Notes of Advisory Committee on Proposed Rules IN RE: Human Bone

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The exceptions are phrased in terms of nonapplication of the hearsay
rule, rather than in positive terms of admissibility, in order to
repel any implication that other possible grounds for exclusion are
eliminated from consideration.

The present rule proceeds upon the theory that under appropriate
circumstances a hearsay statement may possess circumstantial
guarantees of trustworthiness sufficient to justify nonproduction of
the declarant in person at the trial even though he may be available.
The theory finds vast support in the many exceptions to the hearsay
rule developed by the common law in which unavailability of the
declarant is not a relevant factor. The present rule is a synthesis of
them, with revision where modern developments and conditions are
believed to make that course appropriate.

In a hearsay situation, the declarant is, of course, a witness, and
neither this rule nor Rule 804 dispenses with the requirement of
firsthand knowledge. It may appear from his statement or be inferable
from circumstances.

See Rule 602.

Exceptions (1) and (2). In considerable measure these two examples
overlap, though based on somewhat different theories. The most
significant practical difference will lie in the time lapse allowable
between event and statement.

The underlying theory of Exception [paragraph] (1) is that substantial
contemporaneity of event and statement negative the likelihood of
deliberate of conscious misrepresentation. Moreover, if the witness is
the declarant, he may be examined on the statement. If the witness is
not the declarant, he may be examined as to the circumstances as an
aid in evaluating the statement. Morgan, Basic Problems of Evidence
340–341 (1962).

The theory of Exception [paragraph] (2) is simply that circumstances
may produce a condition of excitement which temporarily stills the
capacity of reflection and produces utterances free of conscious
fabrication. 6 Wigmore §1747, p. 135. Spontaneity is the key factor in
each instance, though arrived at by somewhat different routes. Both
are needed in order to avoid needless niggling.

While the theory of Exception [paragraph] (2) has been criticized on
the ground that excitement impairs accuracy of observation as well as
eliminating conscious fabrication, Hutchins and Slesinger, Some
Observations on the Law of Evidence: Spontaneous Exclamations, 28
Colum.L.Rev. 432 (1928), it finds support in cases without number. See
cases in 6 Wigmore §1750; Annot., 53 A.L.R.2d 1245 (statements as to
cause of or responsibility for motor vehicle accident); Annot., 4
A.L.R.3d 149 (accusatory statements by homicide victims). Since
unexciting events are less likely to evoke comment, decisions
involving Exception [paragraph] (1) are far less numerous.
Illustrative are Tampa Elec. Co. v. Getrost, 151 Fla. 558, 10 So.2d 83
(1942); Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474
(1942); and cases cited in McCormick §273, p. 585, n. 4.

With respect to the time element, Exception [paragraph] (1) recognizes
that in many, if not most, instances precise contemporaneity is not
possible, and hence a slight lapse is allowable. Under Exception
[paragraph] (2) the standard of measurement is the duration of the
state of excitement. "How long can excitement prevail? Obviously there
are no pat answers and the character of the transaction or event will
largely determine the significance of the time factor." Slough,
Spontaneous Statements and State of Mind, 46 Iowa L.Rev. 224, 243
(1961); McCormick §272, p. 580.

Participation by the declarant is not required: a nonparticipant may
be moved to describe what he perceives, and one may be startled by an
event in which he is not an actor. Slough, supra; McCormick, supra; 6
Wigmore §1755; Annot., 78 A.L.R.2d 300.

Whether proof of the startling event may be made by the statement
itself is largely an academic question, since in most cases there is
present at least circumstantial evidence that something of a startling
nature must have occurred. For cases in which the evidence consists of
the condition of the declarant (injuries, state of shock), see
Insurance Co. v. Mosely, 75 U.S. (8 Wall.), 397, 19 L.Ed. 437 (1869);
Wheeler v. United States, 93 U.S.A.App. D.C. 159, 211 F.2d 19 (1953);
cert. denied 347 U.S. 1019, 74 S.Ct. 876, 98 L.Ed. 1140; Wetherbee v.
Safety Casualty Co., 219 F.2d 274 (5th Cir. 1955); Lampe v. United
States, 97 U.S.App.D.C. 160, 229 F.2d 43 (1956). Nevertheless, on
occasion the only evidence may be the content of the statement itself,
and rulings that it may be sufficient are described as "increasing,"
Slough, supra at 246, and as the "prevailing practice," McCormick
§272, p. 579. Illustrative are Armour & Co. v. Industrial Commission,
78 Colo. 569, 243 P. 546 (1926); Young v. Stewart, 191 N.C. 297, 131
S.E. 735 (1926). Moreover, under Rule 104(a) the judge is not limited
by the hearsay rule in passing upon preliminary questions of fact.

Proof of declarant's perception by his statement presents similar
considerations when declarant is identified. People v. Poland, 22
Ill.2d 175, 174 N.E.2d 804 (1961). However, when declarant is an
unidentified bystander, the cases indicate hesitancy in upholding the
statement alone as sufficient, Garrett v. Howden, 73 N.M. 307, 387
P.2d 874 (1963); Beck v. Dye, 200 Wash. 1, 92 P.2d 1113 (1939), a
result which would under appropriate circumstances be consistent with
the rule.

Permissible subject matter of the statement is limited under Exception
[paragraph] (1) to description or explanation of the event or
condition, the assumption being that spontaneity, in the absence of a
startling event, may extend no farther. In Exception [paragraph] (2),
however, the statement need only "relate" to the startling event or
condition, thus affording a broader scope of subject matter coverage.
6 Wigmore §§1750, 1754. See Sanitary Grocery Co. v. Snead, 67 App.D.C.
129, 90 F.2d 374 (1937), slip-and-fall case sustaining admissibility
of clerk's statement, "That has been on the floor for a couple of
hours," and Murphy Auto Parts Co., Inc. v. Ball, 101 U.S.App.D.C. 416,
249 F.2d 508 (1957), upholding admission, on issue of driver's agency,
of his statement that he had to call on a customer and was in a hurry
to get home. Quick, Hearsay, Excitement, Necessity and the Uniform
Rules: A Reappraisal of Rule 63(4), 6 Wayne L.Rev. 204, 206–209
(1960).

Similar provisions are found in Uniform Rule 63(4)(a) and (b);
California Evidence Code §1240 (as to Exception (2) only); Kansas Code
of Civil Procedure §60–460(d)(1) and (2); New Jersey Evidence Rule
63(4).

Exception (3) is essentially a specialized application of Exception
[paragraph] (1), presented separately to enhance its usefulness and
accessibility. See McCormick §§265, 268.

The exclusion of "statements of memory or belief to prove the fact
remembered or believed" is necessary to avoid the virtual destruction
of the hearsay rule which would otherwise result from allowing state
of mind, provable by a hearsay statement, to serve as the basis for an
inference of the happening of the event which produced the state of
mind). Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed.
196 (1933); Maguire, The Hillmon Case—Thirty-three Years After, 38
Harv.L.Rev. 709, 719–731 (1925); Hinton, States of Mind and the
Hearsay Rule, 1 U.Chi.L.Rev. 394, 421–423 (1934). The rule of Mutual
Life Ins. Co. v. Hillman, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706
(1892), allowing evidence of intention as tending to prove the doing
of the act intended, is of course, left undisturbed.

The carving out, from the exclusion mentioned in the preceding
paragraph, of declarations relating to the execution, revocation,
identification, or terms of declarant's will represents an ad hoc
judgment which finds ample reinforcement in the decisions, resting on
practical grounds of necessity and expediency rather than logic.
McCormick §271, pp. 577–578; Annot., 34 A.L.R.2d 588, 62 A.L.R.2d 855.
A similar recognition of the need for and practical value of this kind
of evidence is found in California Evidence Code §1260.

Exception (4). Even those few jurisdictions which have shied away from
generally admitting statements of present condition have allowed them
if made to a physician for purposes of diagnosis and treatment in view
of the patient's strong motivation to be truthful. McCormick §266, p.
563. The same guarantee of trustworthiness extends to statements of
past conditions and medical history, made for purposes of diagnosis or
treatment. It also extends to statements as to causation, reasonably
pertinent to the same purposes, in accord with the current trend,
Shell Oil Co. v. Industrial Commission, 2 Ill.2d 590, 119 N.E.2d 224
(1954); McCormick §266, p. 564; New Jersey Evidence Rule 63(12)(c).
Statements as to fault would not ordinarily qualify under this latter
language. Thus a patient's statement that he was struck by an
automobile would qualify but not his statement that the car was driven
through a red light. Under the exception the statement need not have
been made to a physician. Statements to hospital attendants, ambulance
drivers, or even members of the family might be included.

