, 63 L.Ed. 889 (1919). As to items (a) and (b), further support is found in the reliability factors underlying records of regularly conducted activities generally. See Exception [paragraph] (6), supra.

(a) Cases illustrating the admissibility of records of the office’s or agency’s own activities are numerous. Chesapeake & Delaware Canal Co. v. United States, 250 U.S. 123, 39 S.Ct. 407, 63 L.Ed. 889 (1919), Treasury records of miscellaneous receipts and disbursements; Howard v. Perrin, 200 U.S. 71, 26 S.Ct. 195, 50 I.Ed. 374 (1906), General Land Office records; Ballew v. United States, 160 U.S. 187, 16 S.Ct. 263, 40 L.Ed. 388 (1895), Pension Office records.

(b) Cases sustaining admissibility of records of matters observed are also numerous. United States v. Van Hook, 284 F.2d 489 (7th Cir. 1960), remanded for resentencing 365 U.S. 609, 81 S.Ct. 823, 5 L.Ed.2d 821, letter from induction officer to District Attorney, pursuant to army regulations, stating fact and circumstances of refusal to be inducted; T’Kach v. United States242 F.2d 937 (5th Cir. 1957), affidavit of White House personnel officer that search of records showed no employment of accused, charged with fraudulently representing himself as an envoy of the President; Minnehaha County v. Kelley, 150 F.2d 356 (8th Cir. 1945); Weather Bureau records of rainfall; United States v. Meyer, 113 F.2d 387 (7th Cir. 1940), cert. denied 311 U.S. 706, 61 S.Ct. 174, 85 L.Ed. 459, map prepared by government engineer from information furnished by men working under his supervision.

(c) The more controversial area of public records is that of the so-called “evaluative” report. The disagreement among the decisions has been due in part, no doubt, to the variety of situations encountered, as well as to differences in principle. Sustaining admissibility are such cases as United States v. Dumas149 U.S. 278, 13 S.Ct. 872, 37 L.Ed. 734 (1893), statement of account certified by Postmaster General in action against postmaster; McCarty v. United States185 F.2d 520 (5th Cir. 1950), reh. denied 187 F.2d 234, Certificate of Settlement of General Accounting Office showing indebtedness and letter from Army official stating Government had performed, in action on contract to purchase and remove waste food from Army camp; Moran v. Pittsburgh-Des Moines Steel Co., 183 F.2d 467 (3d Cir. 1950), report of Bureau of Mines as to cause of gas tank explosion; Petition of W—, 164 F.Supp. 659 (E.D.Pa.1958), report by Immigration and Naturalization Service investigator that petitioner was known in community as wife of man to whom she was not married. To the opposite effect and denying admissibility are Franklin v. Skelly Oil Co., 141 F.2d 568 (10th Cir. 1944), State Fire Marshal’s report of cause of gas explosion; Lomax Transp. Co. v. United States183 F.2d 331 (9th Cir. 1950), Certificate of Settlement from General Accounting Office in action for naval supplies lost in warehouse fire; Yung Jin Teung v. Dulles229 F.2d 244 (2d Cir. 1956), “Status Reports” offered to justify delay in processing passport applications. Police reports have generally been excluded except to the extent to which they incorporate firsthand observations of the officer. Annot., 69 A.L.R.2d 1148. Various kinds of evaluative reports are admissible under federal statutes: 7 U.S.C. §78, findings of Secretary of Agriculture prima facie evidence of true grade of grain; 7 U.S.C. §210(f), findings of Secretary of Agriculture prima facie evidence in action for damages against stockyard owner; 7 U.S.C. §292, order by Secretary of Agriculture prima facie evidence in judicial enforcement proceedings against producers association monopoly; 7 U.S.C. §1622(h), Department of Agriculture inspection certificates of products shipped in interstate commerce prima facie evidence; 8 U.S.C. §1440(c), separation of alien from military service on conditions other than honorable provable by certificate from department in proceedings to revoke citizenship; 18 U.S.C. §4245, certificate of Director of Prisons that convicted person has been examined and found probably incompetent at time of trial prima facie evidence in court hearing on competency; 42 U.S.C. §269(b), bill of health by appropriate official prima facie evidence of vessel’s sanitary history and condition and compliance with regulations; 46 U.S.C. §679, certificate of consul presumptive evidence of refusal of master to transport destitute seamen to United States. While these statutory exceptions to the hearsay rule are left undisturbed, Rule 802, the willingness of Congress to recognize a substantial measure of admissibility for evaluative reports is a helpful guide.

Factors which may be of assistance in passing upon the admissibility of evaluative reports include; (1) the timeliness of the investigation, McCormack, Can the Courts Make Wider Use of Reports of Official Investigations? 42 Iowa L.Rev. 363 (1957); (2) the special skill or experience of the official, id., (3) whether a hearing was held and the level at which conducted, Franklin v. Skelly Oil Co., 141 F.2d 568 (10th Cir. 1944); (4) possible motivation problems suggested by Palmer v. Hoffman318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Others no doubt could be added.

The formulation of an approach which would give appropriate weight to all possible factors in every situation is an obvious impossibility. Hence the rule, as in Exception [paragraph] (6), assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present. In one respect, however, the rule with respect to evaluate reports under item (c) is very specific; they are admissible only in civil cases and against the government in criminal cases in view of the almost certain collision with confrontation rights which would result from their use against the accused in a criminal case.

Exception (9). Records of vital statistics are commonly the subject of particular statutes making them admissible in evidence. Uniform Vital Statistics Act, 9C U.L.A. 350 (1957). The rule is in principle narrower than Uniform Rule 63(16) which includes reports required of persons performing functions authorized by statute, yet in practical effect the two are substantially the same. Comment Uniform Rule 63(16). The exception as drafted is in the pattern of California Evidence Code §1281.

Exception (10). The principle of proving nonoccurrence of an event by evidence of the absence of a record which would regularly be made of its occurrence, developed in Exception [paragraph] (7) with respect to regularly conducted activities, is here extended to public records of the kind mentioned in Exceptions [paragraphs] (8) and (9). 5 Wigmore §1633(6), p. 519. Some harmless duplication no doubt exists with Exception [paragraph] (7). For instances of federal statutes recognizing this method of proof, see 8 U.S.C. §1284(b), proof of absence of alien crewman’s name from outgoing manifest prima facie evidence of failure to detain or deport, and 42 U.S.C. §405(c)(3), (4)(B), (4)(C), absence of HEW [Department of Health, Education, and Welfare] record prima facie evidence of no wages or self-employment income.

The rule includes situations in which absence of a record may itself be the ultimate focal point of inquiry, e.g. People v. Love, 310 Ill. 558, 142 N.E. 204 (1923), certificate of Secretary of State admitted to show failure to file documents required by Securities Law, as well as cases where the absence of a record is offered as proof of the nonoccurrence of an event ordinarily recorded.

