Class 19

Rule 803Exceptions
803: dont care if declarant is available (unlike 804)these are called the stronger exceptions b/c dont
need unavailability before they apply
803(3) then existing mental, emotional, physical state have to be experiencing that state at time making
statement about it (what gives it reliability)
(ex) present painyou are experiencing as you say it; experience of past pain cant come in under
803
This also includes statement of intent in the future (admissible b/c experience that intent at time
making the statement)
Statement Regarding Wills Exception under 803(3) can get in past statements regarding wills. If they
regard the will of a declarant (reason: necessityusually involves someone whos dead, evidence showing
what intent was)
Intent statement will come in under general provisions
803
803(3)
1. Then existing statements (currently writing my
will)

803(3)
2. Will portion says + plus blackwards statement

Statements made for medical diagnosis or treatment can get in past or present but has to be made by a
medical person (depression is includeddepression of a result of her and daughter being threatened by son
in law)
803(5)Us v. Mornan (gave a statement to someone in a deposition like procedure and conveniently
forgot what she had said in prior procedure) claimed to have a lapse of memory but prob didnt.
Prosecution tried to get in her prior recollection under 803(5) but couldnt bc she was unable to verify that
what she said in her deposition was true and correct. Ct hints if they ahd put the ct reporter on that might
have been able to come in
Can also do a recollection reordered circumstantiallyyes that is my signature at the bottom of
the transcript. Based on the fact that I dont say anything without it being true, I have a present belief in the
truth for the accuracy of the statement. KEY: you have a present belief

803(6): Business Records

Are admitted b/c they are trustworthy b/c made presumably in an accurate manner to support the business.
They are also necessary. Multiproviders to the business and large pain to have each of those witnesses
testify as to the accuracy of the records.
Players:
1. Supplier of the info (often times a 3P)
*Needs to have personal knowledge of the information in the record
2. Entrant (works for business)
*Does not need to have personal knowledge of the information but entrant DOES have to work for
the business
3. Custodian or other qualified witness person who either testifies in court and lays the business
record predicate or supplies the affidavit
*Someone who is familiar with the 803(6) business record predicatesomeone who knows how
records are kept/stored/disposed of
*Does not have to be the custodian that was employed by the business when the record was
created!!
*Current knowledge of how the records themselves are kept by the business and lay the predicate

See page 329

Ask: Was that record made by a person with knowledge of, or made from info transmitted by a
person w/knowledge of, the acts and events appearing on it?
On a predicate you can lead!
Keogh v. Commissioner of Internal Revenue p. 330
Keogh worked in casino as a 21 dealer (gets tips) & they pull the tips (put all together)have X amount of
$ supposed to report for tax purposes (didnt report all of it as shown by Whitlocks diary)under
reporting income as discovered through Ws ledger
Whitlock (dealer/declarant) kept a diary/personal ledger
IRS wants to use Ws ledger (HSout of court statement that gov is offering to use it for the truth)
Objection: Whitlock is not a businessits a personal record
Ct: If you keep your own personal financial records like you do in your check book (running tally of own
personal expenditures and intake) 803(6) applies to personal financial records!
Rule: Personal records kept for business reasons may be able to qualify. A house keepers record
kept neatly and accurately for purposes of balancing bank statements, keeping strict budgets and
preparing income tax returns could qualify under the statute. The reliability usually found in records
kept by business concerns may be established in personal business records if they are systematically
checked and regulatory and continually maintained
Term business is broad under the rule
How to lay the predicate when W is not the custodian or other qualified witness? Ex wife testifies she is
a qualified witness b/c she was a witness of what he did every night. So anyone who sees that being done
can testify to the regulatory of it (she has personal knowledge).
Ws entries trustworthy? Under the Rule, even if can lay the predicate can object if the records are not
trustworthy.
Rule/Rationale: A man has a direct financial interest in keeping accurate accounts in his
personal business. The cases indicate that private records, if kept regularly and if incidental
to some personal business pursuit, are competent evidence underit made no difference
whether the check account was used for any specific businessIt is settled that the business
need not be commercial. The diary contained his own personal financial records, there is no
reason put forward for him to have lied to himself.
The ledger is trustworthy b/c he would have no motive to liehe had a motive to make it accurate so he
could underreport his income realistically.
What if he kept the ledger to take it to the bank to get a loan? Would it be trustworthy? Less likely b/c fluff
your numbers so more likely to get a loan.
So there may be a question as to why the ledger was kept as to whether or not it is trustworthy. Is there a
motive?
If it is made for purposes of litigation, probably not trustworthy!
Police Reports
No. Police Reports are written up to remember (recollection refresher) & prob cause (statements out of
court not HS if offered to show prob causenot offered to show truth of matter, just offered to show a
reasonable good faith belief)
1. Memorialize the case
2. Supply prob cause
3. Basis for a further investigation