Conventional doctrine has excluded from the hearsay exception, as not
within its guarantee of truthfulness, statements to a physician
consulted only for the purpose of enabling him to testify. While these
statements were not admissible as substantive evidence, the expert was
allowed to state the basis of his opinion, including statements of
this kind. The distinction thus called for was one most unlikely to be
made by juries. The rule accordingly rejects the limitation. This
position is consistent with the provision of Rule 703 that the facts
on which expert testimony is based need not be admissible in evidence
if of a kind ordinarily relied upon by experts in the field.

Exception (5). A hearsay exception for recorded recollection is
generally recognized and has been described as having "long been
favored by the federal and practically all the state courts that have
had occasion to decide the question." United States v. Kelly, 349 F.2d
720, 770 (2d Cir. 1965), citing numerous cases and sustaining the
exception against a claimed denial of the right of confrontation. Many
additional cases are cited in Annot., 82 A.L.R.2d 473, 520. The
guarantee of trustworthiness is found in the reliability inherent in a
record made while events were still fresh in mind and accurately
reflecting them. Owens v. State, 67 Md. 307, 316, 10 A. 210, 212
(1887).

The principal controversy attending the exception has centered, not
upon the propriety of the exception itself, but upon the question
whether a preliminary requirement of impaired memory on the part of
the witness should be imposed. The authorities are divided. If regard
be had only to the accuracy of the evidence, admittedly impairment of
the memory of the witness adds nothing to it and should not be
required. McCormick §277, p. 593; 3 Wigmore §738, p. 76; Jordan v.
People, 151 Colo. 133, 376 P.2d 699 (1962), cert. denied 373 U.S. 944,
83 S.Ct. 1553, 10 L.Ed.2d 699; Hall v. State, 223 Md. 158, 162 A.2d
751 (1960); State v. Bindhammer, 44 N.J. 372, 209 A.2d 124 (1965).
Nevertheless, the absence of the requirement, it is believed, would
encourage the use of statements carefully prepared for purposes of
litigation under the supervision of attorneys, investigators, or claim
adjusters. Hence the example includes a requirement that the witness
not have "sufficient recollection to enable him to testify fully and
accurately." To the same effect are California Evidence Code §1237 and
New Jersey Rule 63(1)(b), and this has been the position of the
federal courts. Vicksburg & Meridian R.R. v. O'Brien, 119 U.S. 99, 7
S.Ct. 118, 30 L.Ed. 299 (1886); Ahern v. Webb, 268 F.2d 45 (10th Cir.
1959); and see N.L.R.B. v. Hudson Pulp and Paper Corp., 273 F.2d 660,
665 (5th Cir. 1960); N.L.R.B. v. Federal Dairy Co., 297 F.2d 487 (1st
Cir. 1962). But cf. United States v. Adams, 385 F.2d 548 (2d Cir.
1967).

No attempt is made in the exception to spell out the method of
establishing the initial knowledge or the contemporaneity and accuracy
of the record, leaving them to be dealt with as the circumstances of
the particular case might indicate. Multiple person involvement in the
process of observing and recording, as in Rathbun v. Brancatella, 93
N.J.L. 222, 107 A. 279 (1919), is entirely consistent with the
exception.

Locating the exception at this place in the scheme of the rules is a
matter of choice. There were two other possibilities. The first was to
regard the statement as one of the group of prior statements of a
testifying witness which are excluded entirely from the category of
hearsay by Rule 801(d)(1). That category, however, requires that
declarant be "subject to cross-examination," as to which the impaired
memory aspect of the exception raises doubts. The other possibility
was to include the exception among those covered by Rule 804. Since
unavailability is required by that rule and lack of memory is listed
as a species of unavailability by the definition of the term in Rule
804(a)(3), that treatment at first impression would seem appropriate.
The fact is, however, that the unavailability requirement of the
exception is of a limited and peculiar nature. Accordingly, the
exception is located at this point rather than in the context of a
rule where unavailability is conceived of more broadly.

Exception (6) represents an area which has received much attention
from those seeking to improve the law of evidence. The Commonwealth
Fund Act was the result of a study completed in 1927 by a
distinguished committee under the chairmanship of Professor Morgan.
Morgan et al., The Law of Evidence: Some Proposals for its Reform 63
(1927). With changes too minor to mention, it was adopted by Congress
in 1936 as the rule for federal courts. 28 U.S.C. §1732. A number of
states took similar action. The Commissioners on Uniform State Laws in
1936 promulgated the Uniform Business Records as Evidence Act, 9A
U.L.A. 506, which has acquired a substantial following in the states.
Model Code Rule 514 and Uniform Rule 63(13) also deal with the
subject. Difference of varying degrees of importance exist among these
various treatments.

These reform efforts were largely within the context of business and
commercial records, as the kind usually encountered, and concentrated
considerable attention upon relaxing the requirement of producing as
witnesses, or accounting for the nonproduction of, all participants in
the process of gathering, transmitting, and recording information
which the common law had evolved as a burdensome and crippling aspect
of using records of this type. In their areas of primary emphasis on
witnesses to be called and the general admissibility of ordinary
business and commercial records, the Commonwealth Fund Act and the
Uniform Act appear to have worked well. The exception seeks to
preserve their advantages.

On the subject of what witnesses must be called, the Commonwealth Fund
Act eliminated the common law requirement of calling or accounting for
all participants by failing to mention it. United States v. Mortimer,
118 F.2d 266 (2d Cir. 1941); La Porte v. United States, 300 F.2d 878
(9th Cir. 1962); McCormick §290, p. 608. Model Code Rule 514 and
Uniform Rule 63(13) did likewise. The Uniform Act, however, abolished
the common law requirement in express terms, providing that the
requisite foundation testimony might be furnished by "the custodian or
other qualified witness." Uniform Business Records as Evidence Act,
§2; 9A U.L.A. 506. The exception follows the Uniform Act in this
respect.

The element of unusual reliability of business records is said
variously to be supplied by systematic checking, by regularity and
continuity which produce habits of precision, by actual experience of
business in relying upon them, or by a duty to make an accurate record
as part of a continuing job or occupation. McCormick §§281, 286, 287;
Laughlin, Business Entries and the Like, 46 Iowa L.Rev. 276 (1961).
The model statutes and rules have sought to capture these factors and
to extend their impact by employing the phrase "regular course of
business," in conjunction with a definition of "business" far broader
than its ordinarily accepted meaning. The result is a tendency unduly
to emphasize a requirement of routineness and repetitiveness and an
insistence that other types of records be squeezed into the fact
patterns which give rise to traditional business records. The rule
therefore adopts the phrase "the course of a regularly conducted
activity" as capturing the essential basis of the hearsay exception as
it has evolved and the essential element which can be abstracted from
the various specifications of what is a "business."

Amplification of the kinds of activities producing admissible records
has given rise to problems which conventional business records by
their nature avoid. They are problems of the source of the recorded
information, of entries in opinion form, of motivation, and of
involvement as participant in the matters recorded.

