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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 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 treatment or diagnosis. Statements made
for purposes of medical treatment or diagnosis 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 treatment or diagnosis.
(5) Recorded recollection. A memorandum or record 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' memory 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 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.
(A) Foundation exemptions. A custodian 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 records 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
(7)
(8)
(9)
(10)
(11)
(12)
(13)
paragraph unless such opinion would be admissible under Article VII of
these rules if the person whose opinion is recorded were to testify to the
opinion directly.
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
other data compilation was regularly made and preserved, unless the sources
of information or other circumstances indicate lack of trustworthiness.
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 to 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 enforcement 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.
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.
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 KRE 902,
or testimony, that diligent search failed to disclose the record, report,
statement, or data compilation, or entry.
Records of religious organizations. Statements of births, marriages, 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.
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.
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 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 (20) 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 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 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 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 judgment, 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. 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).
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