FAQ - Hearsay Exceptions - Part One
There are two sets of exceptions to the hearsay rule. The first set apply whether the declarant (the person who made the statement) is available to testify or not. The second set apply only when the declarant is unavailable for some reason. We will discuss the first set in this blog post and the second set next week.
Louisiana Code of Evidence Article 803 lays out the exceptions to the hearsay rule regardless of the declarant’s availability:
Present sense impression - “a statement describing an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”
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.”
Then existing mental, emotional, or physical condition - “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition…offered to prove the declarant’s then existing condition or his future action.”
Some examples from the statute are: intent, plan, motive, design, mental feeling, pain, and bodily health.
Statements for purposes of medical treatment and medical diagnosis in connection with treatment - “Statements made for purposes of medical treatment and medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or in the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis in connection with treatment.”
Still subject to the healthcare provider-patient privilege discussed on our blog August 24.
Recorded recollection - “A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.”
Records of regularly conducted business activity - “A memorandum, report, record, or data compilation…of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation…”
Absence of entry in records of regularly conducted business activity - Evidence that a matter is not included in the records described in (6) to show that it did not happen.
Public records and reports
Records of vital statistics
Absence of public record or entry
Records of religious organizations - records of births, deaths, marriages, etc…
Marriage, baptismal, and similar certificates
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.”
Records of documents affecting an interest in property
Statements in documents affecting an interest in property
Statements in ancient documents - ancient in this case being 30 years or older and the authenticity of which is established
Market reports, commercial publications
Learned treatises
Reputation concerning personal or family history
Reputation concerning boundaries or general history
Reputation as to character
Judgment of previous conviction
Judgment as to personal, family, or general history, or boundaries
Testimony as to one’s own age
Any of the above documents or information is admissible even though it is hearsay and whether or not the declarant is present to testify about it.
If you have questions about a case and would like to set up a consult, give us a call at (318) 459-9111.