Sources of information presented no substantial problem with ordinary
business records. All participants, including the observer or
participant furnishing the information to be recorded, were acting
routinely, under a duty of accuracy, with employer reliance on the
result, or in short "in the regular course of business." If, however,
the supplier of the information does not act in the regular course, an
essential link is broken; the assurance of accuracy does not extend to
the information itself, and the fact that it may be recorded with
scrupulous accuracy is of no avail. An illustration is the police
report incorporating information obtained from a bystander: the
officer qualifies as acting in the regular course but the informant
does not. The leading case, Johnson v. Lutz, 253 N.Y. 124, 170 N.E.
517 (1930), held that a report thus prepared was inadmissible. Most of
the authorities have agreed with the decision. Gencarella v. Fyfe, 171
F.2d 419 (1st Cir. 1948); Gordon v. Robinson, 210 F.2d 192 (3d Cir.
1954); Standard Oil Co. of California v. Moore, 251 F.2d 188, 214 (9th
Cir. 1957), cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148;
Yates v. Bair Transport, Inc., 249 F.Supp. 681 (S.D.N.Y. 1965);
Annot., 69 A.L.R.2d 1148. Cf. Hawkins v. Gorea Motor Express, Inc.,
360 F.2d 933 (2d Cir 1966). Contra, 5 Wigmore §1530a, n. 1, pp.
391–392. The point is not dealt with specifically in the Commonwealth
Fund Act, the Uniform Act, or Uniform Rule 63(13). However, Model Code
Rule 514 contains the requirement "that it was the regular course of
that business for one with personal knowledge * * * to make such a
memorandum or record or to transmit information thereof to be included
in such a memorandum or record * * *." The rule follows this lead in
requiring an informant with knowledge acting in the course of the
regularly conducted activity.

Entries in the form of opinions were not encountered in traditional
business records in view of the purely factual nature of the items
recorded, but they are now commonly encountered with respect to
medical diagnoses, prognoses, and test results, as well as
occasionally in other areas. The Commonwealth Fund Act provided only
for records of an "act, transaction, occurrence, or event," while the
Uniform Act, Model Code Rule 514, and Uniform Rule 63(13) merely added
the ambiguous term "condition." The limited phrasing of the
Commonwealth Fund Act, 28 U.S.C. §1732, may account for the reluctance
of some federal decisions to admit diagnostic entries. New York Life
Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297 (1945); Lyles v.
United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957), cert. denied
356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067; England v. United States,
174 F.2d 466 (5th Cir. 1949); Skogen v. Dow Chemical Co., 375 F.2d 692
(8th Cir. 1967). Other federal decisions, however, experienced no
difficulty in freely admitting diagnostic entries. Reed v. Order of
United Commercial Travelers, 123 F.2d 252 (2d Cir. 1941);
Buckminster's Estate v. Commissioner of Internal Revenue, 147 F.2d 331
(2d Cir. 1944); Medina v. Erickson, 226 F.2d 475 (9th Cir. 1955);
Thomas v. Hogan, 308 F.2d 355 (4th Cir. 1962); Glawe v. Rulon, 284
F.2d 495 (8th Cir. 1960). In the state courts, the trend favors
admissibility. Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d
224 (1938); Allen v. St. Louis Public Service Co., 365 Mo. 677, 285
S.W.2d 663, 55 A.L.R.2d 1022 (1956); People v. Kohlmeyer, 284 N.Y.
366, 31 N.E.2d 490 (1940); Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d
245 (1947). In order to make clear its adherence to the latter
position, the rule specifically includes both diagnoses and opinions,
in addition to acts, events, and conditions, as proper subjects of
admissible entries.

Problems of the motivation of the informant have been a source of
difficulty and disagreement. In Palmer v. Hoffman, 318 U.S. 109, 63
S.Ct. 477, 87 L.Ed. 645 (1943), exclusion of an accident report made
by the since deceased engineer, offered by defendant railroad trustees
in a grade crossing collision case, was upheld. The report was not "in
the regular course of business," not a record of the systematic
conduct of the business as a business, said the Court. The report was
prepared for use in litigating, not railroading. While the opinion
mentions the motivation of the engineer only obliquely, the emphasis
on records of routine operations is significant only by virtue of
impact on motivation to be accurate. Absence of routineness raises
lack of motivation to be accurate. The opinion of the Court of Appeals
had gone beyond mere lack of motive to be accurate: the engineer's
statement was "dripping with motivations to misrepresent." Hoffman v.
Palmer, 129 F.2d 976, 991 (2d Cir. 1942). The direct introduction of
motivation is a disturbing factor, since absence of motivation to
misrepresent has not traditionally been a requirement of the rule;
that records might be self-serving has not been a ground for
exclusion. Laughlin, Business Records and the Like, 46 Iowa L.Rev.
276, 285 (1961). As Judge Clark said in his dissent, "I submit that
there is hardly a grocer's account book which could not be excluded on
that basis." 129 F.2d at 1002. A physician's evaluation report of a
personal injury litigant would appear to be in the routine of his
business. If the report is offered by the party at whose instance it
was made, however, it has been held inadmissible, Yates v. Bair
Transport, Inc., 249 F.Supp. 681 (S.D.N.Y. 1965), otherwise if offered
by the opposite party, Korte v. New York, N.H. & H.R. Co., 191 F.2d 86
(2d Cir. 1951), cert. denied 342 U.S. 868, 72 S.Ct. 108, 96 L.Ed. 652.

The decisions hinge on motivation and which party is entitled to be
concerned about it. Professor McCormick believed that the doctor's
report or the accident report were sufficiently routine to justify
admissibility. McCormick §287, p. 604. Yet hesitation must be
experienced in admitting everything which is observed and recorded in
the course of a regularly conducted activity. Efforts to set a limit
are illustrated by Hartzog v. United States, 217 F.2d 706 (4th Cir.
1954), error to admit worksheets made by since deceased deputy
collector in preparation for the instant income tax evasion
prosecution, and United States v. Ware, 247 F.2d 698 (7th Cir. 1957),
error to admit narcotics agents' records of purchases. See also
Exception [paragraph] (8), infra, as to the public record aspects of
records of this nature. Some decisions have been satisfied as to
motivation of an accident report if made pursuant to statutory duty,
United States v. New York Foreign Trade Zone Operators, 304 F.2d 792
(2d Cir. 1962); Taylor v. Baltimore & O. R. Co., 344 F.2d 281 (2d Cir.
1965), since the report was oriented in a direction other than the
litigation which ensued. Cf. Matthews v. United States, 217 F.2d 409
(5th Cir. 1954). The formulation of specific terms which would assure
satisfactory results in all cases is not possible. Consequently the
rule proceeds from the base that records made in the course of a
regularly conducted activity will be taken as admissible but subject
to authority to exclude if "the sources of information or other
circumstances indicate lack of trustworthiness."

Occasional decisions have reached for enhanced accuracy by requiring
involvement as a participant in matters reported. Clainos v. United
States, 82 U.S.App.D.C. 278, 163 F.2d 593 (1947), error to admit
police records of convictions; Standard Oil Co. of California v.
Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied 356 U.S. 975, 78
S.Ct. 1139, 2 L.Ed.2d 1148, error to admit employees' records of
observed business practices of others. The rule includes no
requirement of this nature. Wholly acceptable records may involve
matters merely observed, e.g. the weather.

The form which the "record" may assume under the rule is described
broadly as a "memorandum, report, record, or data compilation, in any
form." The expression "data compilation" is used as broadly
descriptive of any means of storing information other than the
conventional words and figures in written or documentary form. It
includes, but is by no means limited to, electronic computer storage.
The term is borrowed from revised Rule 34(a) of the Rules of Civil
Procedure.

Exception (7). Failure of a record to mention a matter which would
ordinarily be mentioned is satisfactory evidence of its nonexistence.
Uniform Rule 63(14), Comment. While probably not hearsay as defined in
Rule 801, supra, decisions may be found which class the evidence not
only as hearsay but also as not within any exception. In order to set
the question at rest in favor of admissibility, it is specifically
treated here. McCormick §289, p. 609; Morgan, Basic Problems of
Evidence 314 (1962); 5 Wigmore §1531; Uniform Rule 63(14); California
Evidence Code §1272; Kansas Code of Civil Procedure §60–460(n); New
Jersey Evidence Rule 63(14).

Exception (8). Public records are a recognized hearsay exception at
common law and have been the subject of statutes without number.
McCormick §291. See, for example, 28 U.S.C. §1733, the relative
narrowness of which is illustrated by its nonapplicability to
nonfederal public agencies, thus necessitating report to the less
appropriate business record exception to the hearsay rule. Kay v.
United States, 255 F.2d 476 (4th Cir. 1958). The rule makes no
distinction between federal and nonfederal offices and agencies.

Justification for the exception is the assumption that a public
official will perform his duty properly and the unlikelihood that he
will remember details independently of the record. Wong Wing Foo v.
McGrath, 196 F.2d 120 (9th Cir. 1952), and see Chesapeake & Delaware
Canal Co. v. United States, 250 U.S. 123, 39 S.Ct. 407, 63 L.Ed. 889
(1919). As to items (a) and (b), further support is found in the
reliability factors underlying records of regularly conducted
activities generally. See Exception [paragraph] (6), supra.

