Hearsay Exceptions: Availability of Declarant Immaterial — Rule 803

• Jurisdiction: Colorado

Hearsay Exceptions: Availability of Declarant Immaterial — Rule 803

SUMMARY OF RULE 803

• The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Spontaneous Present Sense Impression. A spontaneous statement describing or explaining an event or condition made while perceiving the event or condition.
(2) Excited Utterance. A statement relating to a startling event or condition made while under stress of excitement caused by the event or condition.
(3) Mental, Emotional, or Physical Condition. A statement as to an existing state of mind, emotion, sensation, or physical condition; it does not include a statement of memory or belief to prove the fact remembered or believed, unless it relates to execution, revocation, identification, or terms of the declarant's will.
(4) Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment, including medical history, past or present symptoms, pain or sensations, or general character of cause or external source as reasonably pertinent to diagnosis or treatment.
(5) Recorded Recollection. Where the witness once had knowledge and (A) can identify the memorandum or record, (B) adequately recalls the making of it by the witness or another at or near the time of the event, and (C) can testify to its accuracy. A memorandum or record may be read into evidence, but may not itself be received unless offered by an adverse party.

(6) Records of Regularly Conducted Activity. Made by a person with knowledge in the course of a regularly conducted business activity as part of a regular practice, as shown by the custodian, or certification under CRE 902(11) and 902(12), unless lack of trustworthiness.
(7) Absence of Entry in Records. Evidence that a matter is not included in records kept in the regular course of business, to prove the nonoccurrence or nonexistence of the matter, unless it is to show lack of trustworthiness.
(8) Public Records and Reports. Unless the source indicates lack of trustworthiness, records, reports, statements, or data compilations regarding activities of an office or agency, or matters observed pursuant to a duty imposed by law, excluding police reports in criminal cases and government investigations in civil cases.
(9) Records of Vital Statistics. Records of births, deaths, or marriages, if a report was made to a public office pursuant to requirements of the law.
(10) Absence of Public Record or Entry. To prove absence of record, report, statement, or data compilation, if such records were regularly made and preserved by a public office or agency, evidence that a diligent search failed to disclose the record, report, statement, data compilation, or entry.
(11) Records of Religious Organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or personal or family history contained in the regularly kept record of a religious organization.
(12) Marriage, Baptismal, and Similar Certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony if made by clergy, a public official, or another authorized person of a religious organization issued at the time of the act or within a reasonable time thereafter.

(13) Family Records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts or tombstones, or the like.
(14) Records of Documents Affecting Interest in Property. Must be a record of public office, and a statute authorizes the filing or recording of such documents. Includes an interest in personal property.
(15) Statements in Documents Affecting an Interest in Property. A statement purporting to establish or affect an interest in property if matter was relevant to purpose of the document, unless dealings with the property since have been inconsistent with the truth of statement or purport of the document.
(16) Statements in Ancient Documents. The document must exist 20 years or more and be authenticated.
(17) Market Reports; Commercial Publications. Generally used and relied on by the public or persons in particular occupations, such as market quotations, tabulations, lists, directories, or other published compilations.
(18) Learned Treatises. May be read into evidence and received as an exhibit to the extent called to the attention of an expert witness on cross-examination or relied on in direct examination, if established as a reliable authority by testimony, expert testimony, or judicial notice.
(19) Reputation Concerning Personal or Family History. A reputation among members of family by blood, adoption, or marriage, or among associates or community, concerning a person's birth, adoption, ancestry, or other similar fact of personal or family history.

(20) Reputation Concerning Boundaries or General History. A reputation arising before the controversy as to boundaries of or customs affecting lands, and a reputation as to general history important to the community, state, or nation where located.
(21) Reputation as to Character. Among associates or

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