Puts it in as potential leads to investigate purpose of police report POLICE REPORTS ARE NOT
ADMISSIBLE AT ALL WHEN OFFERED BY THE GOV AGAINST THE DEFENDANT &
CONFRONTATION CLAUSE
Confrontation Clause: 6th A, a criminal D has the constitutional right to confront the witnesses against
him. Everything in a police report contains HS that the D cant confront if the police report comes in. This
is why the gov cant simply introduce a police report into evidence as evidence as the Ds guilt.
Hospital Records
Can be admitted but a lot of them contain physician diagnoses. It can be admissible, including Drs or
nurses notations, if they observed (based on personal knowledge) UNLESS its a diagnoses or conclusion
by a Dr. that is something that is prob not in contention much. If its a complicated diagnosis, Drs
statements is recorded in a hospital record is not admissible. If its obvious, then not a lot of contention to
just general diagnosis.
Computer Records
Computer itself (if generates automatic reports itself) not HS. BUT if someone puts something into the
computer then it can be HS. Have to establish an exception that applies under 803 or 804
803(7): Absence of Entry in Records Kept in Accordance with the Provisions of Paragraph 6
Admit the business records of someone to show the lack of a business record that would ordinarily expect
to be there
HYPO: mike is the current records custodian for bank hired 2 wks before trial, Sam failed to make
payments on his loan. Bank sues Sam for $ owed on the loan
Money Bank = P
Sam = Defendant
Mike = Custodian
May I take the witness on voir dire test the witnesses qualification (only hired by bank 2 weeks before
trial)
Last thing youre going to do = got it in, now get Sam to read from the record because now the record is
admissible and he can read from it, I want you to tell the jury what the .
803(8): Public Records & Reports
1. Activities of the office or agency
2. Matters observed pursuant to duty imposed by law as to which matters there was a duty to report
(EXCEPT: criminal cases matters observed by police and other law enforcement)
3. Civil actions and proceedings and against the Gov in criminal cases, factual findings resulting from an
investigation made pursuant to authority granted by law, unless the sources of info or other circumstances
indicate lack of trustworthiness.
Beech Aircraft v. Rainey p 337
Plane Navy crash P alleged crash caused by loss of engine power; D alleged pilot error
JAG report commissioned by the supervisor of the pilots
Report concluded that it was pilot error
Navy people died and Navy commissioned the reportso why would they have a motive to say
that their own pilots were negligent unless it were true (shows trustworthiness); if they were lying
they would fudge it in favor of mechanic problems
Issue: 803(8)(c) Pilot Error = opinion
Factual Finding vs. Opinion
Pilot Error = mix b/w facts and opinion
Can factual findings include Facts + evaluation of those facts

Rule: It can. Factual findings can include evaluative facts (straight facts + reasonable conclusions
from those facts)
Consequences: if you want to get this into evidence it is powerful stuff b/c it favors one side by
concluding pilot error (favors the manufacturer of the airplane) Once this comes into evidence, the
jury looks at it and concludes who is liable via causation of the crash. The report will be used to
determine the causation (Navy investigated it and just adopt the reports position).
Does not mean that the procedures of how the report was conducted to show the trustworthiness of the
Report
Factors: Trustworthiness
1. Timeliness of the investigation/report (longer the wait the less likely; more timely the more trustworthy)
2. Skill of the investigators (could be the investigators first plane crash and have no understand of
aeronautics)
3. Was a Hearing held (if there was, more likely that someone is overseeing the investigation)
4. Was the report prepared for litigation! (kiss of death for trustworthiness if it was)
What if the conclusions in the report are based upon multiple layers of HS? may affect trustworthiness but
not necessarily. If its the type of HS that is normally relied on then typically ok.
Get something in under 803(8)(c) can always attack the sufficiency of reasonableness of the investigation
Rule 804(a): Declarant Unavailable
Just b/c youre unavailable DOESNT MEAN OUT OF COURT HS is going to come in !!!!
Rule 804
1. Unavailability (necessary but not sufficient requirement) &
2. Have to find a HS exception as listed in 804
A. Privilege exempts from testifying (ex. attorney client)
B. Declarant persists in refusing to testify concerning the subj matter of the Declarants statement
despite an order of the ct to do so
C. Testifies to a lack of memory of the sub matter of the Declarants statement
D. Death or then existing physical or mental illness or infirmity (testifying likely to render you
suicidalex. sexual assault cases)
E. Absent from hearing & proponent of stmt has been unable to procure Declarants attendance by
process or other reasonable means
If declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory,
unavailabilitysee page 344
Unavailability
If the testimony against which the evidence is offered
Civil Caseparty against which youre offering (predecessor)
Criminal Caseparty against which.

Former Test
1. See if witness is unavailable (804(a))
2. See where prior testimony was giventrail, hearing, deposition (under oath & subj to cross)
3. See if its a civil or criminal case where the prior/former testimony is offered
Civil Case: opponent of the testimony or the opponents predecessor in interest must have had
an opportunity to cross the declarant
Criminal Case: only the opponent (not predecessor in interest) who must have had opportunity
to cross in the prior testimony

U.S. v. DiNapoli: concrete conspiracy case. Two witnesses

testified during the grand jury indictment & were
questioned by the prosecutor.
Now witnesses
unavailable due to privilege (5th Amendment), and
defense wants to offer the testimony. I: Did the prosecutor
have a similar motive? Held: NO! The prosecutor did not
have as strong of a motive to question during the grand
jury indictment (probable cause standard) v. at trial
(beyond a reasonable doubt). Additionally, what is at stake
is different at grand jury (investigatory motive) and the trial
(prosecutory level).
Note: the prosecution does not always have a dissimilar
motive during the grand jury presentation and at trial -- in
an instance of a criminal defendant; there would likely be a
similar motive.
Test for similar motive in criminal cases:
(1) questioner (who must be the same
person) must be on the same side of the
same issue at both proceedings
(2) whether the question had a
substantially similar degree of interest in
asserting the issue