(a) Cases illustrating the admissibility of records of the office's or
agency's own activities are numerous. Chesapeake & Delaware Canal Co.
v. United States, 250 U.S. 123, 39 S.Ct. 407, 63 L.Ed. 889 (1919),
Treasury records of miscellaneous receipts and disbursements; Howard
v. Perrin, 200 U.S. 71, 26 S.Ct. 195, 50 I.Ed. 374 (1906), General
Land Office records; Ballew v. United States, 160 U.S. 187, 16 S.Ct.
263, 40 L.Ed. 388 (1895), Pension Office records.

(b) Cases sustaining admissibility of records of matters observed are
also numerous. United States v. Van Hook, 284 F.2d 489 (7th Cir.
1960), remanded for resentencing 365 U.S. 609, 81 S.Ct. 823, 5 L.Ed.2d
821, letter from induction officer to District Attorney, pursuant to
army regulations, stating fact and circumstances of refusal to be
inducted; T'Kach v. United States, 242 F.2d 937 (5th Cir. 1957),
affidavit of White House personnel officer that search of records
showed no employment of accused, charged with fraudulently
representing himself as an envoy of the President; Minnehaha County v.
Kelley, 150 F.2d 356 (8th Cir. 1945); Weather Bureau records of
rainfall; United States v. Meyer, 113 F.2d 387 (7th Cir. 1940), cert.
denied 311 U.S. 706, 61 S.Ct. 174, 85 L.Ed. 459, map prepared by
government engineer from information furnished by men working under
his supervision.

(c) The more controversial area of public records is that of the
so-called "evaluative" report. The disagreement among the decisions
has been due in part, no doubt, to the variety of situations
encountered, as well as to differences in principle. Sustaining
admissibility are such cases as United States v. Dumas, 149 U.S. 278,
13 S.Ct. 872, 37 L.Ed. 734 (1893), statement of account certified by
Postmaster General in action against postmaster; McCarty v. United
States, 185 F.2d 520 (5th Cir. 1950), reh. denied 187 F.2d 234,
Certificate of Settlement of General Accounting Office showing
indebtedness and letter from Army official stating Government had
performed, in action on contract to purchase and remove waste food
from Army camp; Moran v. Pittsburgh-Des Moines Steel Co., 183 F.2d 467
(3d Cir. 1950), report of Bureau of Mines as to cause of gas tank
explosion; Petition of W—, 164 F.Supp. 659 (E.D.Pa.1958), report by
Immigration and Naturalization Service investigator that petitioner
was known in community as wife of man to whom she was not married. To
the opposite effect and denying admissibility are Franklin v. Skelly
Oil Co., 141 F.2d 568 (10th Cir. 1944), State Fire Marshal's report of
cause of gas explosion; Lomax Transp. Co. v. United States, 183 F.2d
331 (9th Cir. 1950), Certificate of Settlement from General Accounting
Office in action for naval supplies lost in warehouse fire; Yung Jin
Teung v. Dulles, 229 F.2d 244 (2d Cir. 1956), "Status Reports" offered
to justify delay in processing passport applications. Police reports
have generally been excluded except to the extent to which they
incorporate firsthand observations of the officer. Annot., 69 A.L.R.2d
1148. Various kinds of evaluative reports are admissible under federal
statutes: 7 U.S.C. §78, findings of Secretary of Agriculture prima
facie evidence of true grade of grain; 7 U.S.C. §210(f), findings of
Secretary of Agriculture prima facie evidence in action for damages
against stockyard owner; 7 U.S.C. §292, order by Secretary of
Agriculture prima facie evidence in judicial enforcement proceedings
against producers association monopoly; 7 U.S.C. §1622(h), Department
of Agriculture inspection certificates of products shipped in
interstate commerce prima facie evidence; 8 U.S.C. §1440(c),
separation of alien from military service on conditions other than
honorable provable by certificate from department in proceedings to
revoke citizenship; 18 U.S.C. §4245, certificate of Director of
Prisons that convicted person has been examined and found probably
incompetent at time of trial prima facie evidence in court hearing on
competency; 42 U.S.C. §269(b), bill of health by appropriate official
prima facie evidence of vessel's sanitary history and condition and
compliance with regulations; 46 U.S.C. §679, certificate of consul
presumptive evidence of refusal of master to transport destitute
seamen to United States. While these statutory exceptions to the
hearsay rule are left undisturbed, Rule 802, the willingness of
Congress to recognize a substantial measure of admissibility for
evaluative reports is a helpful guide.

Factors which may be of assistance in passing upon the admissibility
of evaluative reports include; (1) the timeliness of the
investigation, McCormack, Can the Courts Make Wider Use of Reports of
Official Investigations? 42 Iowa L.Rev. 363 (1957); (2) the special
skill or experience of the official, id., (3) whether a hearing was
held and the level at which conducted, Franklin v. Skelly Oil Co., 141
F.2d 568 (10th Cir. 1944); (4) possible motivation problems suggested
by Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943).
Others no doubt could be added.

The formulation of an approach which would give appropriate weight to
all possible factors in every situation is an obvious impossibility.
Hence the rule, as in Exception [paragraph] (6), assumes admissibility
in the first instance but with ample provision for escape if
sufficient negative factors are present. In one respect, however, the
rule with respect to evaluate reports under item (c) is very specific;
they are admissible only in civil cases and against the government in
criminal cases in view of the almost certain collision with
confrontation rights which would result from their use against the
accused in a criminal case.

Exception (9). Records of vital statistics are commonly the subject of
particular statutes making them admissible in evidence. Uniform Vital
Statistics Act, 9C U.L.A. 350 (1957). The rule is in principle
narrower than Uniform Rule 63(16) which includes reports required of
persons performing functions authorized by statute, yet in practical
effect the two are substantially the same. Comment Uniform Rule
63(16). The exception as drafted is in the pattern of California
Evidence Code §1281.

Exception (10). The principle of proving nonoccurrence of an event by
evidence of the absence of a record which would regularly be made of
its occurrence, developed in Exception [paragraph] (7) with respect to
regularly conducted activities, is here extended to public records of
the kind mentioned in Exceptions [paragraphs] (8) and (9). 5 Wigmore
§1633(6), p. 519. Some harmless duplication no doubt exists with
Exception [paragraph] (7). For instances of federal statutes
recognizing this method of proof, see 8 U.S.C. §1284(b), proof of
absence of alien crewman's name from outgoing manifest prima facie
evidence of failure to detain or deport, and 42 U.S.C. §405(c)(3),
(4)(B), (4)(C), absence of HEW [Department of Health, Education, and
Welfare] record prima facie evidence of no wages or self-employment
income.

The rule includes situations in which absence of a record may itself
be the ultimate focal point of inquiry, e.g. People v. Love, 310 Ill.
558, 142 N.E. 204 (1923), certificate of Secretary of State admitted
to show failure to file documents required by Securities Law, as well
as cases where the absence of a record is offered as proof of the
nonoccurrence of an event ordinarily recorded.

The refusal of the common law to allow proof by certificate of the
lack of a record or entry has no apparent justification, 5 Wigmore
§1678(7), p. 752. The rule takes the opposite position, as do Uniform
Rule 63(17); California Evidence Code §1284; Kansas Code of Civil
Procedure §60–460(c); New Jersey Evidence Rule 63(17). Congress has
recognized certification as evidence of the lack of a record. 8 U.S.C.
§1360(d), certificate of Attorney General or other designated officer
that no record of Immigration and Naturalization Service of specified
nature or entry therein is found, admissible in alien cases.

Exception (11). Records of activities of religious organizations are
currently recognized as admissible at least to the extent of the
business records exception to the hearsay rule, 5 Wigmore §1523, p.
371, and Exception [paragraph] (6) would be applicable. However, both
the business record doctrine and Exception [paragraph] (6) require
that the person furnishing the information be one in the business or
activity. The result is such decisions as Daily v. Grand Lodge, 311
Ill. 184, 142 N.E. 478 (1924), holding a church record admissible to
prove fact, date, and place of baptism, but not age of child except
that he had at least been born at the time. In view of the
unlikelihood that false information would be furnished on occasions of
this kind, the rule contains no requirement that the informant be in
the course of the activity. See California Evidence Code §1315 and
Comment.

