Not a single right-wingnut bullshitter here knows what "hearsay" is

[Rudy Canoza]

Here is what it isn't: anything that the American hero Cassidy Hutchinson said
to the Jan 6 committee. For one thing, something can only formally be hearsay
if it is said in court, and she wasn't testifying in court.

Here is how the federal rules of evidence define hearsay:

Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or
hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in
the statement.

https://www.law.cornell.edu/rules/fre/rule_801


What was the hero Ms. Hutchinson testifying to in the committee hearing? Was
she testify to:

1. What Trump did with the vehicle and the Secret Service agent; or
2. What Tony Ornato told her that Trump did

It was the latter, of course. She was testifying about what Ornato said, *not*
about what Trump did. Ms. Hutchinson's statement, which is about what Ornato
told her, was made in the hearing. Ms. Hutchinson testifying about what Ornato
said to her is not hearsay. Ornato's statement to Ms. Hutchinson cannot be used
by Ms. Hutchinson to testify about what Trump did, but she wasn't testifying to
that.

Hearsay:

Ms. Hutchinson: "Trump grabbed the steering wheel and then grabbed Engel's
neck."
Ms. Cheney: "How do you know that Trump did that?"
Ms. Hutchinson: "Tony Ornato told me."


_Not_ hearsay:

Ms. Hutchinson: "Tony Ornato said that Trump grabbed the steering wheel and
then grabbed Engle's neck."
Ms. Cheney: "How do you know Ornato said that?"
Ms. Hutchinson: "Because he said it *to me*."


In the first, Ms. Hutchinson would be testifying about Trump's actions, and it
would be hearsay because she didn't witness them. In the second, she is
testifying about Ornato's speech, and she *did* witness it, so it isn't hearsay.

This is settled, and the right-wingnuts are stupid fucking morons.

[Klaus Schadenfreude]

On Sat, 2 Jul 2022 15:36:32 -0700, Rudy Canoza <notg...@gmail.com>
wrote:

>Here is what it isn't: anything that the American hero Cassidy Hutchinson said
>to the Jan 6 committee. For one thing, something can only formally be hearsay
>if it is said in court, and she wasn't testifying in court.
>
>Here is how the federal rules of evidence define hearsay:
>
> Hearsay. “Hearsay” means a statement that:
>
> (1) the declarant does not make while testifying at the current trial or
> hearing; and
>
> (2) a party offers in evidence to prove the truth of the matter asserted in
> the statement.
>
> https://www.law.cornell.edu/rules/fre/rule_801
>
>
>What was the hero Ms. Hutchinson testifying to in the committee hearing? Was
>she testify to:
>
>1. What Trump did with the vehicle and the Secret Service agent; or
>2. What Tony Ornato told her that Trump did

That's hearsay.

[Mr. Weiber]

On 02 Jul 2022, Rudy Canoza <notg...@gmail.com> posted some
news:RL3wK.388279$J0r9....@fx11.iad:

> Here is what it isn't: anything that the American hero Cassidy
> Hutchinson said to the Jan 6 committee. For one thing, something can
> only formally be hearsay if it is said in court, and she wasn't
> testifying in court.
>
> Here is how the federal rules of evidence define hearsay:
>

> Hearsay. “Hearsay†means a statement that:

You're citing the wrong reference to support your argument. That's
usually the case for Democrats who use hormonal urges instead of their
brains.

I'd offer the observation that since the note is in her handwriting, it
could have been made at any time convenient to the gainful intent of
questionable witness, Cassidy Hutchinson. It should be disallowed as not
credible.

I have a note in my deskdrawer that a retired postmaster from Arkansas saw
President Donald Trump in Thurmond, West Virginia on January 6, 2021. It
has the same credibility as Cassidy.

Hearsay

"LAW -
the report of another person's words by a witness, which is usually
disallowed as evidence in a court of law."

https://www.law.cornell.edu/rules/fre/rule_803

Rule 803. Exceptions to the Rule Against Hearsay
Primary tabs
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 States, 290 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. Hillman, 145 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. Kelly, 349 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'Brien, 119 U.S. 99, 7 S.Ct. 118, 30
L.Ed. 299 (1886); Ahern v. Webb, 268 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. Adams, 385 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 States, 300 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.
Robinson, 210 F.2d 192 (3d Cir. 1954); Standard Oil Co. of California v.
Moore, 251 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. Erickson, 226 F.2d 475 (9th Cir. 1955); Thomas v.
Hogan, 308 F.2d 355 (4th Cir. 1962); Glawe v. Rulon, 284 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 States, 217 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. Ware, 247 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 Operators, 304 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 States, 217 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 States, 255 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. McGrath, 196 F.2d
120 (9th Cir. 1952), and see Chesapeake & Delaware Canal Co. v. United
States, 250 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 States, 242 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. Dumas, 149 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 States, 185 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 States, 183 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. Dulles, 229
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.
Hoffman, 318 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. Dunlap, 308
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. Hardy, 237 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.
Gardner, 365 F.2d 554 (6th Cir. 1966); Sayers v. Gardner, 380 F.2d 940
(6th Cir. 1967); Colwell v. Gardner, 386 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. Celebrezze, 331 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.
Pinkus, 338 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. Farrara, 277 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. Talbot, 87 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 States, 174 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 States, 232 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. Hillmon, 145 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.
Hoffman, 318 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.

[Rudy Canoza]

Here is what it isn't: anything that the American hero Cassidy Hutchinson said
to the Jan 6 committee. For one thing, something can only formally be hearsay
if it is said in court, and she wasn't testifying in court.

Here is how the federal rules of evidence define hearsay:

Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or
hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in
the statement.

https://www.law.cornell.edu/rules/fre/rule_801

Note: *both* (1) and (2) have to be met. Ornato's statement, via Ms.
Hutchinson, meets (1) [Ornato is the 'declarant' of the statement], but it does
*not* meet (2), because Mr. Hutchinson was not offering it to prove the truth
regarding what Trump did.

What was the hero Ms. Hutchinson testifying to in the committee hearing? Was
she testify to:

1. What Trump did with the vehicle and the Secret Service agent; or
2. What Tony Ornato told her that Trump did

It was the latter, of course. She was testifying about what Ornato said, *not*
about what Trump did. Ms. Hutchinson's statement, which is about what Ornato
told her, was made in the hearing. Ms. Hutchinson testifying about what Ornato
said to her is not hearsay. Ornato's statement to Ms. Hutchinson cannot be used
by Ms. Hutchinson to testify about what Trump did, but she wasn't testifying to
that.

_Hearsay_:

Ms. Hutchinson: "Trump grabbed the steering wheel and then grabbed Engel's
neck."
Ms. Cheney: "How do you know that Trump did that?"
Ms. Hutchinson: "Tony Ornato told me."

_Not hearsay_:

[E. Holder]

On 11 Jul 2022, Rudy Canoza <notg...@gmail.com> posted some
news:KS3zK.454351$J0r9....@fx11.iad:

> Here is what it isn't: anything that the American zero Cassidy
> Hutchinson

said was 100% hearsay.

Next!

[Rudy Canoza]

On 7/11/2022 7:36 PM, Chadlee "cuck" Blowjob, 250lb 5'3" morbidly obese
convicted child molester and lying fat fuck, lied:

> On 11 Jul 2022, Rudy Canoza <notg...@gmail.com> posted some
> news:KS3zK.454351$J0r9....@fx11.iad:
>

> no hearsay.

Correct.