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  • Brian Foley

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

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law.


Today we are continuing the exceptions to the rule against hearsay found in Rule 803. These are the exceptions that apply regardless of whether the person who made the statement is available as a witness.


Today we will be covering Exceptions 8-17 as most of these are fairly straight forward.


Subsection 8 is the exception for Public Records. - If the public record sets out the office's activities about a matter observed while under a legal duty to report or in a civil case against the government in a criminal case, factual findings from legally authorized investigation; and the opponent fails to demonstrate that the source of the information or other circumstances indicate a lack of trustworthiness.


The most important part of Subsection 8 to understand is that there is no exception for police offense reports or other documents that in a criminal case is related to a matter observed by law enforcement.


Subsection 9 covers Public Records of Vital Statistics including birth, death, and marriage certificates.


Subsection 10 covers the Absence of a Public Record. This exception allows you to ask a clerk or other government entity to produce a letter indicating that the record you are searching for doesn't exist. This document can be used to prove that the information isn't stored or the record or statement doesn't exist.


Subsection 11 allows statements 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.


Subsection 12 allows a statement of fat contained in a certificate related to marriage baptism and similar ceremonies.


Subsection 13 allows for family records such as personal or family history contained in a bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.


Subsection 14 allows public office kept records that affect an interest in property when a separate statute authorizes recording documents of that kind in that office.


Subsection 15 allows for statements in documents related to property and its really that straightforward.


Subsection 16 allows for statements in documents that are at least 20 years old and whose authenticity is established. This is known as the Ancient Documents Rule. This rule is related to Rule 901(b)(8) which controls the authentication.


901(b)(8) provides - 8) For a document or data compilation, evidence that it:

(A) is in a condition that creates no suspicion about its authenticity;

(B) was in a place where, if authentic, it would likely be; and

(C) is at least 20 years old when offered.


This is most likely to occur with old letters from relatives in estate planning and wills and trusts litigation.


Subsection 17 allows market reports like the Dow Jones and stock or other commodity listings to be admitted if they are authenticated.





Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:


(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.


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


(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.


(4) Statement Made for Medical Diagnosis or Treatment. A statement that: (A) is made for—and is reasonably pertinent to—medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.


(5) Recorded Recollection. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge, unless the circumstances of the record’s preparation cast doubt on its trustworthiness. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.


(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by—or from information transmitted by—someone with knowledge; (B) the record was kept in the course of a regularly conducted business activity; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by an affidavit or unsworn declaration that complies with Rule 902(10); and (E) the opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. “Business” as used in this paragraph includes every kind of regular organized activity whether conducted for profit or not.


(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if: (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) the opponent fails to show that the possible source of the information or other circumstances indicate a lack of trustworthiness.


(8) Public Records. A record or statement of a public office if: (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness.


(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.


(10) Absence of a Public Record. Testimony—or a certification under Rule 902—that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that: (A) the record or statement does not exist; or (B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.


(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.


(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate: (A) made by a person who is authorized by a religious organization or by law to perform the act certified; (B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and (C) purporting to have been issued at the time of the act or within a reasonable time after it.


(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.


(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if: (A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it; (B) the record is kept in a public office; and (C) a statute authorizes recording documents of that kind in that office.


(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose—unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.


(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established.


(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.


(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if: (A) the statement is called to the attention of an expert witness on cross examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit.


(19) Reputation Concerning Personal or Family History. A reputation among a person’s family by blood, adoption, or marriage—or among a person’s associates or in the community—concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.


(20) Reputation Concerning Boundaries or General History. A reputation in a community—arising before the controversy—concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.


(21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.


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


(23) Judgments Involving Personal, Family, or General History or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter: (A) was essential to the judgment; and (B) could be proved by evidence of reputation.


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


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