ARTICLE VIII. HEARSAY
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) Present Sense Impression. A statement describing or
explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter.
(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.
(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.
(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.
(5) Recorded Recollection. A memorandum or record concerning
a matter about which a witness once had knowledge but now has insufficient recollection to enable him or her to testify fully and
accurately, shown to have been made or adopted by the witness when
the matter was fresh in the witness' memory and to reflect that
knowledge correctly. If admitted, the memorandum or record may be
read into evidence but may not itself be received as an exhibit
unless offered by an adverse party.
(6) Records of Regularly Conducted Activity. A memorandum,
report, record, or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, 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, 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.
(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
(8) Public Records and Reports. 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
state in criminal cases, factual findings resulting from an
investigation made pursuant to authority granted by law, unless the
sources of information or other circumstances indicate lack of
(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.
(10) Absence of Public Record or Entry. To prove the absence
of a record, report, statement, or data compilation, in any form,
or the nonoccurrence or nonexistence of a matter of which a record,
report, statement, or data compilation, in any form, was regularly
made and preserved by a public office or agency, evidence in the
form of a certification in accordance with Rule 902, or testimony,
that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
(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.
(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.
(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 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 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.
(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.
(16) Statements in Ancient Documents. Statements in a
document in existence twenty years or more the authenticity of
which is established.
(17) Market Reports, Commercial Publications. Market
quotations, tabulations, lists, directories, or other published
compilations generally used and relied upon by the public or by
persons in particular occupations.
(18) Learned Treatises. To the extent called to the attention
of an expert witness upon cross-examination or relied upon by the
expert witness in direct examination, statements contained in
published treatises, periodicals, or pamphlets on a subject of
history, medicine, or other science or art, established as a
reliable authority by the testimony or admission of the witness or
by other expert testimony or by judicial notice. If admitted, the
statements may be read into evidence but may not be received as
(19) Reputation Concerning Personal or Family History.
Reputation among members of a person's family by blood, adoption,
or marriage, or among a person's associates, or in the community,
concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry,
or other similar fact of his personal or family history.
(20) Reputation Concerning Boundaries or General History.
Reputation in a community, arising before the controversy, as to
boundaries of or customs affecting lands in the community, and
reputation as to events of general history important to the
community or state or nation in which located.
(21) Reputation as to Character. Reputation of a person's
character among associates or in the community.
(22) Judgment of Previous Conviction. Evidence of a final
judgment, entered after a trial or upon a plea of guilty (but not
upon a plea of nolo contendere), adjudging a person guilty of a
crime punishable by death or imprisonment in excess of one year, to
prove any fact essential to sustain the judgment, but not
including, when offered by the state in a criminal prosecution for
purposes other than impeachment, judgments against persons other
than the accused. The pendency of an appeal may be shown but does
not affect admissibility.
(23) Judgment as to Personal, Family, or General History, or
Boundaries. Judgments as proof of matters of personal, family, or
general history, or boundaries, essential to the judgment, if the
same would be provable by evidence of reputation.
(24) Other Exceptions. A statement not specifically covered
by any of the foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point for
which it is offered than any other evidence which the proponent can
procure through reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will best be served by
admission of the statement into evidence. However, a statement may
not be admitted under this exception unless the proponent of it
makes known to the adverse party, sufficiently in advance of the
trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent's intention to
offer the statement and the particulars of it, including the name
and address of the declarant.
[Effective February 1, 1985; amended effective July 1, 1994.]