Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Series - RULE 803 Cont.

Montgomery County Criminal Defense Attorney - Texas Rules of Evidence 803 - Brian Foley Board Certified in Criminal Law.

We are continuing our series with exceptions to the rule against hearsay which can be used even if the witness is available to testify at trial.

Today we will be covering subsections 4-7:

(4) Statement[s] Made for Medical Diagnosis or Treatment.

(5) Recorded Recollection.

(6) Records of a Regularly Conducted Activity (Business Records); and

(7) Absence of a Record of a Regularly Conducted Activity (Absence of Business Record).

STATEMENTS MADE FOR MEDICAL DIAGNOSIS OR TREATMENT

This rule is pretty self explanatory. It is an exception to the rule against hearsay that the statement was made because you were seeking medical help. So statements made to EMS personnel on the scene of a traffic accident or at the hospital after being transported are likely to qualify. "I ran through the light when it was red and now my neck hurts." The whole thing is coming in.

In the criminal context a defendant's statements that are self serving after a DWI arrest may be excluded because they do not fit the rationale that a person seeking medical help will not fabricate their symptoms. Sneed v. State, 955 S.W.2d 451 (Tex. App. -- Houston [14th Dist] 1997, pet. ref'd).

The statement can include the identity of the person who caused the medical situation. For example in Bargas v. State, 252 S.W.3d 876, (Tex. App. -- Houston [14th Dist.] 2008, no pet.) the court held that the statement of the identity of a person who abused a child was pertinent to the child's medical treatment because treatment involved removing the child from the abusive setting.

Statements to a CPS worker are not normally made for medical diagnosis and treatment. Gohring v. State, 967 S.W.2d 459 (Tex. App. - Beaumont 1998, no pet.).

RECORDED RECOLLECTION:

The recorded recollection hearsay exception may be used when witness is available but their memory is not. If you made a list of all the things that were stolen from your house right after the break in and you can show through the witness that the list accurately reflects their prior knowledge that they have now forgotten you may READ the relevant testimony into evidence.

You cannot offer it as an exhibit under this rule. However, the opposing party may offer it if they think that you are trying to pull a fast one or they want it in for any other purpose. I've had to do this and it is super awkward. I did it to an adverse witness who had written a witness statement about what had happened in an Assault. Ass I started to read it out loud in the witnesses own handwriting he said you can just give it to the jury you don't have to read it right in front of me. The problem was I DID in fact have to read it right in front of her. I couldn't offer it under the rule. Only the adverse party could.

BUSINESS RECORDS - RECORDS OF REGULARLY CONDUCTED ACTIVITY (OR ABSENCE OF THE SAME)

So why don't we just call these business records? Because technically non businesses or organizations could produce these same types of documents and they may be just as reliable.

A record of an act, event, condition, opinion, or diagnosis may be offered even though it is hearsay if the record was made near the time of the event or whatever the record is talking about, in the course of regularly conducted activity, making the record was normal for that business or entity, and all of these are shown through testimony of a person who is in charge of maintaining or keeping those records or offered with a business records affidavit under Rule 902(10).

Medical Records will qualify under this rule, a receipt from a bar or other business, employment records, timesheets showing someone checked into work on a particular day. All of these will be admissible under this rule as an exception to hearsay.

a 911 call recording may be authenticated with a business records affidavit but the statements of a reporting party are not conducted regularly and do not meet the rationale as an exception to hearsay merely under the business records rule. You would have to show either a present sense impression, excited utterance, or some other exception to the rule against hearsay for the statements themselves to be admissible. Stapleton v. State, 868 S.W.2nd 781 (Tex. Crim App. 1993).

The rule is essentially the same but in reverse for the absence of the existence of a record. 911 call records could help disprove someone's assertion that they called 911 on a certain date or time.

Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness 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, unless the circumstances of the record’s preparation cast doubt on its trustworthiness. 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 business activity; (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 an affidavit or unsworn declaration that complies with Rule 902(10); and (E) the opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. “Business” as used in this paragraph includes every kind of regular organized activity whether conducted for profit or not.

(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) the opponent fails to show that the possible source of the information 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) the opponent fails to demonstrate that the source of information 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 the testimony or certification is admitted to prove that: (A) the record or statement does not exist; or (B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.

(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 is at least 20 years old 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) it is offered in a civil case and: (i) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea; (ii) the conviction was for a felony; (iii) the evidence is admitted to prove any fact essential to the judgment; and (iv) an appeal of the conviction is not pending; or (B) it is offered in a criminal case and: (i) the judgment was entered after a trial or a guilty or nolo contendere plea; (ii) the conviction was for a criminal offense; (iii) the evidence is admitted to prove any fact essential to the judgment; (iv) when offered by the prosecutor for a purpose other than impeachment, the judgment was against the defendant; and (v) an appeal of the conviction is not pending.

(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) Statement Against Interest. A statement that: (A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability or to make the declarant an object of hatred, ridicule, or disgrace; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

BORING LEGAL DISCLAIMER

For litigants who do not have counsel: Reading this blog post does not create an attorney client relationship. Call to set up a free consultation.

For the general public: This Blog/Web Site is for educational purposes only and it provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship created. Don't just read this as a substitute for competent legal advice from a licensed attorney.

For attorneys: This Blog is informational and educational in nature and is not a substitute for Westlaw or other research and consultation on specific matters pertaining to your clients. As you know the law can change day to day based on recent case opinions. And unfortunately you shouldn't cite it in court as binding authority because it is not. Mention it to your friends, just seek real consultation if its something important.