Exception (12). The principle of proof by certification is recognized
as to public officials in Exceptions [paragraphs] (8) and (10), and
with respect to authentication in Rule 902. The present exception is a
duplication to the extent that it deals with a certificate by a public
official, as in the case of a judge who performs a marriage ceremony.
The area covered by the rule is, however, substantially larger and
extends the certification procedure to clergymen and the like who
perform marriages and other ceremonies or administer sacraments. Thus
certificates of such matters as baptism or confirmation, as well as
marriage, are included. In principle they are as acceptable evidence
as certificates of public officers. See 5 Wigmore §1645, as to
marriage certificates. When the person executing the certificate is
not a public official, the self-authenticating character of documents
purporting to emanate from public officials, see Rule 902, is lacking
and proof is required that the person was authorized and did make the
certificate. The time element, however, may safely be taken as
supplied by the certificate, once authority and authenticity are
established, particularly in view of the presumption that a document
was executed on the date it bears.

For similar rules, some limited to certificates of marriage, with
variations in foundation requirements, see Uniform Rule 63(18);
California Evidence Code §1316; Kansas Code of Civil Procedure
§60–460(p); New Jersey Evidence Rule 63(18).

Exception (13). Records of family history kept in family Bibles have
by long tradition been received in evidence. 5 Wigmore §§1495, 1496,
citing numerous statutes and decisions. See also Regulations, Social
Security Administration, 20 C.F.R. §404.703(c), recognizing family
Bible entries as proof of age in the absence of public or church
records. Opinions in the area also include inscriptions on tombstones,
publicly displayed pedigrees, and engravings on rings. Wigmore, supra.
The rule is substantially identical in coverage with California
Evidence Code §1312.

Exception (14). The recording of title documents is a purely statutory
development. Under any theory of the admissibility of public records,
the records would be receivable as evidence of the contents of the
recorded document, else the recording process would be reduced to a
nullity. When, however, the record is offered for the further purpose
of proving execution and delivery, a problem of lack of first-hand
knowledge by the recorder, not present as to contents, is presented.
This problem is solved, seemingly in all jurisdictions, by qualifying
for recording only those documents shown by a specified procedure,
either acknowledgement or a form of probate, to have been executed and
delivered. 5 Wigmore §§1647–1651. Thus what may appear in the rule, at
first glance, as endowing the record with an effect independently of
local law and inviting difficulties of an Erie nature under Cities
Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196
(1939), is not present, since the local law in fact governs under the
example.

Exception (15). Dispositive documents often contain recitals of fact.
Thus a deed purporting to have been executed by an attorney in fact
may recite the existence of the power of attorney, or a deed may
recite that the grantors are all the heirs of the last record owner.
Under the rule, these recitals are exempted from the hearsay rule. The
circumstances under which dispositive documents are executed and the
requirement that the recital be germane to the purpose of the document
are believed to be adequate guarantees of trustworthiness,
particularly in view of the nonapplicability of the rule if dealings
with the property have been inconsistent with the document. The age of
the document is of no significance, though in practical application
the document will most often be an ancient one. See Uniform Rule
63(29), Comment.

Similar provisions are contained in Uniform Rule 63(29); California
Evidence Code §1330; Kansas Code of Civil Procedure §60–460(aa); New
Jersey Evidence Rule 63(29).

Exception (16). Authenticating a document as ancient, essentially in
the pattern of the common law, as provided in Rule 901(b)(8), leaves
open as a separate question the admissibility of assertive statements
contained therein as against a hearsay objection. 7 Wigmore §2145a.
Wigmore further states that the ancient document technique of
authentication is universally conceded to apply to all sorts of
documents, including letters, records, contracts, maps, and
certificates, in addition to title documents, citing numerous
decisions. Id. §2145. Since most of these items are significant
evidentially only insofar as they are assertive, their admission in
evidence must be as a hearsay exception. But see 5 id. §1573, p. 429,
referring to recitals in ancient deeds as a "limited" hearsay
exception. The former position is believed to be the correct one in
reason and authority. As pointed out in McCormick §298, danger of
mistake is minimized by authentication requirements, and age affords
assurance that the writing antedates the present controversy. See
Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th
Cir. 1961), upholding admissibility of 58-year-old newspaper story.
Cf. Morgan, Basic Problems of Evidence 364 (1962), but see id. 254.

For a similar provision, but with the added requirement that "the
statement has since generally been acted upon as true by persons
having an interest in the matter," see California Evidence Code §1331.

Exception (17). Ample authority at common law supported the admission
in evidence of items falling in this category. While Wigmore's text is
narrowly oriented to lists, etc., prepared for the use of a trade or
profession, 6 Wigmore §1702, authorities are cited which include other
kinds of publications, for example, newspaper market reports,
telephone directories, and city directories. Id. §§1702–1706. The
basis of trustworthiness is general reliance by the public or by a
particular segment of it, and the motivation of the compiler to foster
reliance by being accurate.

For similar provisions, see Uniform Rule 63(30); California Evidence
Code §1340; Kansas Code of Civil Procedure §60–460(bb); New Jersey
Evidence Rule 63(30). Uniform Commercial Code §2–724 provides for
admissibility in evidence of "reports in official publications or
trade journals or in newspapers or periodicals of general circulation
published as the reports of such [established commodity] market."

Exception (18). The writers have generally favored the admissibility
of learned treatises, McCormick §296, p. 621; Morgan, Basic Problems
of Evidence 366 (1962); 6 Wigmore §1692, with the support of
occasional decisions and rules, City of Dothan v. Hardy, 237 Ala. 603,
188 So. 264 (1939); Lewandowski v. Preferred Risk Mut. Ins. Co., 33
Wis.2d 69, 146 N.W.2d 505 (1966), 66 Mich.L.Rev. 183 (1967); Uniform
Rule 63(31); Kansas Code of Civil Procedure §60–460(ce), but the great
weight of authority has been that learned treatises are not admissible
as substantive evidence though usable in the cross-examination of
experts. The foundation of the minority view is that the hearsay
objection must be regarded as unimpressive when directed against
treatises since a high standard of accuracy is engendered by various
factors: the treatise is written primarily and impartially for
professionals, subject to scrutiny and exposure for inaccuracy, with
the reputation of the writer at stake. 6 Wigmore §1692. Sound as this
position may be with respect to trustworthiness, there is,
nevertheless, an additional difficulty in the likelihood that the
treatise will be misunderstood and misapplied without expert
assistance and supervision. This difficulty is recognized in the cases
demonstrating unwillingness to sustain findings relative to disability
on the basis of judicially noticed medical texts. Ross v. Gardner, 365
F.2d 554 (6th Cir. 1966); Sayers v. Gardner, 380 F.2d 940 (6th Cir.
1967); Colwell v. Gardner, 386 F.2d 56 (6th Cir. 1967); Glendenning v.
Ribicoff, 213 F.Supp. 301 (W.D.Mo. 1962); Cook v. Celebrezze, 217
F.Supp. 366 (W.D.Mo. 1963); Sosna v. Celebrezze, 234 F.Supp. 289
(E.D.Pa. 1964); and see McDaniel v. Celebrezze, 331 F.2d 426 (4th Cir.
1964). The rule avoids the danger of misunderstanding and
misapplication by limiting the use of treatises as substantive
evidence to situations in which an expert is on the stand and
available to explain and assist in the application of the treatise if
declared. The limitation upon receiving the publication itself
physically in evidence, contained in the last sentence, is designed to
further this policy.

The relevance of the use of treatises on cross-examination is evident.
This use of treatises has been the subject of varied views. The most
restrictive position is that the witness must have stated expressly on
direct his reliance upon the treatise. A slightly more liberal
approach still insists upon reliance but allows it to be developed on
cross-examination. Further relaxation dispenses with reliance but
requires recognition as an authority by the witness, developable on
cross-examination. The greatest liberality is found in decisions
allowing use of the treatise on cross-examination when its status as
an authority is established by any means. Annot., 60 A.L.R.2d 77. The
exception is hinged upon this last position, which is that of the
Supreme Court, Reilly v. Pinkus, 338 U.S. 269, 70 S.Ct. 110, 94 L.Ed.
63 (1949), and of recent well considered state court decisions, City
of St. Petersburg v. Ferguson, 193 So.2d 648 (Fla.App. 1967), cert.
denied Fla., 201 So.2d 556; Darling v. Charleston Memorial Community
Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965); Dabroe v. Rhodes Co.,
64 Wash.2d 431, 392 P.2d 317 (1964).