The refusal of the common law to allow proof by certificate of the lack of a record or entry has no apparent justification, 5 Wigmore §1678(7), p. 752. The rule takes the opposite position, as do Uniform Rule 63(17); California Evidence Code §1284; Kansas Code of Civil Procedure §60–460(c); New Jersey Evidence Rule 63(17). Congress has recognized certification as evidence of the lack of a record. 8 U.S.C. §1360(d), certificate of Attorney General or other designated officer that no record of Immigration and Naturalization Service of specified nature or entry therein is found, admissible in alien cases.

Exception (11). Records of activities of religious organizations are currently recognized as admissible at least to the extent of the business records exception to the hearsay rule, 5 Wigmore §1523, p. 371, and Exception [paragraph] (6) would be applicable. However, both the business record doctrine and Exception [paragraph] (6) require that the person furnishing the information be one in the business or activity. The result is such decisions as Daily v. Grand Lodge, 311 Ill. 184, 142 N.E. 478 (1924), holding a church record admissible to prove fact, date, and place of baptism, but not age of child except that he had at least been born at the time. In view of the unlikelihood that false information would be furnished on occasions of this kind, the rule contains no requirement that the informant be in the course of the activity. See California Evidence Code §1315 and Comment.

Exception (12). The principle of proof by certification is recognized as to public officials in Exceptions [paragraphs] (8) and (10), and with respect to authentication in Rule 902. The present exception is a duplication to the extent that it deals with a certificate by a public official, as in the case of a judge who performs a marriage ceremony. The area covered by the rule is, however, substantially larger and extends the certification procedure to clergymen and the like who perform marriages and other ceremonies or administer sacraments. Thus certificates of such matters as baptism or confirmation, as well as marriage, are included. In principle they are as acceptable evidence as certificates of public officers. See 5 Wigmore §1645, as to marriage certificates. When the person executing the certificate is not a public official, the self-authenticating character of documents purporting to emanate from public officials, see Rule 902, is lacking and proof is required that the person was authorized and did make the certificate. The time element, however, may safely be taken as supplied by the certificate, once authority and authenticity are established, particularly in view of the presumption that a document was executed on the date it bears.

For similar rules, some limited to certificates of marriage, with variations in foundation requirements, see Uniform Rule 63(18); California Evidence Code §1316; Kansas Code of Civil Procedure §60–460(p); New Jersey Evidence Rule 63(18).

Exception (13). Records of family history kept in family Bibles have by long tradition been received in evidence. 5 Wigmore §§1495, 1496, citing numerous statutes and decisions. See also Regulations, Social Security Administration, 20 C.F.R. §404.703(c), recognizing family Bible entries as proof of age in the absence of public or church records. Opinions in the area also include inscriptions on tombstones, publicly displayed pedigrees, and engravings on rings. Wigmore, supra. The rule is substantially identical in coverage with California Evidence Code §1312.

Exception (14). The recording of title documents is a purely statutory development. Under any theory of the admissibility of public records, the records would be receivable as evidence of the contents of the recorded document, else the recording process would be reduced to a nullity. When, however, the record is offered for the further purpose of proving execution and delivery, a problem of lack of first-hand knowledge by the recorder, not present as to contents, is presented. This problem is solved, seemingly in all jurisdictions, by qualifying for recording only those documents shown by a specified procedure, either acknowledgement or a form of probate, to have been executed and delivered. 5 Wigmore §§1647–1651. Thus what may appear in the rule, at first glance, as endowing the record with an effect independently of local law and inviting difficulties of an Erie nature under Cities Service Oil Co. v. Dunlap308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196 (1939), is not present, since the local law in fact governs under the example.

Exception (15). Dispositive documents often contain recitals of fact. Thus a deed purporting to have been executed by an attorney in fact may recite the existence of the power of attorney, or a deed may recite that the grantors are all the heirs of the last record owner. Under the rule, these recitals are exempted from the hearsay rule. The circumstances under which dispositive documents are executed and the requirement that the recital be germane to the purpose of the document are believed to be adequate guarantees of trustworthiness, particularly in view of the nonapplicability of the rule if dealings with the property have been inconsistent with the document. The age of the document is of no significance, though in practical application the document will most often be an ancient one. See Uniform Rule 63(29), Comment.

Similar provisions are contained in Uniform Rule 63(29); California Evidence Code §1330; Kansas Code of Civil Procedure §60–460(aa); New Jersey Evidence Rule 63(29).

Exception (16). Authenticating a document as ancient, essentially in the pattern of the common law, as provided in Rule 901(b)(8), leaves open as a separate question the admissibility of assertive statements contained therein as against a hearsay objection. 7 Wigmore §2145a. Wigmore further states that the ancient document technique of authentication is universally conceded to apply to all sorts of documents, including letters, records, contracts, maps, and certificates, in addition to title documents, citing numerous decisions. Id. §2145. Since most of these items are significant evidentially only insofar as they are assertive, their admission in evidence must be as a hearsay exception. But see 5 id. §1573, p. 429, referring to recitals in ancient deeds as a “limited” hearsay exception. The former position is believed to be the correct one in reason and authority. As pointed out in McCormick §298, danger of mistake is minimized by authentication requirements, and age affords assurance that the writing antedates the present controversy. See Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961), upholding admissibility of 58-year-old newspaper story. Cf. Morgan, Basic Problems of Evidence 364 (1962), but see id. 254.

For a similar provision, but with the added requirement that “the statement has since generally been acted upon as true by persons having an interest in the matter,” see California Evidence Code §1331.

Exception (17). Ample authority at common law supported the admission in evidence of items falling in this category. While Wigmore’s text is narrowly oriented to lists, etc., prepared for the use of a trade or profession, 6 Wigmore §1702, authorities are cited which include other kinds of publications, for example, newspaper market reports, telephone directories, and city directories. Id. §§1702–1706. The basis of trustworthiness is general reliance by the public or by a particular segment of it, and the motivation of the compiler to foster reliance by being accurate.

For similar provisions, see Uniform Rule 63(30); California Evidence Code §1340; Kansas Code of Civil Procedure §60–460(bb); New Jersey Evidence Rule 63(30). Uniform Commercial Code §2–724 provides for admissibility in evidence of “reports in official publications or trade journals or in newspapers or periodicals of general circulation published as the reports of such [established commodity] market.”

