Hearsay Exceptions: Declarant Unavailable and Not Required: every key term you need (+ practice quiz)
25 flashcard terms for Evidence Topic 6, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
Exception under FRE 803(1) for a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. Contemporaneity is the guarantee of reliability; no excitement is required.
Excited Utterance
Exception under FRE 803(2) for a statement about a startling event made while the declarant was still under the stress of excitement it caused. Longer time gaps are tolerated than under the present sense impression exception if stress persists.
Then-Existing State of Mind
Exception under FRE 803(3) covering a declarant's contemporaneous motive, intent, plan, emotion, sensation, or physical condition. It admits present feelings and forward-looking intent, not narration of past events.
Hillmon Doctrine
Rule that a declarant's statement of present intent to do a future act is admissible as circumstantial proof the act was carried out. Courts split on whether it may also prove that a third person joined in the act.
Memory or Belief Bar
Limit inside FRE 803(3) excluding statements of memory or belief offered to prove the fact remembered or believed. Without it the exception would swallow the hearsay rule by admitting all backward-looking narration.
Statement for Medical Diagnosis or Treatment
Exception under FRE 803(4) for statements describing medical history, present symptoms, or the general cause of injury when reasonably pertinent to diagnosis or treatment, whether made to a treating or a consulting physician.
Recorded Recollection
Exception under FRE 803(5) for a record about a matter the witness once knew but now cannot recall well enough to testify fully, made or adopted when the memory was fresh and shown to reflect that knowledge accurately.
Refreshing Recollection
Technique under FRE 612 in which any item is shown to a witness to jog memory. The item is not evidence and need not be admissible; the testimony comes from restored memory rather than from the writing.
Business Records Exception
Exception under FRE 803(6) for records of a regularly conducted activity kept in the regular course, made at or near the time by or from a person with knowledge, subject to a trustworthiness challenge by the opponent.
Absence of a Business Record
Provision within FRE 803(7) allowing proof that a matter is missing from records regularly kept as evidence the event did not occur, subject to an objection that the circumstances lack trustworthiness.
Public Records Exception
Exception under FRE 803(8) for records of a public office setting out its activities, matters observed under a legal duty to report, or factual findings from an authorized investigation in civil cases and against the government.
Law Enforcement Limits in Criminal Cases
Restriction barring the prosecution from using matters observed by law enforcement personnel or investigative factual findings against a criminal defendant, though routine ministerial records are often still allowed.
Learned Treatises
Exception under FRE 803(18) admitting statements from reliable published authorities called to an expert's attention or relied upon, established as reliable by testimony or judicial notice. The passage is read, not admitted as an exhibit.
Reputation and Judgment Exceptions
Exceptions admitting community or family reputation about personal or family history, boundaries, general history, and character, plus a final felony judgment offered to prove a fact essential to that judgment.
Ancient Documents
Exception under FRE 803(16) for statements in an authenticated document prepared before January 1, 1998. The date cutoff replaced the older twenty-year rule to limit an influx of aged electronic material.
Unavailability Under FRE 804(a)
Threshold showing that a declarant is exempt on privilege grounds, refuses to testify despite court order, lacks memory, is dead or infirm, or is absent despite reasonable efforts to procure attendance or testimony.
Former Testimony
Exception under FRE 804(b)(1) for testimony given at an earlier trial, hearing, or deposition when the party against whom it is offered, or in civil cases a predecessor in interest, had a similar motive to develop it.
Predecessor in Interest
Civil-case concept extending former testimony to a party whose earlier litigant shared a similar motive and interest. Many courts read it functionally rather than requiring strict privity of legal relationship.
Dying Declaration
Exception under FRE 804(b)(2) for a statement about the cause or circumstances of impending death, made under a belief that death was imminent, available in homicide prosecutions and all civil actions.
Statement Against Interest
Exception under FRE 804(b)(3) for a statement so contrary to the declarant's proprietary, pecuniary, or penal interest that a reasonable person would not have made it unless believing it true.
Williamson v. United States
Decision holding that the against-interest exception reaches only the individually self-inculpatory remarks in a broader narrative, excluding collateral portions that shift blame to an accomplice.
Statement of Personal or Family History
Exception under FRE 804(b)(4) for a declarant's statements about their own birth, marriage, adoption, or similar facts, or about another person's history when the declarant was intimately connected to that family.
Forfeiture by Wrongdoing
Exception under FRE 804(b)(6) admitting a statement against a party who wrongfully caused, or acquiesced in causing, the declarant's unavailability, with the predicate usually proved by a preponderance to the judge.
Giles v. California
Decision requiring that the party have acted with the specific purpose of preventing the declarant from testifying, rejecting a rule that any wrongful killing automatically forfeits the objection.
Residual Exception
Catchall under FRE 807 admitting a statement not covered by another exception when it is supported by sufficient guarantees of trustworthiness and is more probative on the point than other reasonably obtainable evidence.