Even if the witness is available to testify, hearsay evidence may still be admissible under the following circumstances:

Present Sense Impressions and Excited Utterances —803(1) & (2)

United States v. Boyce

742 F.3d 792 (7th Cir. 2014).

The premise of the present sense impression is that a statement made at the time or shortly thereafter is admissible, even if coming through as hearsay, because the party making the statement has less time to fabricate the story, making the testimony more reliable.

Statements of Then-Existing Conditions—803(3)

Mutual Life Insurance Co. v. Hillmon

145 U.S. 283 (1892).

Hillmon attempted to claim a life insurance policy on her claimed deceased husband. However, the insurance policies attempted to show that Hillmon was not dead, but hiding, and the body presented was one of Walters. At trial, the defendant’s attempted to show letters written by Walters to show his intentions around the time of his disappearance. These were denied at trial, but should have been admitted according to the appellate court.

United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976). Adell disappeared at a restaurant. He told his friends and family that he was going to meet Angelo then come back, but he never did. Can the testimony of the friends be admitted as evidence against Angelo?

Shepard v. United States

290 U.S. 96 (1933).

Statements of Medical Diagnosis or Treatment—803(4)

State v. Smith

876 N.W.2d 180 (Iowa 2016).

A victim called 911 and was taken to the hospital to treat several injuries. At the hospital, she was asked by a nurse what happened and she recalled how her partner had caused the injuries. Later, the victim was unwilling to testify against Smith and recanted her identification of his as the perpetrator. Can the state admit the testimony of the nurse as a statement of medical diagnosis? To do so, the need of identity must be relevant to the diagnosis or treatment. The majority say the identity was not needed for the diagnosis or treatment (medication applied to all types of injuries irrespective of identity). However, the dissent argues that identity is significant, and believes that there should be a categorical rule admitting identification of perpetrators of domestic abuse.

State v. Reidhead, 146 Ariz. 314 (Ct. App. 1985). A doctor noticed a slap mark across a child’s face while treating for a broken arm. At trial, the doctor testified that the child told her he had been playing with his father’s records so the father twisted his arm. Is her testimony admissible?

Refreshing Memory and Recorded Recollections—803(5) & 612

Rathbun v. Brancatella, 93 N.J.L. 222 (1919). One bystander witnessed a hit and run and shouted out the license plate number. Another bystander wrote down the number as shouted for the purpose of recalling later. At trial, the second bystander could not recall the number and refreshment did not help. The first bystander had forgotten the number but could instantly recall once the number was shown. Should the number be admitted as evidence, when?

Johnson v. State

967 S.W.2d 410 (Tex. Crim. App. 1998).

Taylor was a surviving victim who went to the police to provide a statement about the murder of his friend. The statement incriminated Johnson, the defendant. At trial, the state put Taylor on the stand but Taylor could not recall the nature of his statement, even after it was read to him. This statement was then admitted at trial, despite objections that it was hearsay. On appeal, the court reversed saying the state had not laid the foundation enough to verify the truth of the statement.

Business Records—803(6) & (7)

Palmer v. Hoffman

318 U.S. 109 (1943).

Hoffman was involved in an accident, hit by a train and sued the railroad company for negligence. One of the train’s engineers filled out an accident report after the incident and testified in the report that nothing had been wrong. Before testifying, the entangler had died. This report was offered up at trial as a business record, but denied by the trial court as inadmissible hearsay. The Supreme Court affirmed and said that accident reports are not “in the regular course” of business (unlike payroll, accounts receivable, etc.). Instead, these reports give opportunity for a self-interested person the chance to lie, having every incentive to do so.

United States v. Vigneau

187 F.3d 70 (1st Cir. 1999).

Vigneau was convicted of money laundering because there were several money orders placed with his name, address, and number listed on it. These records could be admitted as business records as to the amount of money transferred, etc. but these could have been filed by anyone. So, it is inadmissible hearsay to use the money orders to identify Vigneau as the recipient of the money. Thus, the trial court errored in admitting the money orders as a business record.

Public Records and Reports—803(8) & (10)

Beech Aircraft Corp. v. Rainey

488 U.S. 153 (1988).

After a military training exercise occurred that resulted in a plane crash and deaths of the pilots, the spouses brought this action against the manufacturer. A report was conducted by an expert that outlined the most likely scenarios for the crash (pilot error being most likely with aircraft error still remaining a possibility). At trial, the court allowed the first statement (pilot error), but disallowed the second statement (aircraft error) because the first statement was a conclusion while the other was opinion. On appeal, neither statement was permitted. On further appeal to the Supreme Court, all the statements could be admitted if deemed trustworthy by the trial judge.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.