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Exceptions to the rule against hearsay · complete doctrine guide

Public records, learned treatises, character reputation, statements against interest, forfeiture, and rules on insurance, judges, jurors, and religion

This module gathers several hearsay exceptions alongside several unrelated exclusionary rules that share nothing but a tendency to appear together in the same exam questions. A public office's own record of its activities, or of a matter observed under a legal duty to report, or, outside a criminal case against the defendant, factual findings from a legally authorized investigation, is admissible unless the circumstances show a genuine lack of trustworthiness, and a statement in a learned treatise can come in once it is called to an expert's attention on cross-examination or relied on by the expert on direct, and the publication itself is established as a reliable authority. A statement against the declarants own interest is admissible from an unavailable declarant, and evidence of liability insurance cannot prove negligence though it remains admissible for another purpose, a juror generally cannot testify about the substance of deliberations, and a witnesss religious beliefs cannot be used to attack or support credibility.

TESTED STATUSCurrent MBE, MEE where applicable, and NextGen foundational doctrine
01 · COMPLETE FRAMEWORK

Black-letter propositions

  1. 01

    A record or statement of a public office is not excluded by the hearsay rule if it sets out the office's activities, a matter observed while under a legal duty to report but not, in a criminal case, a matter observed by law-enforcement personnel, or in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation, and the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

  2. 02

    A statement in a treatise, periodical, or pamphlet is admissible if it is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination and the publication is established as a reliable authority, and if admitted it may be read into evidence but not received as an exhibit.

  3. 03

    A reputation among a person's associates or in the community concerning the person's character is not excluded by the hearsay rule, whether or not the declarant is available.

  4. 04

    A statement is admissible as a statement against interest, if the declarant is unavailable, when a reasonable person in the declarant's position would have made it only if believing it true because it was so contrary to the declarant's proprietary or pecuniary interest or so tended to expose the declarant to civil or criminal liability.

  5. 05

    A statement against interest offered in a criminal case as one that tends to expose the declarant to criminal liability must be supported by corroborating circumstances that clearly indicate its trustworthiness.

  6. 06

    A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant's unavailability as a witness, and did so intending that result, is not excluded by the hearsay rule if the declarant is unavailable.

  7. 07

    Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully, but it may be admitted for another purpose, such as proving a witness's bias or agency, ownership, or control.

  8. 08

    The presiding judge may not testify as a witness at the trial, and a party need not object to preserve the issue.

  9. 09

    During an inquiry into the validity of a verdict, a juror may not testify about statements made or incidents during deliberations, the effect of anything on a juror's vote, or any juror's mental processes, but a juror may testify about extraneous prejudicial information, an outside influence, or a mistake in entering the verdict on the form.

  10. 10

    Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.

02 · ORDER OF ANALYSIS

Use this attack sequence under time

1

Frame the issue

Identify the exception or rule that fits the proffered statement or evidence.

2

Resolve the next checkpoint

For a public record, check the category and whether the opponent shows a lack of trustworthiness.

3

Resolve the next checkpoint

For a treatise, check the expert connection and the reliable-authority showing.

4

Resolve the next checkpoint

For a statement against interest, check unavailability and corroboration in a criminal case.

5

Finish the conclusion

For a juror or judge, apply the competency rules and their exceptions.

03 · DISTINCTIONS THAT CREATE POINTS

Common wrong turns

  • A police officer's observations are not admissible through the public-records exception against a defendant in a criminal case.
  • A treatise statement may be read to the jury but not handed over as an exhibit.
  • A statement against interest in a criminal case that exposes the declarant to liability needs corroboration.
  • A juror may testify about outside influence but not about what other jurors said in deliberations.
04 · WORKED APPLICATION

Worked example

After a verdict, a juror says she voted for guilt because another juror said the defendant had a prior record that was not in evidence. Another juror says the foreperson pressured him to change his vote during deliberations.

