27.3 Hearsay Exceptions Not Requiring Unavailability (FRE 803)

27.3 Hearsay Exceptions Not Requiring Unavailability (FRE 803)

The Rule 803 exceptions apply whether or not the declarant is available to testify, because the circumstances in which the statements were made—spontaneity, a patient's interest in accurate treatment, or a business's reliance on accurate records—supply reliability. In a criminal case, remember that a statement satisfying a hearsay exception may still be barred by the Confrontation Clause if it is testimonial (Section 27.4).

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Under Federal Rule of Evidence 803, twenty-three distinct exceptions permit the admission of out-of-court statements for the truth of the matter asserted regardless of whether the declarant is available or unavailable as a witness. The underlying premise is that specific objective circumstances—such as spontaneity, contemporaneity, routine business regularity, or legal reporting duties—provide circumstantial guarantees of reliability that equal or surpass live courtroom testimony.

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1. Present Sense Impression (FRE 803(1))

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

• Contemporaneity Requirement: The statement must be virtually instantaneous with the perception. A lapse of even a few minutes usually defeats the exception unless the declarant was actively engaged in ongoing perception or the delay was necessitated by the immediate circumstances.
• Scope: The statement is strictly limited to describing or explaining the event. It does not encompass reflective analysis, speculation, or statements concerning past events.
• Example: A passenger in a car observes a speeding motorcycle and states: "Look at that blue bike weaving through traffic at 90 miles per hour!" The statement describes the event while perceiving it and is admissible under FRE 803(1).

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2. Excited Utterance (FRE 803(2))

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

                       ┌──────────────────────────────────────────────┐
                       │       Did a Startling Event Occur?           │
                       └──────────────────────┬───────────────────────┘
                                              │ YES
                                              ▼
                       ┌──────────────────────────────────────────────┐
                       │  Was Declarant Under Continuous Stress of    │
                       │           Excitement When Speaking?          │
                       └──────────────────────┬───────────────────────┘
                                              │ YES
                                              ▼
                       ┌──────────────────────────────────────────────┐
                       │   Does the Statement Relate to the Event?    │
                       │         (Broader than Description)           │
                       └──────────────────────┬───────────────────────┘
                                              │ YES
                                              ▼
                       ┌──────────────────────────────────────────────┐
                       │ ADMISSIBLE EXCITED UTTERANCE (FRE 803(2))    │
                       └──────────────────────────────────────────────┘

Elements of an Excited Utterance:

1. Startling Event: An event sufficiently startling to produce nervous excitement and suspend reflective capacity (e.g., car crash, shooting, sudden fire, physical assault).
2. Personal Perception: The declarant must have personally perceived the startling occurrence.
3. Under the Stress of Excitement: The declarant must be speaking while in a state of emotional shock or agitation. Physical manifestations (screaming, shaking, crying, rapid pulse) demonstrate excitement.
4. Timing: While contemporaneity is helpful, an excited utterance does not require instantaneity. If the declarant remained under continuous stress (e.g., an unconscious victim regaining consciousness at the hospital, or a terrified child assaulted hours earlier), statements made hours later can still qualify as excited utterances.
5. Scope: The rule requires only that the statement relate to the startling event—a standard substantially broader than the "describing or explaining" standard of present sense impression.

Present Sense Impression vs. Excited Utterance

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3. Then-Existing Mental, Emotional, or Physical Condition (FRE 803(3))

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).

• Physical Condition: Statements of present bodily symptoms, pain, or sensations ("My lower back is burning," "I feel sharp chest pain") are admissible, regardless of to whom they are spoken.
• State of Mind / Intent (Mutual Life Ins. Co. v. Hillmon): Under the Hillmon doctrine, a declarant's statement of then-existing intent or plan is admissible to prove that the declarant subsequently acted in accordance with that plan. For example, the statement "I am leaving for Chicago tomorrow morning with Frank" is admissible to prove that the declarant went to Chicago. Whether it may also prove that Frank went is disputed: the House Judiciary Committee's report on Rule 803(3) states that the rule should be construed so that a statement of intent proves only the declarant's own future conduct, while some courts admit such statements to prove another person's conduct when independent evidence corroborates it.
• The Backward-Looking Prohibition (No Statements of Memory or Belief): FRE 803(3) explicitly excludes a statement of memory or belief to prove the fact remembered or believed. Statements looking backward ("I believe Dan hit me yesterday," "I remember signing the contract") are inadmissible hearsay.
• The Wills Exception: Statements of memory or belief are admissible if they relate to the validity, revocation, execution, or terms of the declarant's will.