Exception (18). The writers have generally favored the admissibility of learned treatises, McCormick §296, p. 621; Morgan, Basic Problems of Evidence 366 (1962); 6 Wigmore §1692, with the support of occasional decisions and rules, City of Dothan v. Hardy237 Ala. 603, 188 So. 264 (1939); Lewandowski v. Preferred Risk Mut. Ins. Co., 33 Wis.2d 69, 146 N.W.2d 505 (1966), 66 Mich.L.Rev. 183 (1967); Uniform Rule 63(31); Kansas Code of Civil Procedure §60–460(ce), but the great weight of authority has been that learned treatises are not admissible as substantive evidence though usable in the cross-examination of experts. The foundation of the minority view is that the hearsay objection must be regarded as unimpressive when directed against treatises since a high standard of accuracy is engendered by various factors: the treatise is written primarily and impartially for professionals, subject to scrutiny and exposure for inaccuracy, with the reputation of the writer at stake. 6 Wigmore §1692. Sound as this position may be with respect to trustworthiness, there is, nevertheless, an additional difficulty in the likelihood that the treatise will be misunderstood and misapplied without expert assistance and supervision. This difficulty is recognized in the cases demonstrating unwillingness to sustain findings relative to disability on the basis of judicially noticed medical texts. Ross v. Gardner365 F.2d 554 (6th Cir. 1966); Sayers v. Gardner380 F.2d 940 (6th Cir. 1967); Colwell v. Gardner386 F.2d 56 (6th Cir. 1967); Glendenning v. Ribicoff, 213 F.Supp. 301 (W.D.Mo. 1962); Cook v. Celebrezze, 217 F.Supp. 366 (W.D.Mo. 1963); Sosna v. Celebrezze, 234 F.Supp. 289 (E.D.Pa. 1964); and see McDaniel v. Celebrezze331 F.2d 426 (4th Cir. 1964). The rule avoids the danger of misunderstanding and misapplication by limiting the use of treatises as substantive evidence to situations in which an expert is on the stand and available to explain and assist in the application of the treatise if declared. The limitation upon receiving the publication itself physically in evidence, contained in the last sentence, is designed to further this policy.

The relevance of the use of treatises on cross-examination is evident. This use of treatises has been the subject of varied views. The most restrictive position is that the witness must have stated expressly on direct his reliance upon the treatise. A slightly more liberal approach still insists upon reliance but allows it to be developed on cross-examination. Further relaxation dispenses with reliance but requires recognition as an authority by the witness, developable on cross-examination. The greatest liberality is found in decisions allowing use of the treatise on cross-examination when its status as an authority is established by any means. Annot., 60 A.L.R.2d 77. The exception is hinged upon this last position, which is that of the Supreme Court, Reilly v. Pinkus338 U.S. 269, 70 S.Ct. 110, 94 L.Ed. 63 (1949), and of recent well considered state court decisions, City of St. Petersburg v. Ferguson, 193 So.2d 648 (Fla.App. 1967), cert. denied Fla., 201 So.2d 556; Darling v. Charleston Memorial Community Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965); Dabroe v. Rhodes Co., 64 Wash.2d 431, 392 P.2d 317 (1964).

In Reilly v. Pinkus, supra, the Court pointed out that testing of professional knowledge was incomplete without exploration of the witness’ knowledge of and attitude toward established treatises in the field. The process works equally well in reverse and furnishes the basis of the rule.

The rule does not require that the witness rely upon or recognize the treatise as authoritative, thus avoiding the possibility that the expert may at the outset block cross-examination by refusing to concede reliance or authoritativeness. Dabroe v. Rhodes Co., supra. Moreover, the rule avoids the unreality of admitting evidence for the purpose of impeachment only, with an instruction to the jury not to consider it otherwise. The parallel to the treatment of prior inconsistent statements will be apparent. See Rules 6130(b) and 801(d)(1).

Exceptions (19), (20), and (21). Trustworthiness in reputation evidence is found “when the topic is such that the facts are likely to have been inquired about and that persons having personal knowledge have disclosed facts which have thus been discussed in the community; and thus the community’s conclusion, if any has been formed, is likely to be a trustworthy one.” 5 Wigmore §1580, p. 444, and see also §1583. On this common foundation, reputation as to land boundaries, customs, general history, character, and marriage have come to be regarded as admissible. The breadth of the underlying principle suggests the formulation of an equally broad exception, but tradition has in fact been much narrower and more particularized, and this is the pattern of these exceptions in the rule.

Exception [paragraph] (19) is concerned with matters of personal and family history. Marriage is universally conceded to be a proper subject of proof by evidence of reputation in the community. 5 Wigmore §1602. As to such items as legitimacy, relationship, adoption, birth, and death, the decisions are divided. Id. §1605. All seem to be susceptible to being the subject of well founded repute. The “world” in which the reputation may exist may be family, associates, or community. This world has proved capable of expanding with changing times from the single uncomplicated neighborhood, in which all activities take place, to the multiple and unrelated worlds of work, religious affiliation, and social activity, in each of which a reputation may be generated. People v. Reeves, 360 Ill. 55, 195 N.E. 443 (1935); State v. Axilrod, 248 Minn. 204, 79 N.W.2d 677 (1956); Mass.Stat. 1947, c. 410, M.G.L.A. c. 233 §21A; 5 Wigmore §1616. The family has often served as the point of beginning for allowing community reputation. 5 Wigmore §1488. For comparable provisions see Uniform Rule 63(26), (27)(c); California Evidence Code §§1313, 1314; Kansas Code of Civil Procedure §60–460(x), (y)(3); New Jersey Evidence Rule 63(26), (27)(c).

The first portion of Exception [paragraph] (20) is based upon the general admissibility of evidence of reputation as to land boundaries and land customs, expanded in this country to include private as well as public boundaries. McCormick §299, p. 625. The reputation is required to antedate the controversy, though not to be ancient. The second portion is likewise supported by authority, id., and is designed to facilitate proof of events when judicial notice is not available The historical character of the subject matter dispenses with any need that the reputation antedate the controversy with respect to which it is offered. For similar provisions see Uniform Rule 63(27)(a), (b); California Evidence Code §§1320–1322; Kansas Code of Civil Procedure §60–460(y), (1), (2); New Jersey Evidence Rule 63(27)(a), (b).

Exception [paragraph] (21) recognizes the traditional acceptance of reputation evidence as a means of proving human character. McCormick §§44, 158. The exception deals only with the hearsay aspect of this kind of evidence. Limitations upon admissibility based on other grounds will be found in Rules 404, relevancy of character evidence generally, and 608, character of witness. The exception is in effect a reiteration, in the context of hearsay, of Rule 405(a). Similar provisions are contained in Uniform Rule 63(28); California Evidence Code §1324; Kansas Code of Civil Procedure §60–460(z); New Jersey Evidence Rule 63(28).

Exception (22). When the status of a former judgment is under consideration in subsequent litigation, three possibilities must be noted: (1) the former judgment is conclusive under the doctrine of res judicata, either as a bar or a collateral estoppel; or (2) it is admissible in evidence for what it is worth; or (3) it may be of no effect at all. The first situation does not involve any problem of evidence except in the way that principles of substantive law generally bear upon the relevancy and materiality of evidence. The rule does not deal with the substantive effect of the judgment as a bar or collateral estoppel. When, however, the doctrine of res judicata does not apply to make the judgment either a bar or a collateral estoppel, a choice is presented between the second and third alternatives. The rule adopts the second for judgments of criminal conviction of felony grade. This is the direction of the decisions, Annot., 18 A.L.R.2d 1287, 1299, which manifest an increasing reluctance to reject in toto the validity of the law’s factfinding processes outside the confines of res judicata and collateral estoppel. While this may leave a jury with the evidence of conviction but without means to evaluate it, as suggested by Judge Hinton, Note 27 Ill.L.Rev. 195 (1932), it seems safe to assume that the jury will give it substantial effect unless defendant offers a satisfactory explanation, a possibility not foreclosed by the provision. But see North River Ins. Co. v. Militello, 104 Colo. 28, 88 P.2d 567 (1939), in which the jury found for plaintiff on a fire policy despite the introduction of his conviction for arson. For supporting federal decisions see Clark, J., in New York & Cuba Mail S.S. Co. v. Continental Cas. Co., 117 F.2d 404, 411 (2d Cir. 1941); Connecticut Fire Ins. Co. v. Farrara277 F.2d 388 (8th Cir. 1960).