In Reilly v. Pinkus, supra, the Court pointed out that testing of
professional knowledge was incomplete without exploration of the
witness' knowledge of and attitude toward established treatises in the
field. The process works equally well in reverse and furnishes the
basis of the rule.

The rule does not require that the witness rely upon or recognize the
treatise as authoritative, thus avoiding the possibility that the
expert may at the outset block cross-examination by refusing to
concede reliance or authoritativeness. Dabroe v. Rhodes Co., supra.
Moreover, the rule avoids the unreality of admitting evidence for the
purpose of impeachment only, with an instruction to the jury not to
consider it otherwise. The parallel to the treatment of prior
inconsistent statements will be apparent. See Rules 6130(b) and
801(d)(1).

Exceptions (19), (20), and (21). Trustworthiness in reputation
evidence is found "when the topic is such that the facts are likely to
have been inquired about and that persons having personal knowledge
have disclosed facts which have thus been discussed in the community;
and thus the community's conclusion, if any has been formed, is likely
to be a trustworthy one." 5 Wigmore §1580, p. 444, and see also §1583.
On this common foundation, reputation as to land boundaries, customs,
general history, character, and marriage have come to be regarded as
admissible. The breadth of the underlying principle suggests the
formulation of an equally broad exception, but tradition has in fact
been much narrower and more particularized, and this is the pattern of
these exceptions in the rule.

Exception [paragraph] (19) is concerned with matters of personal and
family history. Marriage is universally conceded to be a proper
subject of proof by evidence of reputation in the community. 5 Wigmore
§1602. As to such items as legitimacy, relationship, adoption, birth,
and death, the decisions are divided. Id. §1605. All seem to be
susceptible to being the subject of well founded repute. The "world"
in which the reputation may exist may be family, associates, or
community. This world has proved capable of expanding with changing
times from the single uncomplicated neighborhood, in which all
activities take place, to the multiple and unrelated worlds of work,
religious affiliation, and social activity, in each of which a
reputation may be generated. People v. Reeves, 360 Ill. 55, 195 N.E.
443 (1935); State v. Axilrod, 248 Minn. 204, 79 N.W.2d 677 (1956);
Mass.Stat. 1947, c. 410, M.G.L.A. c. 233 §21A; 5 Wigmore §1616. The
family has often served as the point of beginning for allowing
community reputation. 5 Wigmore §1488. For comparable provisions see
Uniform Rule 63(26), (27)(c); California Evidence Code §§1313, 1314;
Kansas Code of Civil Procedure §60–460(x), (y)(3); New Jersey Evidence
Rule 63(26), (27)(c).

The first portion of Exception [paragraph] (20) is based upon the
general admissibility of evidence of reputation as to land boundaries
and land customs, expanded in this country to include private as well
as public boundaries. McCormick §299, p. 625. The reputation is
required to antedate the controversy, though not to be ancient. The
second portion is likewise supported by authority, id., and is
designed to facilitate proof of events when judicial notice is not
available The historical character of the subject matter dispenses
with any need that the reputation antedate the controversy with
respect to which it is offered. For similar provisions see Uniform
Rule 63(27)(a), (b); California Evidence Code §§1320–1322; Kansas Code
of Civil Procedure §60–460(y), (1), (2); New Jersey Evidence Rule
63(27)(a), (b).

Exception [paragraph] (21) recognizes the traditional acceptance of
reputation evidence as a means of proving human character. McCormick
§§44, 158. The exception deals only with the hearsay aspect of this
kind of evidence. Limitations upon admissibility based on other
grounds will be found in Rules 404, relevancy of character evidence
generally, and 608, character of witness. The exception is in effect a
reiteration, in the context of hearsay, of Rule 405(a). Similar
provisions are contained in Uniform Rule 63(28); California Evidence
Code §1324; Kansas Code of Civil Procedure §60–460(z); New Jersey
Evidence Rule 63(28).

Exception (22). When the status of a former judgment is under
consideration in subsequent litigation, three possibilities must be
noted: (1) the former judgment is conclusive under the doctrine of res
judicata, either as a bar or a collateral estoppel; or (2) it is
admissible in evidence for what it is worth; or (3) it may be of no
effect at all. The first situation does not involve any problem of
evidence except in the way that principles of substantive law
generally bear upon the relevancy and materiality of evidence. The
rule does not deal with the substantive effect of the judgment as a
bar or collateral estoppel. When, however, the doctrine of res
judicata does not apply to make the judgment either a bar or a
collateral estoppel, a choice is presented between the second and
third alternatives. The rule adopts the second for judgments of
criminal conviction of felony grade. This is the direction of the
decisions, Annot., 18 A.L.R.2d 1287, 1299, which manifest an
increasing reluctance to reject in toto the validity of the law's
factfinding processes outside the confines of res judicata and
collateral estoppel. While this may leave a jury with the evidence of
conviction but without means to evaluate it, as suggested by Judge
Hinton, Note 27 Ill.L.Rev. 195 (1932), it seems safe to assume that
the jury will give it substantial effect unless defendant offers a
satisfactory explanation, a possibility not foreclosed by the
provision. But see North River Ins. Co. v. Militello, 104 Colo. 28, 88
P.2d 567 (1939), in which the jury found for plaintiff on a fire
policy despite the introduction of his conviction for arson. For
supporting federal decisions see Clark, J., in New York & Cuba Mail
S.S. Co. v. Continental Cas. Co., 117 F.2d 404, 411 (2d Cir. 1941);
Connecticut Fire Ins. Co. v. Farrara, 277 F.2d 388 (8th Cir. 1960).

Practical considerations require exclusion of convictions of minor
offenses, not became the administration of justice in its lower
echelons must be inferior, but because motivation to defend at this
level is often minimal or nonexistent. Cope v. Goble, 39 Cal.App.2d
448, 103 P.2d 598 (1940); Jones v. Talbot, 87 Idaho 498, 394 P.2d 316
(1964); Warren v. Marsh, 215 Minn. 615, 11 N.W.2d 528 (1943); Annot.,
18 A.L.R.2d 1287, 1295–1297; 16 Brooklyn L.Rev. 286 (1950); 50
Colum.L.Rev. 529 (1950); 35 Cornell L.Q. 872 (1950). Hence the rule
includes only convictions of felony grade, measured by federal
standards.

Judgments of conviction based upon pleas of nolo contendere are not
included. This position is consistent with the treatment of nolo pleas
in Rule 410 and the authorities cited in the Advisory Committee's Note
in support thereof.

While these rules do not in general purport to resolve constitutional
issues, they have in general been drafted with a view to avoiding
collision with constitutional principles. Consequently the exception
does not include evidence of the conviction of a third person, offered
against the accused in a criminal prosecution to prove any fact
essential to sustain the judgment of conviction. A contrary position
would seem clearly to violate the right of confrontation. Kirby v.
United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899), error
to convict of possessing stolen postage stamps with the only evidence
of theft being the record of conviction of the thieves The situation
is to be distinguished from cases in which conviction of another
person is an element of the crime, e.g. 15 U.S.C. §902(d), interstate
shipment of firearms to a known convicted felon, and, as specifically
provided, from impeachment.

For comparable provisions see Uniform Rule 63(20); California Evidence
Code §1300; Kansas Code of Civil Procedure §60–460(r); New Jersey
Evidence Rule 63(20).

Exception (23). A hearsay exception in this area was originally
justified on the ground that verdicts were evidence of reputation. As
trial by jury graduated from the category of neighborhood inquests,
this theory lost its validity. It was never valid as to chancery
decrees. Nevertheless the rule persisted, though the judges and
writers shifted ground and began saying that the judgment or decree
was as good evidence as reputation. See City of London v. Clerke,
Carth. 181, 90 Eng.Rep. 710 (K.B. 1691); Neill v. Duke of Devonshire,
8 App.Cas. 135 (1882). The shift appears to be correct, since the
process of inquiry, sifting, and scrutiny which is relied upon to
render reputation reliable is present in perhaps greater measure in
the process of litigation. While this might suggest a broader area of
application, the affinity to reputation is strong, and paragraph
[paragraph] (23) goes no further, not even including character.

