Hearsay Exceptions Availability of Declarant Immaterial

Rule 803 Hearsay exceptions: availability of declarant immaterial The following are not excluded by the hearsay rules, 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 conditi on, 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 con dition. 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 f act remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. (4) Statements for purposes of medical treatment or diagnosis. Statements made for purposes of medical treatment or diagnosis and desc ribing medical history, or past or present symptoms, pain, or sensations, or the inception or general

l treatment or diagnosis. Statements made for purposes of medical treatment or diagnosis and desc ribing 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 treatment or diagnosis. (5) Recorded recollection. A memorandum or r ecord concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memo ry and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not 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 w as the regular practice of that business activity to make the memorandum,

mation transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it w as 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 pre paration 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. (A) Foundation exemptions. A cust odian or other qualified witness, as required above, is unnecessary when the evidence offered under this provision consists of medical charts or records of a hospital that has elected to proceed under the provisions of KRS 422.300 to 422.330, business reco rds which satisfy the requirements of KRE 902(11), or some other record which is subject to a statutory exemption from normal foundation requirements. (B) Opinion. No evidence in the form of an opinion is admissible under this paragraph unless such opinio n would be admissible under Article VII of

tory exemption from normal foundation requirements. (B) Opinion. No evidence in the form of an opinion is admissible under this paragraph unless such opinio n would be admissible under Article VII of these rules if the person whose opinion is recorded were to testify to the opinion directly. (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, re cord, or other data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. (8) Public records and reports. Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or other data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as t o which there was

ations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as t o which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (A) Investigative reports by police and other law enforcemen t personnel; (B) Investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; and (C) Factual findings offered by the government in criminal cases. (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 or law. (10) Absence of public record or entry. To prove the a bsence 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

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 KRE 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, marriage s, divorces, deaths, legitimacy, ancestry, relationships 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. State ments 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 births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or

have been issued at the time of the act or within a reasonable time thereafter. (13) Family records. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of 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 intere st 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 re cord 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

t 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) State ments in ancient documents. Statements in a document in existence twenty (20) years or more the authenticity of which is established. (17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compi lations, 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 examinat ion, 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 judi cial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. (19) Reputation concerning personal or family history.

or by other expert testimony or by judi cial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. (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 boun daries 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 loc ated. (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 under the law defining the crime, to prove

ed 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 under the law defining the crime, to prove any fact essential to sustain the judgment, but not including, when offered by the prosecution in a criminal case for purposes other than impeachment, judgments against persons other than the accused. (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 judgme nt, if the same would be provable by evidence of reputation. Effective: July 15, 1994 History: Repealed, reenacted, and amended 1994 Ky. Acts ch. 279, sec. 5, effective July 15, 1994. – Enacted 1990 Ky. Acts ch. 88, sec. 58; amended 1992 Ky. Acts ch. 324, sec. 22; renumbered (7/1/92) pursuant to 1992 Ky. Acts ch. 324, sec. 34. Legislative Research Commission Note (12/12/94). Although subsection (12) of this statute was enacted with the phrase'authorized by the rules or practices or a religious organization ,' see 1990 Ky. Acts ch. 88, sec. 58, it is clear from context and from Fed. R. Evid.

(12) of this statute was enacted with the phrase'authorized by the rules or practices or a religious organization ,' see 1990 Ky. Acts ch. 88, sec. 58, it is clear from context and from Fed. R. Evid. 803(12) that this should read 'authorized by the rules or practices of a religious organization.' This phrase has been corrected pursuant to KRS 7.136(1)(h).