Practical considerations require exclusion of convictions of minor offenses, not became the administration of justice in its lower echelons must be inferior, but because motivation to defend at this level is often minimal or nonexistent. Cope v. Goble, 39 Cal.App.2d 448, 103 P.2d 598 (1940); Jones v. Talbot87 Idaho 498, 394 P.2d 316 (1964); Warren v. Marsh, 215 Minn. 615, 11 N.W.2d 528 (1943); Annot., 18 A.L.R.2d 1287, 1295–1297; 16 Brooklyn L.Rev. 286 (1950); 50 Colum.L.Rev. 529 (1950); 35 Cornell L.Q. 872 (1950). Hence the rule includes only convictions of felony grade, measured by federal standards.

Judgments of conviction based upon pleas of nolo contendere are not included. This position is consistent with the treatment of nolo pleas in Rule 410 and the authorities cited in the Advisory Committee’s Note in support thereof.

While these rules do not in general purport to resolve constitutional issues, they have in general been drafted with a view to avoiding collision with constitutional principles. Consequently the exception does not include evidence of the conviction of a third person, offered against the accused in a criminal prosecution to prove any fact essential to sustain the judgment of conviction. A contrary position would seem clearly to violate the right of confrontation. Kirby v. United States174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899), error to convict of possessing stolen postage stamps with the only evidence of theft being the record of conviction of the thieves The situation is to be distinguished from cases in which conviction of another person is an element of the crime, e.g. 15 U.S.C. §902(d), interstate shipment of firearms to a known convicted felon, and, as specifically provided, from impeachment.

For comparable provisions see Uniform Rule 63(20); California Evidence Code §1300; Kansas Code of Civil Procedure §60–460(r); New Jersey Evidence Rule 63(20).

Exception (23). A hearsay exception in this area was originally justified on the ground that verdicts were evidence of reputation. As trial by jury graduated from the category of neighborhood inquests, this theory lost its validity. It was never valid as to chancery decrees. Nevertheless the rule persisted, though the judges and writers shifted ground and began saying that the judgment or decree was as good evidence as reputation. See City of London v. Clerke, Carth. 181, 90 Eng.Rep. 710 (K.B. 1691); Neill v. Duke of Devonshire, 8 App.Cas. 135 (1882). The shift appears to be correct, since the process of inquiry, sifting, and scrutiny which is relied upon to render reputation reliable is present in perhaps greater measure in the process of litigation. While this might suggest a broader area of application, the affinity to reputation is strong, and paragraph [paragraph] (23) goes no further, not even including character.

The leading case in the United States, Patterson v. Gaines, 47 U.S. (6 How.) 550, 599, 12 L.Ed. 553 (1847), follows in the pattern of the English decisions, mentioning as illustrative matters thus provable: manorial rights, public rights of way, immemorial custom, disputed boundary, and pedigree. More recent recognition of the principle is found in Grant Bros. Construction Co. v. United States232 U.S. 647, 34 S.Ct. 452, 58 L.Ed. 776 (1914), in action for penalties under Alien Contract Labor Law, decision of board of inquiry of Immigration Service admissible to prove alienage of laborers, as a matter of pedigree; United States v. Mid-Continent Petroleum Corp., 67 F.2d 37 (10th Cir. 1933), records of commission enrolling Indians admissible on pedigree; Jung Yen Loy v. Cahill, 81 F.2d 809 (9th Cir. 1936), board decisions as to citizenship of plaintiff’s father admissible in proceeding for declaration of citizenship. Contra, In re Estate of Cunha, 49 Haw. 273, 414 P.2d 925 (1966).

Notes of Committee on the Judiciary, House Report No. 93–650

Rule 803(3) was approved in the form submitted by the Court to Congress. However, the Committee intends that the Rule be construed to limit the doctrine of Mutual Life Insurance Co. v. Hillmon145 U.S. 285, 295 –300 (1892), so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person.

After giving particular attention to the question of physical examination made solely to enable a physician to testify, the Committee approved Rule 803(4) as submitted to Congress, with the understanding that it is not intended in any way to adversely affect present privilege rules or those subsequently adopted.

Rule 803(5) as submitted by the Court permitted the reading into evidence of a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify accurately and fully, “shown to have been made when the matter was fresh in his memory and to reflect that knowledge correctly.” The Committee amended this Rule to add the words “or adopted by the witness” after the phrase “shown to have been made”, a treatment consistent with the definition of “statement” in the Jencks Act, 18 U.S.C. 3500. Moreover, it is the Committee’s understanding that a memorandum or report, although barred under this Rule, would nonetheless be admissible if it came within another hearsay exception. This last stated principle is deemed applicable to all the hearsay rules.

Rule 803(6) as submitted by the Court permitted a record made “in the course of a regularly conducted activity” to be admissible in certain circumstances. The Committee believed there were insufficient guarantees of reliability in records made in the course of activities falling outside the scope of “business” activities as that term is broadly defined in 28 U.S.C. 1732. Moreover, the Committee concluded that the additional requirement of Section 1732 that it must have been the regular practice of a business to make the record is a necessary further assurance of its trustworthiness. The Committee accordingly amended the Rule to incorporate these limitations.

Rule 803(7) as submitted by the Court concerned the absence of entry in the records of a “regularly conducted activity.” The Committee amended this Rule to conform with its action with respect to Rule 803(6).

The Committee approved Rule 803(8) without substantive change from the form in which it was submitted by the Court. The Committee intends that the phrase “factual findings” be strictly construed and that evaluations or opinions contained in public reports shall not be admissible under this Rule.

The Committee approved this Rule in the form submitted by the Court, intending that the phrase “Statements of fact concerning personal or family history” be read to include the specific types of such statements enumerated in Rule 803(11).

Notes of Committee on the Judiciary, Senate Report No. 93–1277

The House approved this rule as it was submitted by the Supreme Court “with the understanding that it is not intended in any way to adversely affect present privilege rules.” We also approve this rule, and we would point out with respect to the question of its relation to privileges, it must be read in conjunction with rule 35 of the Federal Rules of Civil Procedure which provides that whenever the physical or mental condition of a party (plaintiff or defendant) is in controversy, the court may require him to submit to an examination by a physician. It is these examinations which will normally be admitted under this exception.

