Rule 803 HEARSAY EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL

JurisdictionColorado

Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial

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 the declarant was perceiving the event or condition.

COMMITTEE COMMENT

The change reflected above was based on the fact that neither immediacy nor spontaneity would be guaranteed by the Federal rule. Colorado case law requires that a present sense impression be instinctive and spontaneous in order to be admissible. See Denver City Tramway Co. v. Brumley, 51 Colo. 251, 116 P. 1051 (1911). It was felt that the requirements set forth in that opinion constitute a greater guarantee of trustworthiness than the Federal rule, i.e., spontaneity is the most important factor governing trustworthiness. This is especially true when there is no provision that the declarant be unavailable as a witness.

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(Federal Rule Identical.)

(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

(Federal Rule Identical.)

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(Federal Rule Identical.)

COMMITTEE COMMENT

See: Houser v. Eckhardt, 168 Colo. 226, 450 P.2d 664 (1969); Ingles v. People, 90 Colo. 51, 6 P.2d 455 (1931); and § 8-53-103(2)(a) & (b), C.R.S. (Workmen's Compensation Act of Colorado).

(5) Recorded recollection. A past recollection recorded when it appears that the witness once had knowledge concerning the matter and; (A) can identify the memorandum or record, (B) adequately recalls the making of it at or near the time of the event, either as recorded by the witness or by another, and (C) can testify to its accuracy. The memorandum or record may be read into evidence but may not itself be received unless offered by an adverse party.

COMMITTEE COMMENT

The change reflected above was made because the Federal rule is more restrictive than the Colorado rule, which does not require absence of a present recollection to be expressly shown as a preliminary to use of recorded recollection. Jordan v. People, 151 Colo. 133, 376 P.2d 699 (1962).

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(Federal Rule Identical.)

COMMITTEE COMMENT

The rule makes no reference to any objective standard of trustworthiness, e.g., regularity with which records are kept. See Colorado cases: Patterson v. Pitoniak, 173 Colo. 454, 480 P.2d 579 (1971); Moseley v. Smith, 170 Colo. 177, 460 P.2d 222 (1969); Seib v. Standley, 164 Colo. 394, 435 P.2d 395 (1967); Rocky Mountain Beverage v. Walter Brewing Company, 107 Colo. 63, 108 P.2d 885 (1941); Hobbs v. Breen, 74 Colo. 277, 220 P. 997 (1923); Powell v. Brady, 30 Colo. App. 406, 496 P.2d 328 (1972).

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

(Federal Rule Identical.)

(8) Public records and reports. Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law.

(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(Federal Rule Identical.)

COMMITTEE COMMENT

This rule is somewhat broader than the provisions of § 25-2-117, C.R.S., and respecting marriage records is desirable because the evidentiary use of the book of marriages provided in § 90-1-20, C.R.S. 1963, was repealed in 1973.

(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.

COMMITTEE COMMENT

The Committee recommended adoption of this amended version of C.R.E. 803(10) to follow the identical amendment to F.R.E. 803(10) which took effect on December 1, 2013.

(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(Federal Rule Identical.)

(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(Federal Rule Identical.)

(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.

(Federal Rule Identical.)

COMMITTEE COMMENT

The age of the record or regularity of keeping are immaterial to admissibility. The content of fact is not limited to pedigree or genealogy.

(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded or filed document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

COMMITTEE COMMENT

The generic term "property" used in the Federal rule indicates an intent that the rule apply to documents relating to interests in both real property and personal property. The term "filed" has been added to render the rule applicable to personal property under Colorado law: the Uniform Commercial Code, the Colorado Rules of Civil Procedure, and § 30-10-103, C.R.S., all refer to "filing" documents affecting an interest in personal property.

(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(Federal Rule Identical.)

COMMITTEE COMMENT

The rule extends admissibility beyond case law and statutes. E.g., McClure v. Board of Commissioners of La Plata County, 19 Colo. 122, 34 P. 763 (1893); Wright v. People in the Interest of Rowe, 131 Colo. 92, 279 P.2d 676 (1955); Michael v. John Hancock Mutual Life Insurance Co., 138 Colo. 450, 334 P.2d 1090 (1959). Statutes more restrictive than the rule are §§ 38-35-102, 38-35 104, 38-35-105, 38-35-107, and 38-35-108, C.R.S.

(16) Statements in ancient documents. A statement in a...

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