The leading case in the United States, Patterson v. Gaines, 47 U.S. (6
How.) 550, 599, 12 L.Ed. 553 (1847), follows in the pattern of the
English decisions, mentioning as illustrative matters thus provable:
manorial rights, public rights of way, immemorial custom, disputed
boundary, and pedigree. More recent recognition of the principle is
found in Grant Bros. Construction Co. v. United States, 232 U.S. 647,
34 S.Ct. 452, 58 L.Ed. 776 (1914), in action for penalties under Alien
Contract Labor Law, decision of board of inquiry of Immigration
Service admissible to prove alienage of laborers, as a matter of
pedigree; United States v. Mid-Continent Petroleum Corp., 67 F.2d 37
(10th Cir. 1933), records of commission enrolling Indians admissible
on pedigree; Jung Yen Loy v. Cahill, 81 F.2d 809 (9th Cir. 1936),
board decisions as to citizenship of plaintiff's father admissible in
proceeding for declaration of citizenship. Contra, In re Estate of
Cunha, 49 Haw. 273, 414 P.2d 925 (1966).

Notes of Committee on the Judiciary, House Report No. 93–650

Rule 803(3) was approved in the form submitted by the Court to
Congress. However, the Committee intends that the Rule be construed to
limit the doctrine of Mutual Life Insurance Co. v. Hillmon, 145 U.S.
285, 295 –300 (1892), so as to render statements of intent by a
declarant admissible only to prove his future conduct, not the future
conduct of another person.

After giving particular attention to the question of physical
examination made solely to enable a physician to testify, the
Committee approved Rule 803(4) as submitted to Congress, with the
understanding that it is not intended in any way to adversely affect
present privilege rules or those subsequently adopted.

Rule 803(5) as submitted by the Court permitted the reading into
evidence of a memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to
enable him to testify accurately and fully, "shown to have been made
when the matter was fresh in his memory and to reflect that knowledge
correctly." The Committee amended this Rule to add the words "or
adopted by the witness" after the phrase "shown to have been made", a
treatment consistent with the definition of "statement" in the Jencks
Act, 18 U.S.C. 3500. Moreover, it is the Committee's understanding
that a memorandum or report, although barred under this Rule, would
nonetheless be admissible if it came within another hearsay exception.
This last stated principle is deemed applicable to all the hearsay
rules.

Rule 803(6) as submitted by the Court permitted a record made "in the
course of a regularly conducted activity" to be admissible in certain
circumstances. The Committee believed there were insufficient
guarantees of reliability in records made in the course of activities
falling outside the scope of "business" activities as that term is
broadly defined in 28 U.S.C. 1732. Moreover, the Committee concluded
that the additional requirement of Section 1732 that it must have been
the regular practice of a business to make the record is a necessary
further assurance of its trustworthiness. The Committee accordingly
amended the Rule to incorporate these limitations.

Rule 803(7) as submitted by the Court concerned the absence of entry
in the records of a "regularly conducted activity." The Committee
amended this Rule to conform with its action with respect to Rule
803(6).

The Committee approved Rule 803(8) without substantive change from the
form in which it was submitted by the Court. The Committee intends
that the phrase "factual findings" be strictly construed and that
evaluations or opinions contained in public reports shall not be
admissible under this Rule.

The Committee approved this Rule in the form submitted by the Court,
intending that the phrase "Statements of fact concerning personal or
family history" be read to include the specific types of such
statements enumerated in Rule 803(11).

Notes of Committee on the Judiciary, Senate Report No. 93–1277

The House approved this rule as it was submitted by the Supreme Court
"with the understanding that it is not intended in any way to
adversely affect present privilege rules." We also approve this rule,
and we would point out with respect to the question of its relation to
privileges, it must be read in conjunction with rule 35 of the Federal
Rules of Civil Procedure which provides that whenever the physical or
mental condition of a party (plaintiff or defendant) is in
controversy, the court may require him to submit to an examination by
a physician. It is these examinations which will normally be admitted
under this exception.

Rule 803(5) as submitted by the Court permitted the reading into
evidence of a memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to
enable him to testify accurately and fully, "shown to have been made
when the matter was fresh in his memory and to reflect that knowledge
correctly." The House amended the rule to add the words "or adopted by
the witness" after the phrase "shown to have been made," language
parallel to the Jencks Act [ 18 U.S.C. §3500 ].

The committee accepts the House amendment with the understanding and
belief that it was not intended to narrow the scope of applicability
of the rule. In fact, we understand it to clarify the rule's
applicability to a memorandum adopted by the witness as well as one
made by him. While the rule as submitted by the Court was silent on
the question of who made the memorandum, we view the House amendment
as a helpful clarification, noting, however, that the Advisory
Committee's note to this rule suggests that the important thing is the
accuracy of the memorandum rather than who made it.

The committee does not view the House amendment as precluding
admissibility in situations in which multiple participants were
involved.

When the verifying witness has not prepared the report, but merely
examined it and found it accurate, he has adopted the report, and it
is therefore admissible. The rule should also be interpreted to cover
other situations involving multiple participants, e.g., employer
dictating to secretary, secretary making memorandum at direction of
employer, or information being passed along a chain of persons, as in
Curtis v. Bradley [ 65 Conn. 99, 31 Atl. 591 (1894); see, also Rathbun
v. Brancatella, 93 N.J.L. 222, 107 Atl. 279 (1919); see, also
McCormick on Evidence, §303 (2d ed. 1972)].

The committee also accepts the understanding of the House that a
memorandum or report, although barred under rule, would nonetheless be
admissible if it came within another hearsay exception. We consider
this principle to be applicable to all the hearsay rules.

Rule 803(6) as submitted by the Supreme Court permitted a record made
in the course of a regularly conducted activity to be admissible in
certain circumstances. This rule constituted a broadening of the
traditional business records hearsay exception which has been long
advocated by scholars and judges active in the law of evidence

The House felt there were insufficient guarantees of reliability of
records not within a broadly defined business records exception. We
disagree. Even under the House definition of "business" including
profession, occupation, and "calling of every kind," the records of
many regularly conducted activities will, or may be, excluded from
evidence. Under the principle of ejusdem generis, the intent of
"calling of every kind" would seem to be related to work-related
endeavors—e.g., butcher, baker, artist, etc.

Thus, it appears that the records of many institutions or groups might
not be admissible under the House amendments. For example, schools,
churches, and hospitals will not normally be considered businesses
within the definition. Yet, these are groups which keep financial and
other records on a regular basis in a manner similar to business
enterprises. We believe these records are of equivalent
trustworthiness and should be admitted into evidence.

Three states, which have recently codified their evidence rules, have
adopted the Supreme Court version of rule 803(6), providing for
admission of memoranda of a "regularly conducted activity." None
adopted the words "business activity" used in the House amendment.
[See Nev. Rev. Stats. §15.135; N. Mex. Stats. (1973 Supp.)
§20–4–803(6); West's Wis. Stats. Anno. (1973 Supp.) §908.03(6).]

Therefore, the committee deleted the word "business" as it appears
before the word "activity". The last sentence then is unnecessary and
was also deleted.

It is the understanding of the committee that the use of the phrase
"person with knowledge" is not intended to imply that the party
seeking to introduce the memorandum, report, record, or data
compilation must be able to produce, or even identify, the specific
individual upon whose first-hand knowledge the memorandum, report,
record or data compilation was based. A sufficient foundation for the
introduction of such evidence will be laid if the party seeking to
introduce the evidence is able to show that it was the regular
practice of the activity to base such memorandums, reports, records,
or data compilations upon a transmission from a person with knowledge,
e.g., in the case of the content of a shipment of goods, upon a report
from the company's receiving agent or in the case of a computer
printout, upon a report from the company's computer programer or one
who has knowledge of the particular record system. In short, the scope
of the phrase "person with knowledge" is meant to be coterminous with
the custodian of the evidence or other qualified witness. The
committee believes this represents the desired rule in light of the
complex nature of modern business organizations.