Rule 803(5) as submitted by the Court permitted the reading into evidence of a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify accurately and fully, “shown to have been made when the matter was fresh in his memory and to reflect that knowledge correctly.” The House amended the rule to add the words “or adopted by the witness” after the phrase “shown to have been made,” language parallel to the Jencks Act [ 18 U.S.C. §3500 ].

The committee accepts the House amendment with the understanding and belief that it was not intended to narrow the scope of applicability of the rule. In fact, we understand it to clarify the rule’s applicability to a memorandum adopted by the witness as well as one made by him. While the rule as submitted by the Court was silent on the question of who made the memorandum, we view the House amendment as a helpful clarification, noting, however, that the Advisory Committee’s note to this rule suggests that the important thing is the accuracy of the memorandum rather than who made it.

The committee does not view the House amendment as precluding admissibility in situations in which multiple participants were involved.

When the verifying witness has not prepared the report, but merely examined it and found it accurate, he has adopted the report, and it is therefore admissible. The rule should also be interpreted to cover other situations involving multiple participants, e.g., employer dictating to secretary, secretary making memorandum at direction of employer, or information being passed along a chain of persons, as in Curtis v. Bradley [ 65 Conn. 99, 31 Atl. 591 (1894); see, also Rathbun v. Brancatella, 93 N.J.L. 222, 107 Atl. 279 (1919); see, also McCormick on Evidence, §303 (2d ed. 1972)].

The committee also accepts the understanding of the House that a memorandum or report, although barred under rule, would nonetheless be admissible if it came within another hearsay exception. We consider this principle to be applicable to all the hearsay rules.

Rule 803(6) as submitted by the Supreme Court permitted a record made in the course of a regularly conducted activity to be admissible in certain circumstances. This rule constituted a broadening of the traditional business records hearsay exception which has been long advocated by scholars and judges active in the law of evidence

The House felt there were insufficient guarantees of reliability of records not within a broadly defined business records exception. We disagree. Even under the House definition of “business” including profession, occupation, and “calling of every kind,” the records of many regularly conducted activities will, or may be, excluded from evidence. Under the principle of ejusdem generis, the intent of “calling of every kind” would seem to be related to work-related endeavors—e.g., butcher, baker, artist, etc.

Thus, it appears that the records of many institutions or groups might not be admissible under the House amendments. For example, schools, churches, and hospitals will not normally be considered businesses within the definition. Yet, these are groups which keep financial and other records on a regular basis in a manner similar to business enterprises. We believe these records are of equivalent trustworthiness and should be admitted into evidence.

Three states, which have recently codified their evidence rules, have adopted the Supreme Court version of rule 803(6), providing for admission of memoranda of a “regularly conducted activity.” None adopted the words “business activity” used in the House amendment. [See Nev. Rev. Stats. §15.135; N. Mex. Stats. (1973 Supp.) §20–4–803(6); West’s Wis. Stats. Anno. (1973 Supp.) §908.03(6).]

Therefore, the committee deleted the word “business” as it appears before the word “activity”. The last sentence then is unnecessary and was also deleted.

It is the understanding of the committee that the use of the phrase “person with knowledge” is not intended to imply that the party seeking to introduce the memorandum, report, record, or data compilation must be able to produce, or even identify, the specific individual upon whose first-hand knowledge the memorandum, report, record or data compilation was based. A sufficient foundation for the introduction of such evidence will be laid if the party seeking to introduce the evidence is able to show that it was the regular practice of the activity to base such memorandums, reports, records, or data compilations upon a transmission from a person with knowledge, e.g., in the case of the content of a shipment of goods, upon a report from the company’s receiving agent or in the case of a computer printout, upon a report from the company’s computer programer or one who has knowledge of the particular record system. In short, the scope of the phrase “person with knowledge” is meant to be coterminous with the custodian of the evidence or other qualified witness. The committee believes this represents the desired rule in light of the complex nature of modern business organizations.

The House approved rule 803(8), as submitted by the Supreme Court, with one substantive change. It excluded from the hearsay exception reports containing matters observed by police officers and other law enforcement personnel in criminal cases. Ostensibly, the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.

The committee accepts the House’s decision to exclude such recorded observations where the police officer is available to testify in court about his observation. However, where he is unavailable as unavailability is defined in rule 804(a)(4) and (a)(5), the report should be admitted as the best available evidence. Accordingly, the committee has amended rule 803(8) to refer to the provision of [proposed] rule 804(b)(5) [deleted], which allows the admission of such reports, records or other statements where the police officer or other law enforcement officer is unavailable because of death, then existing physical or mental illness or infirmity, or not being successfully subject to legal process.

The House Judiciary Committee report contained a statement of intent that “the phrase ‘factual findings’ in subdivision (c) be strictly construed and that evaluations or opinions contained in public reports shall not be admissible under this rule.” The committee takes strong exception to this limiting understanding of the application of the rule. We do not think it reflects an understanding of the intended operation of the rule as explained in the Advisory Committee notes to this subsection. The Advisory Committee notes on subsection (c) of this subdivision point out that various kinds of evaluative reports are now admissible under Federal statutes. 7 U.S.C. §78, findings of Secretary of Agriculture prima facie evidence of true grade of grain; 42 U.S.C. §269(b), bill of health by appropriate official prima facie evidence of vessel’s sanitary history and condition and compliance with regulations. These statutory exceptions to the hearsay rule are preserved. Rule 802. The willingness of Congress to recognize these and other such evaluative reports provides a helpful guide in determining the kind of reports which are intended to be admissible under this rule. We think the restrictive interpretation of the House overlooks the fact that while the Advisory Committee assumes admissibility in the first instance of evaluative reports, they are not admissible if, as the rule states, “the sources of information or other circumstances indicate lack of trustworthiness.”

The Advisory Committee explains the factors to be considered:

* * * * *

Factors which may be assistance in passing upon the admissibility of evaluative reports include: (1) the timeliness of the investigation, McCormick, Can the Courts Make Wider Use of Reports of Official Investigations? 42 Iowa L.Rev. 363 (1957); (2) the special skill or experience of the official, id.; (3) whether a hearing was held and the level at which conducted, Franklin v. Skelly Oil Co., 141 F.2d 568 (19th Cir. 1944); (4) possible motivation problems suggested by Palmer v. Hoffman318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Others no doubt could be added.

* * * * *

The committee concludes that the language of the rule together with the explanation provided by the Advisory Committee furnish sufficient guidance on the admissibility of evaluative reports.

The proposed Rules of Evidence submitted to Congress contained identical provisions in rules 803 and 804 (which set forth the various hearsay exceptions), admitting any hearsay statement not specifically covered by any of the stated exceptions, if the hearsay statement was found to have “comparable circumstantial guarantees of trustworthiness.” The House deleted these provisions (proposed rules 803(24) and 804(b)(6)[(5)]) as injecting “too much uncertainty” into the law of evidence and impairing the ability of practitioners to prepare for trial. The House felt that rule 102, which directs the courts to construe the Rules of Evidence so as to promote growth and development, would permit sufficient flexibility to admit hearsay evidence in appropriate cases under various factual situations that might arise.