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4. Statement for Medical Diagnosis or Treatment (FRE 803(4))

A statement that:

1. Is made for—and is reasonably pertinent to—medical diagnosis or treatment; and
2. Describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Critical Rules and MBE Traps:

• Recipients: Statements can be made to treating physicians, consulting experts retained solely to testify at trial, nurses, emergency medical technicians (EMTs), hospital intake clerks, or even family members, provided the purpose is securing medical diagnosis or care.
• Past Symptoms Covered: Unlike FRE 803(3) which requires present symptoms, FRE 803(4) admits past symptoms and medical history ("Three weeks ago I lost vision in my left eye").
• General Cause vs. Fault Attribution: Statements regarding the general mechanism of injury are admissible because doctors rely on them for treatment (e.g., "I was struck by an automobile on my left side"). However, statements attributing fault or identifying the tortfeasor are NOT reasonably pertinent to diagnosis or treatment and must be excluded (e.g., "I was struck by a car that ran a red light driven by John Smith" -> "struck by a car" is admitted; "ran a red light driven by John Smith" is redacted).
• Child Abuse and Domestic Violence: Many courts hold that in child abuse and domestic violence cases, the identity of the abuser is reasonably pertinent to treatment, because treatment includes psychological care and protecting the patient from being returned to a dangerous environment.

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5. Recorded Recollection (FRE 803(5))

A record that:

1. Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
2. Was made or adopted by the witness when the matter was fresh in the witness's memory; and
3. Accurately reflects the witness's knowledge.

Procedural Display Rule: If admitted under FRE 803(5), the record may be read into evidence before the jury, but the writing itself MAY NOT be received as an exhibit unless offered by an adverse party. This prevents the jury from overemphasizing written testimony during deliberations.

Refreshing Recollection (FRE 612) vs. Recorded Recollection (FRE 803(5))

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6. Records of a Regularly Conducted Activity / Business Records (FRE 803(6))

A record of an act, event, condition, opinion, or diagnosis is admissible if:

1. The record was made at or near the time of the event;
2. By—or from information transmitted by—someone with personal knowledge;
3. The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling (for-profit, non-profit, or government);
4. Making the record was a regular practice of that activity; and
5. These conditions are shown by the testimony of the custodian or other qualified witness, or by a certification complying with FRE 902(11) or 902(12).
6. Lack of Trustworthiness Bar: The record is inadmissible if the opponent shows that the source of information or circumstances of preparation indicate a lack of trustworthiness.

The Business Duty Rule (Johnson v. Lutz)

Under the landmark doctrine of Johnson v. Lutz, every person in the chain of transmission—from the initial informant who perceived the event to the final person who recorded it—must act pursuant to an official business duty.

• If an outside citizen or bystander provides information to a business recorder (e.g., a witness telling a police officer how a collision occurred), the bystander owes no business duty to the reporting agency. The bystander's statement constitutes an independent layer of hearsay (multiple hearsay under FRE 805) and cannot enter under the business records exception alone unless an independent exception (such as excited utterance) applies.

Records Prepared for Litigation (Palmer v. Hoffman)

Records prepared primarily for anticipation of litigation or trial lack regular business motivation and inherent trustworthiness. Accident reports prepared by a railroad engineer or corporate safety director solely for defense in prospective lawsuits fail under FRE 803(6).

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7. Public Records (FRE 803(8))

A record or statement of a public office setting out:

1. The office's activities (e.g., receipt of tax payments, issuance of marriage licenses);
2. A matter observed while under a legal duty to report, EXCLUDING in criminal cases matters observed by law enforcement personnel against the defendant; or
3. In a civil case or against the government in a criminal case, factual findings from a legally authorized investigation.

Key Rules:

• Law Enforcement Exclusion in Criminal Cases: Police investigative reports detailing observations at crime scenes cannot be admitted against a criminal defendant under FRE 803(8) or FRE 803(6). The officer must testify live to protect constitutional confrontation principles. However, routine non-adversarial administrative records (e.g., calibration records of a breathalyzer machine) do not fall under this exclusion.
• Factual Findings (Beech Aircraft Corp. v. Rainey): In civil cases and against the government in criminal cases, evaluative public investigative reports (e.g., an NTSB aircraft crash report or OSHA factory explosion report) include both factual findings and evaluative opinions or conclusions reached by investigators.

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8. Learned Treatises (FRE 803(18))

A statement contained in a treatise, periodical, or pamphlet on history, medicine, or science is admissible if:

1. The publication is established as a reliable authority by the testimony of the witness, another expert, or judicial notice; and
2. The statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination.

• Procedural Limitation: Like recorded recollection, the statements may be read into evidence, but the treatise itself MAY NOT be received as an exhibit.

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Top FRE 803 Hearsay Exceptions Summary

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Other Rule 803 Exceptions

Applying Rule 803 in Criminal Cases

• Nontestimonial statements that fit an exception—such as a frightened victim's 911 call during an ongoing emergency, statements to friends, or ordinary business records—face no Confrontation Clause barrier.
• Testimonial statements fitting an exception—such as a victim's formal statement to police after the emergency ended or a forensic laboratory report—are inadmissible against the defendant unless the declarant testifies or is unavailable and was previously cross-examined.
• Law enforcement records: Rule 803(8)(A)(ii) excludes matters observed by law enforcement personnel when offered against a criminal defendant, and most courts will not let the prosecution avoid that limit by relabeling a police report as a business record.