§803 Hearsay Exceptions: Availability of Declarant Immaterial

• Library: Evidence Restated Deskbook (2021 Ed.)

§803 Hearsay Exceptions: Availability of Declarant Immaterial

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. The statement must have sufficient indicia of trustworthiness to be admissible.

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

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 revocation of the declarant's will or the validity of a deed executed by the declarant who is deceased at the time of trial.

4. Statements made for purposes of medical diagnosis and treatment. A statement made by a patient that:

a. is made from the patient's own personal knowledge;

b. is made for—and is reasonably pertinent to—medical diagnosis and treatment;

c. is made to a treating physician or nurse for the physician's use in treating the patient, including statements contained in hospital records; and

d. 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 that the witness once knew about but now has no personal knowledge of or is uncertain about;

b. was made or adopted by the witness at or near in time to the matters recorded when the matter was fresh in the witness's memory; and

c. accurately reflects the witness's knowledge.

6. Business records. A record of an act, condition, or event made in the regular course of business, at or near the time of the act, condition, or event, unless, in the opinion of the court, the sources of information, method, and time of preparation were not such as to justify its admission.

7. Absence of entry in records kept in accordance with the provisions of Exception (6). Evidence that an act, condition, or event is not included in a business record qualified in accordance with the provisions of Exception (6) to prove that the act, condition, or event did not occur if the act, condition, or event was of a kind of which a record would be made in the regular course of business unless, in the opinion of the court, the sources of information, method, and time of preparation were not such as to justify its admission.

8. Public records. Matters contained in a public record:

a. when a statute creates a hearsay exception for the public record; or

b. when it is:

i. a record kept or prepared by a person whose duty it is to record the facts stated in the document; or

ii. a record of facts filed with a governmental body as required by statute, ordinance, rule, or regulation.

9. Vital records. Statements based on personal knowledge required in certificates or reports of birth, death, marriage, and dissolution of marriage filed in accordance with the Uniform Vital Statistics Law, §§ 193.005–193.325, RSMo 2016 and Supp. 2019.

10. Absence of entry in a public record. Evidence that a matter is not included in a public record to prove the nonoccurrence or nonexistence of the matter if the matter was of a kind that a record about it would be kept.

11. Records of religious organizations. A register that is required to be kept by the ordinance or custom of any religious society or congregation of marriages, births, baptisms, deaths, or interments.

12. Marriage certificates. A marriage certificate delivered to the parties to the marriage by the person solemnizing the marriage under Chapter 451, RSMo, setting forth, under § 451.110, RSMo 2016, the names and residence of the parties, the date of the marriage, the county from which the license was issued, and the date of issuance.

13. Family records. Statements of fact concerning personal or family history contained in family records or engraved on crypts or tombstones.

14. Record of document affecting an interest in property. A record of a writing in the office of the recorder of deeds purporting to affect real estate to prove its execution, genuineness, and time of record if (a) the interest has been claimed or enjoyed by a person by or through the writing for ten consecutive years; and (b) the record was made at least ten years before the writing is offered into evidence.

15. Statements in documents affecting an interest in real property. Various statutes provide for the admission into evidence of documents affecting an interest in real property. Recitals in the documents that are necessary to convey or affect an interest in real estate are not within the definition of hearsay. But recitals that are not necessary to convey or affect an interest in real estate are hearsay and inadmissible absent a statutory or common law hearsay exception covering them.

16. Statements in ancient documents. Statements in a document in existence 30 years or more that has been authenticated as an ancient document. But statements in a dispositive ancient document that are unnecessary to convey or affect an interest in real estate are not within the exception.

17. Professional and business handbooks; market reports:

a. Professional and business handbooks. Professional and business handbooks, such as trade journals, commercial and professional lists, registers, reports, business directories, and the like, provided a preliminary foundation is laid showing that the publication sought to be admitted:

i. is based on a reliable source of information; or

ii. has been regularly prepared for the use of the trade or profession and is generally regarded as trustworthy and relied upon.

b. Market reports of price or value of goods. The prevailing price or value of goods regularly bought and sold in any established commodity market as reported in official publications or trade journals or in newspapers or periodicals of general circulation published as the reports of such market.

18. Statements in learned treatises (exception not recognized in Missouri).

19. Reputation concerning family history or marriage:

a. Reputation concerning family history. Reputation among members of one's family derived from declarations of deceased or otherwise unavailable members of the family that were made ante litem motam or before there was a motive to falsify concerning matters such as a marriage, a birth, a death, or any other fact in reference to family lineage or pedigree.

b. Reputation in the community concerning marriage. A couple's repute in the community among persons who have come in contact with them concerning their marriage.

20. Community reputation pertaining to an ancient matter of public or general interest. Community reputation relating to an ancient matter of public or general interest, provided that the assertion is made by a person now deceased who was in a position to have acquired adequate knowledge concerning the matter that was made ante litem motam or before there was a motive to falsify.

21. Reputation as to character. Reputation of a person's character among the person's associates or in the community.

22. Judgment of previous conviction. Evidence of a criminal conviction in a subsequent civil suit to preclude the convicted defendant from re-litigating issues that had been decided in the criminal action, provided it would not be inequitable to do so.

23. Judgment as to personal, family, or general history or boundaries (exception not recognized in Missouri).

24. A statement of a child or vulnerable person relating to certain criminal offenses.

a. In criminal, child protection, or juvenile court proceedings. A statement made by a child under the age of 14 years or vulnerable person:

i. relating to an offense under Chapter 565, RSMo (offenses against the person); Chapter 566, RSMo (sexual offenses); Chapter 568, RSMo (offenses against the family); or Chapter 573, RSMo (pornography and related offenses);

ii. in criminal proceedings; or

iii. with respect to statements of a child under the age of 14, in hearings for child protection orders; or

iv. with respect to statements of a child, in juvenile court proceedings,

provided that:

i. the court finds in a hearing that the time, content, and circumstances of the statement provide sufficient indicia of reliability;

ii. the child or vulnerable person testifies at the proceeding or is unavailable as a witness; and

iii. the prosecuting attorney informs the accused or the accused's counsel of an intention to offer the statement and the particulars of it sufficiently in advance of the proceedings to provide the accused or the accused's counsel with a fair opportunity to meet the statement.

Pretrial recorded statements of the child are admissible if the recording is ordered by the court under § 491.680, RSMo 2016, or recorded under § 492.304, RSMo 2016.

b. In civil proceedings concerning sexual, emotional, or physical abuse (the PKA exception). A statement of a child in civil, nonjury proceedings concerning allegations of sexual, emotional, or physical abuse. See In re marriage of P.K.A., 725 S.W.2d 78 (Mo. App. S.D. 1987).

25. A report of an "investigation and social study" in a termination of parental rights proceeding. An investigation and social study report in a termination-of-parental-rights proceeding on the issue of the best interests of the child after a determination by the court that one or more of the statutory grounds for termination exist.

26. An expert's report on the result of a blood test in a

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