We disagree with the total rejection of a residual hearsay exception. While we view rule 102 as being intended to provide for a broader construction and interpretation of these rules, we feel that, without a separate residual provision, the specifically enumerated exceptions could become tortured beyond any reasonable circumstances which they were intended to include (even if broadly construed). Moreover, these exceptions, while they reflect the most typical and well recognized exceptions to the hearsay rule, may not encompass every situation in which the reliability and appropriateness of a particular piece of hearsay evidence make clear that it should be heard and considered by the trier of fact.

The committee believes that there are certain exceptional circumstances where evidence which is found by a court to have guarantees of trust worthiness equivalent to or exceeding the guarantees reflected by the presently listed exceptions, and to have a high degree of prolativeness and necessity could properly be admissible.

The case of Dallas County v. Commercial Union Assoc. Co., Ltd., 286 F.2d 388 (5th Cir. 1961) illustrates the point. The issue in that case was whether the tower of the county courthouse collapsed because it was struck by lightning (covered by insurance) or because of structural weakness and deterioration of the structure (not covered). Investigation of the structure revealed the presence of charcoal and charred timbers. In order to show that lightning may not have been the cause of the charring, the insurer offered a copy of a local newspaper published over 50 years earlier containing an unsigned article describing a fire in the courthouse while it was under construction. The Court found that the newspaper did not qualify for admission as a business record or an ancient document and did not fit within any other recognized hearsay exception. The court concluded, however, that the article was trustworthy because it was inconceivable that a newspaper reporter in a small town would report a fire in the courthouse if none had occurred. See also United States v. Barbati, 284 F. Supp. 409 (E.D.N.Y. 1968).

Because exceptional cases like the Dallas County case may arise in the future, the committee has decided to reinstate a residual exception for rules 803 and 804(b).

The committee, however, also agrees with those supporters of the House version who felt that an overly broad residual hearsay exception could emasculate the hearsay rule and the recognized exceptions or vitiate the rationale behind codification of the rules.

Therefore, the committee has adopted a residual exception for rules 803 and 804(b) of much narrower scope and applicability than the Supreme Court version. In order to qualify for admission, a hearsay statement not falling within one of the recognized exceptions would have to satisfy at least four conditions. First, it must have “equivalent circumstantial guarantees of trustworthiness.” Second, it must be offered as evidence of a material fact. Third, the court must determine that 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.” This requirement is intended to insure that only statements which have high probative value and necessity may qualify for admission under the residual exceptions. Fourth, the court must determine that “the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.”

It is intended that the residual hearsay exceptions will be used very rarely, an only in exceptional circumstances. The committee does not intend to establish a broad license for trial judges to admit hearsay statements that do not fall within one of the other exceptions contained in rules 803 and 804(b). The residual exceptions are not meant to authorize major judicial revisions of the hearsay rule, including its present exceptions. Such major revisions are best accomplished by legislative action. It is intended that in any case in which evidence is sought to be admitted under these subsections, the trial judge will exercise no less care, reflection and caution than the courts did under the common law in establishing the now-recognized exceptions to the hearsay rule.

In order to establish a well-defined jurisprudence, the special facts and circumstances which, in the court’s judgment, indicates that the statement has a sufficiently high degree of trustworthiness and necessity to justify its admission should be stated on the record. It is expected that the court will give the opposing party a full and adequate opportunity to contest the admission of any statement sought to be introduced under these subsections.

Notes of Conference Committee, House Report No. 93–1597

Rule 803 defines when hearsay statements are admissible in evidence even though the declarant is available as a witness. The Senate amendments make three changes in this rule.

The House bill provides in subsection (6) that records of a regularly conducted “business” activity qualify for admission into evidence as an exception to the hearsay rule. “Business” is defined as including “business, profession, occupation and calling of every kind.” The Senate amendment drops the requirement that the records be those of a “business” activity and eliminates the definition of “business.” The Senate amendment provides that records are admissible if they are records of a regularly conducted “activity.”

The Conference adopts the House provision that the records must be those of a regularly conducted “business” activity. The Conferees changed the definition of “business” contained in the House provision in order to make it clear that the records of institutions and associations like schools, churches and hospitals are admissible under this provision. The records of public schools and hospitals are also covered by Rule 803(8), which deals with public records and reports.

The Senate amendment adds language, not contained in the House bill, that refers to another rule that was added by the Senate in another amendment ([proposed] Rule 804(b)(5)—Criminal law enforcement records and reports [deleted]).

In view of its action on [proposed] Rule 804(b)(5) (Criminal law enforcement records and reports) [deleted], the Conference does not adopt the Senate amendment and restores the bill to the House version.

The Senate amendment adds a new subsection, (24), which makes admissible a hearsay statement not specifically covered by any of the previous twenty-three subsections, if the statement has equivalent circumstantial guarantees of trustworthiness and 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 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.

The House bill eliminated a similar, but broader, provision because of the conviction that such a provision injected too much uncertainty into the law of evidence regarding hearsay and impaired the ability of a litigant to prepare adequately for trial.

The Conference adopts the Senate amendment with an amendment that provides that a party intending to request the court to use a statement under this provision must notify any adverse party of this intention as well as of the particulars of the statement, including the name and address of the declarant. This notice must be given sufficiently in advance of the trial or hearing to provide any adverse party with a fair opportunity to prepare to contest the use of the statement.

Notes of Advisory Committee on Rules—1987 Amendment

The amendments are technical. No substantive change is intended.

Notes of Advisory Committee on Rules—1997 Amendment

The contents of Rule 803(24) and Rule 804(b)(5) have been combined and transferred to a new Rule 807. This was done to facilitate additions to Rules 803 and 804. No change in meaning is intended.

GAP Report on Rule 803. The words “Transferred to Rule 807” were substituted for “Abrogated.”

Committee Notes on Rules—2000 Amendment

The amendment provides that the foundation requirements of Rule 803(6) can be satisfied under certain circumstances without the expense and inconvenience of producing time-consuming foundation witnesses. Under current law, courts have generally required foundation witnesses to testify. See, e.g., Tongil Co., Ltd. v. Hyundai Merchant Marine Corp., 968 F.2d 999 (9th Cir. 1992) (reversing a judgment based on business records where a qualified person filed an affidavit but did not testify). Protections are provided by the authentication requirements of Rule 902(11) for domestic records, Rule 902(12) for foreign records in civil cases, and 18 U.S.C. §3505 for foreign records in criminal cases.

GAP Report—Proposed Amendment to Rule 803(6). The Committee made no changes to the published draft of the proposed amendment to Evidence Rule 803(6).