Model analysis

The first juror's account about extraneous prejudicial information is an allowed exception, but testimony about what jurors said in deliberations or about the pressure on a juror's vote is barred by Rule 606(b).

05 · CLOSED-BOOK RETRIEVAL

Practice this topic

06 · FROM THE PRIMARY TEXT

Records, treatises, and reputation

Rule 803(8) makes admissible a record or statement of a public office that sets out the office's activities, a matter observed while under a legal duty to report but not, in a criminal case, a matter observed by law-enforcement personnel, or, in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation, unless the opponent shows that the source of information or other circumstances indicate a lack of trustworthiness.

Rule 803(18) makes admissible a statement in a treatise, periodical, or pamphlet if it is called to the attention of an expert on cross-examination or relied on by the expert on direct and the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice, and it may be read into evidence but not received as an exhibit. Rule 803(21) makes admissible a reputation among a person's associates or in the community concerning the person's character.

07 · FROM THE PRIMARY TEXT

Unavailability exceptions

Rule 804(b)(3) makes admissible a statement that a reasonable person in the declarant's position would have made only if believing it to be true because it was so contrary to the declarant's proprietary or pecuniary interest or so tended to expose the declarant to civil or criminal liability, and, if offered in a criminal case as tending to expose the declarant to criminal liability, it must be supported by corroborating circumstances that clearly indicate its trustworthiness.

Rule 804(b)(6) makes admissible a statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant's unavailability as a witness, and did so intending that result.

08 · FROM THE PRIMARY TEXT

Insurance, judges, jurors, and religion

Rule 411 bars evidence that a person was or was not insured to prove negligence or wrongful conduct but allows it for another purpose such as proving bias, agency, ownership, or control. Rule 605 bars the presiding judge from testifying and excuses any objection, and Rule 610 bars evidence of religious beliefs or opinions to attack or support credibility.

Rule 606(b) bars a juror from testifying, in an inquiry into the validity of a verdict, about statements or incidents during deliberations, the effect of anything on a juror's vote, or a juror's mental processes, but allows testimony about extraneous prejudicial information, an outside influence, or a mistake in entering the verdict on the form.

09 · QUICK ANSWERS

Frequently asked questions

What is the controlling rule for public records, learned treatises, character reputation, statements against interest, forfeiture, and rules on insurance, judges, jurors, and religion?+

Identify the exception or rule, state its conditions, and apply them to the facts, noting who may testify and any required foundation.

Are police observations admissible as public records in a criminal case?+

Not when the officer is law-enforcement personnel and the matter was observed by that person, under Rule 803(8)(A)(ii).

Can a treatise be given to the jury as an exhibit?+

No, it may be read into evidence but not received as an exhibit, under Rule 803(18).

Does a statement against criminal interest need corroboration?+

Yes, when offered in a criminal case to expose the declarant to criminal liability, under Rule 804(b)(3)(B).

Can a party prove that the defendant has liability insurance to show negligence?+

No, but insurance can be offered for another purpose like bias or ownership, under Rule 411.

What can a juror testify to about a verdict?+

Extraneous information, outside influence, or a mistake in entering the verdict, but not deliberations, under Rule 606(b)(2).

SOURCE DESK

Primary sources

Federal Rules of Evidence, Rule 803 (exceptions to the rule against hearsay), Legal Information Institute, Cornell Law School↗Federal Rules of Evidence, Rule 804 (hearsay exceptions when the declarant is unavailable), Legal Information Institute, Cornell Law School↗Federal Rules of Evidence, Rule 411 (liability insurance), Legal Information Institute, Cornell Law School↗Federal Rules of Evidence, Rule 606 (juror's competency as a witness), Legal Information Institute, Cornell Law School↗Federal Rules of Evidence, Rule 610 (religious beliefs or opinions), Legal Information Institute, Cornell Law School↗

Governing text for public records, learned treatises, character reputation, statements against interest, forfeiture, and rules on insurance, judges, jurors, and religion

Federal Rules of Evidence (U.S. Courts) ↗