Committee Notes on Rules—2011 Amendment

The language of Rule 803 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Committee Notes on Rules—2013 Amendment

Rule 803(10) has been amended in response to Melendez-Diaz v. Massachusetts, 557. U.S. 305 (2009). The Melendez-Diaz Court declared that a testimonial certificate could be admitted if the accused is given advance notice and does not timely demand the presence of the official who prepared the certificate. The amendment incorporates, with minor variations, a “notice-and-demand” procedure that was approved by the Melendez-Diaz Court. See Tex. Code Crim. P. Ann., art. 38.41.

Committee Notes on Rules—2014 Amendment

Changes Made After Publication and Comment. No changes were made after publication and comment.

Amendment by Public Law

1975 —Exception (23). Pub. L. 94–149 inserted a comma immediately after “family” in catchline.

The Rule has been amended to clarify that if the proponent has established the stated requirements of the exception–regular business with regularly kept record, source with personal knowledge, record made timely, and foundation testimony or certification–then the burden is on the opponent to show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. While most courts have imposed that burden on the opponent, some have not. It is appropriate to impose this burden on opponent, as the basic admissibility requirements are sufficient to establish a presumption that the record is reliable.

The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. A determination of untrustworthiness necessarily depends on the circumstances.

Changes Made After Publication and Comment

In accordance with a public comment, a slight change was made to the Committee Note to better track the language of the rule.

The Rule has been amended to clarify that if the proponent has established the stated requirements of the exception–set forth in Rule 803(6)–then the burden is on the opponent to show that the possible source of the information or other circumstances indicate a lack of trustworthiness. The amendment maintains consistency with the proposed amendment to the trustworthiness clause of Rule 803(6).

Changes Made After Publication and Comment

In accordance with a public comment, a slight change was made to the Committee Note to better track the language of the rule.

The Rule has been amended to clarify that if the proponent has established that the record meets the stated requirements of the exception–prepared by a public office and setting out information as specified in the Rule–then the burden is on the opponent to show that the source of information or other circumstances indicate a lack of trustworthiness. While most courts have imposed that burden on the opponent, some have not. Public records have justifiably carried a presumption of reliability, and it should be up to the opponent to “demonstrate why a time-tested and carefully considered presumption is not appropriate.” Ellis v. International Playtex, Inc., 745 F.2d 292, 301 (4th Cir. 1984). The amendment maintains consistency with the proposed amendment to the trustworthiness clause of Rule 803(6).

The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. A determination of untrustworthiness necessarily depends on the circumstances.

Changes Made After Publication and Comment

In accordance with a public comment, a slight change was made to the Committee Note to better track the language of the rule.

Committee Notes on Rules—2017 Amendment

The ancient documents exception to the rule against hearsay has been limited to statements in documents prepared before January 1, 1998. The Committee has determined that the ancient documents exception should be limited due to the risk that it will be used as a vehicle to admit vast amounts of unreliable electronically stored information (ESI). Given the exponential development and growth of electronic information since 1998, the hearsay exception for ancient documents has now become a possible open door for large amounts of unreliable ESI, as no showing of reliability needs to be made to qualify under the exception.

The Committee is aware that in certain cases—such as cases involving latent diseases and environmental damage—parties must rely on hardcopy documents from the past. The ancient documents exception remains available for such cases for documents prepared before 1998. Going forward, it is anticipated that any need to admit old hardcopy documents produced after January 1, 1998 will decrease, because reliable ESI is likely to be available and can be offered under a reliability-based hearsay exception. Rule 803(6) may be used for many of these ESI documents, especially given its flexible standards on which witnesses might be qualified to provide an adequate foundation. And Rule 807 can be used to admit old documents upon a showing of reliability—which will often (though not always) be found by circumstances such as that document was prepared with no litigation motive in mind, close in time to the relevant events. The limitation of the ancient documents exception is not intended to raise an inference that 20-year-old documents are, as a class, unreliable, or that they should somehow not qualify for admissibility under Rule 807. Finally, many old documents can be admitted for the non-hearsay purpose of proving notice, or as party-opponent statements.

The limitation of the ancient documents hearsay exception is not intended to have any effect on authentication of ancient documents. The possibility of authenticating an old document under Rule 901(b)(8)—or under any ground available for any other document—remains unchanged.

The Committee carefully considered, but ultimately rejected, an amendment that would preserve the ancient documents exception for hardcopy evidence only. A party will often offer hardcopy that is derived from ESI. Moreover, a good deal of old information in hardcopy has been digitized or will be so in the future. Thus, the line between ESI and hardcopy was determined to be one that could not be drawn usefully.

The Committee understands that the choice of a cut-off date has a degree of arbitrariness. But January 1, 1998 is a rational date for treating concerns about old and unreliable ESI. And the date is no more arbitrary than the 20-year cutoff date in the original rule. See Committee Note to Rule 901(b)(8) (“Any time period selected is bound to be arbitrary.”).

Under the amendment, a document is “prepared” when the statement proffered was recorded in that document. For example, if a hardcopy document is prepared in 1995, and a party seeks to admit a scanned copy of that document, the date of preparation is 1995 even though the scan was made long after that—the subsequent scan does not alter the document. The relevant point is the date on which the information is recorded, not when the information is prepared for trial. However, if the content of the document is itself altered after the cut-off date, then the hearsay exception will not apply to statements that were added in the alteration. source

 


To Learn More…. Read MORE Below and click the links Below 


Abuse & Neglect The Mandated Reporters  (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About:
The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRAClick Here

 Mandated Reporter formMandated ReporterFORM SS 8572.pdfThe Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS  INFO BULLETIN:
Click Here Officers and DA’s
 for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law  its a PDF file


Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of AssemblyPeaceful Assembly1st Amendment Right

Supreme Court sets higher bar for prosecuting threats under First Amendment 2023 SCOTUS

We also have the Brayshaw v. City of Tallahassee1st Amendment Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019)1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006)1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims
Against Government Officials1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims
Against Government Officials1st Amendment

Can You Annoy the Government? – 1st Amendment

Freedom of the Press Flyers, Newspaper, Leaflets, Peaceful Assembly1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers1st Amendment Protected Speech

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive 1st Amendment

Paglia & Associates Construction v. HamiltonPublic Internet Posts & Public Criticisms – Bad Reviews1st Amendment

Right to Record Government Officials Engaged in the Exercise of their Official Duties


Learn More About True Threats Here below….

Counterman v. Colorado Supreme Court sets higher bar for prosecuting threats under First Amendment

We also have the The Brandenburg v. Ohio (1969)1st Amendment

CURRENT TEST = We also have the TheBrandenburg testfor incitement to violence 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United StatesTrue Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

 


Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment


Mi$Conduct Pro$ecutorial Mi$Conduct Prosecutor$

Attorney Rule$ of EngagementGovernment (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & ProsecutorRules of Professional Conduct

Functions and Duties of the ProsecutorProsecution Conduct

Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Fighting Discovery Abuse in LitigationForensic & Investigative AccountingClick Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the ProsecutorProsecution Conduct

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF


Mi$Conduct JudiciaMi$Conduct  Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial OfficerC.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial PerformanceJudge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case


DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge Due Process 5th, & 14th Amendment

 Mathews Test3 Part TestAmdt5.4.5.4.2 Mathews Test

UnfriendingEvidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts  1st Amendment
so if you are interested in learning about 
Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

Right to Travel freely – When the Government Obstructs Your Movement – 14th Amendment & 5th Amendment

What is Probable Cause? and.. How is Probable Cause Established?

Misuse of the Warrant System – California Penal Code § 170Crimes Against Public Justice 4th, 5th, & 14th Amendment

What Is Traversing a Warrant (a Franks Motion)?

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment


Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

ARE PEOPLE LYING ON YOU?
CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 115 PCFiling a False Document in California

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PCOffering False Evidence

Penal Code 134 PCPreparing False Evidence

Crimes Against Public Justice

Penal Code 118.1 PCPolice Officer$ Filing False Report$

Spencer v. PetersPolice Fabrication of Evidence – 14th Amendment

Lying Cop or Citizen – PC 129 Preparing False Statement or Report Under Oath

Penal Code 132 PCOffering False Evidence

Penal Code 134 PCPreparing False Evidence

Penal Code 135 PCDestroying or Concealing Evidence

Lying Cop or Citizen – PC 129 Preparing False Statement or Report Under Oath

Penal Code 141 PC Planting or Tampering with Evidence in California

Penal Code 142 PCPeace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

PC 146 Penal CodeFalse Arrest

Penal Code 148.5 PC –  Making a False Police Report in California

Misuse of the Warrant SystemCalifornia Penal Code § 170

Penal Code 182 PC “Criminal Conspiracy” Laws & Penalties

Penal Code § 236 PCFalse Imprisonment

Penal Code 664 PC “Attempted Crimes” in California

Penal Code 31 PC – Aiding and Abetting Laws

Penal Code 32 PC – Accessory After the Fact

What is Abuse of Process? 

What is a Due Process Violation? – 4th Amendment & 14th Amendment

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)


Misconduct by Government Know Your Rights Click Here 

 Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242Deprivation of Right$ Under Color of Law

18 U.S. Code § 241Conspiracy against Right$

Section 1983 LawsuitHow to Bring a Civil Rights Claim

 Suing for MisconductKnow More of Your Right$

Police Misconduct in CaliforniaHow to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence
from Your Case 

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?


Tort Claims Form
File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death (see below)

Federal –  Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States


How do I submit a request for information?

To submit a request send the request via mail, fax, or email to the agency. Some agencies list specific departments or people whose job it is to respond to PRA requests, so check their websites or call them for further info. Always keep a copy of your request so that you can show what you submitted and when.

Templates for Sample Requests

Incident Based Request: Use this template if you want records related to a particular incident, like the investigative record for a specific police shooting, an arrest where you believe an officer may have been found to have filed a false report, or to find out whether complaint that an officer committed sexual assault was sustained.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

Officer Based Request: Use this template if you want to find any public records of misconduct related to a particular officer or if he or she has been involved in past serious uses of force.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

The First Amendment Coalition also has some useful information to help explain the PRA process.

Sample Letter | SB 1421 & SB 16 Records

Download Word document | Download PDF

 


Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get StartedClick Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation 

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California –  Motion to Dismiss

WIC § 700.1If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal Felony (Defendant) (CR-120)  1237, 1237.5, 1538.5(m) – Click Here

California Motions in LimineWhat is a Motion in Limine?

Petition for a Writ of Mandate or Writ of Mandamus (learn more…)

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise


Retrieving Evidence / Internal Investigation Case 

Pitchess Motion & the Public Inspection of Police Records

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDAClick Here

Fighting Discovery Abuse in LitigationForensic & Investigative AccountingClick Here

Orange County / LA County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below: 

SEARCH SB-1421 SB-16 Incidents of LA County, Oakland

California Senate Bill 16 (SB 16) – 2023-2024 – Peace officers: Release of Records

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case InformationClick Here

Texts / Emails AS EVIDENCEAuthenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior CourtReleasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Rules of AdmissibilityEvidence Admissibility

Confrontation ClauseSixth Amendment

Exceptions To The Hearsay RuleConfronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the ProsecutorProsecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Section 832.7Peace officer or custodial officer personnel records

Senate Bill No. 1421 California Public Records Act

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records

How Access to California Police Records

Los Angeles County Sheriff’s Department SB-1421 Records

 SB1421 – Form Access to California Police Records

California Statewide CPRA Requests Submit a CPRA Request 

Electronic Audio Recording Request of OC Court Hearings

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Police BodyCam Footage Release


Cleaning Up Your Record

Tossing Out an Inferior JudgementWhen the Judge Steps on Due Process – California Constitution Article VI – Judicial Section 13

Penal Code 851.8 PCCertificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest RecordsDownload the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act 851.87 – 851.92  & 1000.4 – 11105 CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in CaliforniaPenal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons –What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a MisdemeanorPenal Code 17b PC Motion


PARENT CASE LAW 

RELATIONSHIP WITH YOUR CHILDREN &
YOUR
CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law AppealLearn about appealing a Family Court Decision Here

9.3 Section 1983 Claim Against Defendant as (Individuals)14th Amendment this CODE PROTECT$ all US CITIZEN$

Amdt5.4.5.6.2 – Parental and Children’s Rights“> – 5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1The Bane ActInterference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

Child’s Best Interest in Custody Cases

Are You From Out of State (California)?  FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

Can You Transfer Your Case to Another County or State With Family Law? – Challenges to Jurisdiction

Venue in Family Law Proceedings


GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C)Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000)Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular RightsFourteenth AmendmentInterference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate?Reason for Joinder

Joinder In Family Law CasesCRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation


Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse AllegationsFamily Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee RecoveryClick Here

Zamos v. StroudDistrict Attorney Liable for Bad Faith ActionClick Here

Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed


 Epic Criminal / Civil Right$ SCOTUS Help Click Here

At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling Parental Right$ Help Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors


Please take time to learn new UPCOMING 

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.


 

God leaves NO CHILD LEFT BEHIND, it’s the child who refuses to return to his Father!

Our Father is always available, never drunk, never lies, never allows any harm to his children… (a perfect father, hence the name God, the creator)
the harm that one may perceive is not harm but an awakening, if you join with him by asking for his help
pray with good intent in your heart, believe like you once believed in Santa! That means NO DOUBT, 100% PURE TRUST in him!
He never lies, He will deliver! God, through Jesus and only him will give you what you need when you need it!

 

Gospel Mt 11:28-30

Jesus said to the crowds:

“Come to me, all you who labor and are burdened,
and I will give you rest.
Take my yoke upon you and learn from me,
for I am meek and humble of heart;
and you will find rest for yourselves.
For my yoke is easy, and my burden light.”

Trust God!

He Lives in Those Whom Invite Their Father In

Nothing Formed Against You Shall Prosper !