The House approved rule 803(8), as submitted by the Supreme Court,
with one substantive change. It excluded from the hearsay exception
reports containing matters observed by police officers and other law
enforcement personnel in criminal cases. Ostensibly, the reason for
this exclusion is that observations by police officers at the scene of
the crime or the apprehension of the defendant are not as reliable as
observations by public officials in other cases because of the
adversarial nature of the confrontation between the police and the
defendant in criminal cases.

The committee accepts the House's decision to exclude such recorded
observations where the police officer is available to testify in court
about his observation. However, where he is unavailable as
unavailability is defined in rule 804(a)(4) and (a)(5), the report
should be admitted as the best available evidence. Accordingly, the
committee has amended rule 803(8) to refer to the provision of
[proposed] rule 804(b)(5) [deleted], which allows the admission of
such reports, records or other statements where the police officer or
other law enforcement officer is unavailable because of death, then
existing physical or mental illness or infirmity, or not being
successfully subject to legal process.

The House Judiciary Committee report contained a statement of intent
that "the phrase 'factual findings' in subdivision (c) be strictly
construed and that evaluations or opinions contained in public reports
shall not be admissible under this rule." The committee takes strong
exception to this limiting understanding of the application of the
rule. We do not think it reflects an understanding of the intended
operation of the rule as explained in the Advisory Committee notes to
this subsection. The Advisory Committee notes on subsection (c) of
this subdivision point out that various kinds of evaluative reports
are now admissible under Federal statutes. 7 U.S.C. §78, findings of
Secretary of Agriculture prima facie evidence of true grade of grain;
42 U.S.C. §269(b), bill of health by appropriate official prima facie
evidence of vessel's sanitary history and condition and compliance
with regulations. These statutory exceptions to the hearsay rule are
preserved. Rule 802. The willingness of Congress to recognize these
and other such evaluative reports provides a helpful guide in
determining the kind of reports which are intended to be admissible
under this rule. We think the restrictive interpretation of the House
overlooks the fact that while the Advisory Committee assumes
admissibility in the first instance of evaluative reports, they are
not admissible if, as the rule states, "the sources of information or
other circumstances indicate lack of trustworthiness."

The Advisory Committee explains the factors to be considered:

* * * * *

Factors which may be assistance in passing upon the admissibility of
evaluative reports include: (1) the timeliness of the investigation,
McCormick, Can the Courts Make Wider Use of Reports of Official
Investigations? 42 Iowa L.Rev. 363 (1957); (2) the special skill or
experience of the official, id.; (3) whether a hearing was held and
the level at which conducted, Franklin v. Skelly Oil Co., 141 F.2d 568
(19th Cir. 1944); (4) possible motivation problems suggested by Palmer
v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Others no
doubt could be added.

* * * * *

The committee concludes that the language of the rule together with
the explanation provided by the Advisory Committee furnish sufficient
guidance on the admissibility of evaluative reports.

The proposed Rules of Evidence submitted to Congress contained
identical provisions in rules 803 and 804 (which set forth the various
hearsay exceptions), admitting any hearsay statement not specifically
covered by any of the stated exceptions, if the hearsay statement was
found to have "comparable circumstantial guarantees of
trustworthiness." The House deleted these provisions (proposed rules
803(24) and 804(b)(6)[(5)]) as injecting "too much uncertainty" into
the law of evidence and impairing the ability of practitioners to
prepare for trial. The House felt that rule 102, which directs the
courts to construe the Rules of Evidence so as to promote growth and
development, would permit sufficient flexibility to admit hearsay
evidence in appropriate cases under various factual situations that
might arise.

We disagree with the total rejection of a residual hearsay exception.
While we view rule 102 as being intended to provide for a broader
construction and interpretation of these rules, we feel that, without
a separate residual provision, the specifically enumerated exceptions
could become tortured beyond any reasonable circumstances which they
were intended to include (even if broadly construed). Moreover, these
exceptions, while they reflect the most typical and well recognized
exceptions to the hearsay rule, may not encompass every situation in
which the reliability and appropriateness of a particular piece of
hearsay evidence make clear that it should be heard and considered by
the trier of fact.

The committee believes that there are certain exceptional
circumstances where evidence which is found by a court to have
guarantees of trust worthiness equivalent to or exceeding the
guarantees reflected by the presently listed exceptions, and to have a
high degree of prolativeness and necessity could properly be
admissible.

The case of Dallas County v. Commercial Union Assoc. Co., Ltd., 286
F.2d 388 (5th Cir. 1961) illustrates the point. The issue in that case
was whether the tower of the county courthouse collapsed because it
was struck by lightning (covered by insurance) or because of
structural weakness and deterioration of the structure (not covered).
Investigation of the structure revealed the presence of charcoal and
charred timbers. In order to show that lightning may not have been the
cause of the charring, the insurer offered a copy of a local newspaper
published over 50 years earlier containing an unsigned article
describing a fire in the courthouse while it was under construction.
The Court found that the newspaper did not qualify for admission as a
business record or an ancient document and did not fit within any
other recognized hearsay exception. The court concluded, however, that
the article was trustworthy because it was inconceivable that a
newspaper reporter in a small town would report a fire in the
courthouse if none had occurred. See also United States v. Barbati,
284 F. Supp. 409 (E.D.N.Y. 1968).

Because exceptional cases like the Dallas County case may arise in the
future, the committee has decided to reinstate a residual exception
for rules 803 and 804(b).

The committee, however, also agrees with those supporters of the House
version who felt that an overly broad residual hearsay exception could
emasculate the hearsay rule and the recognized exceptions or vitiate
the rationale behind codification of the rules.

Therefore, the committee has adopted a residual exception for rules
803 and 804(b) of much narrower scope and applicability than the
Supreme Court version. In order to qualify for admission, a hearsay
statement not falling within one of the recognized exceptions would
have to satisfy at least four conditions. First, it must have
"equivalent circumstantial guarantees of trustworthiness." Second, it
must be offered as evidence of a material fact. Third, the court must
determine that the statement "is more probative on the point for which
it is offered than any other evidence which the proponent can procure
through reasonable efforts." This requirement is intended to insure
that only statements which have high probative value and necessity may
qualify for admission under the residual exceptions. Fourth, the court
must determine that "the general purposes of these rules and the
interests of justice will best be served by admission of the statement
into evidence."

It is intended that the residual hearsay exceptions will be used very
rarely, an only in exceptional circumstances. The committee does not
intend to establish a broad license for trial judges to admit hearsay
statements that do not fall within one of the other exceptions
contained in rules 803 and 804(b). The residual exceptions are not
meant to authorize major judicial revisions of the hearsay rule,
including its present exceptions. Such major revisions are best
accomplished by legislative action. It is intended that in any case in
which evidence is sought to be admitted under these subsections, the
trial judge will exercise no less care, reflection and caution than
the courts did under the common law in establishing the now-recognized
exceptions to the hearsay rule.

In order to establish a well-defined jurisprudence, the special facts
and circumstances which, in the court's judgment, indicates that the
statement has a sufficiently high degree of trustworthiness and
necessity to justify its admission should be stated on the record. It
is expected that the court will give the opposing party a full and
adequate opportunity to contest the admission of any statement sought
to be introduced under these subsections.

Notes of Conference Committee, House Report No. 93–1597

Rule 803 defines when hearsay statements are admissible in evidence
even though the declarant is available as a witness. The Senate
amendments make three changes in this rule.

The House bill provides in subsection (6) that records of a regularly
conducted "business" activity qualify for admission into evidence as
an exception to the hearsay rule. "Business" is defined as including
"business, profession, occupation and calling of every kind." The
Senate amendment drops the requirement that the records be those of a
"business" activity and eliminates the definition of "business." The
Senate amendment provides that records are admissible if they are
records of a regularly conducted "activity."

The Conference adopts the House provision that the records must be
those of a regularly conducted "business" activity. The Conferees
changed the definition of "business" contained in the House provision
in order to make it clear that the records of institutions and
associations like schools, churches and hospitals are admissible under
this provision. The records of public schools and hospitals are also
covered by Rule 803(8), which deals with public records and reports.

The Senate amendment adds language, not contained in the House bill,
that refers to another rule that was added by the Senate in another
amendment ([proposed] Rule 804(b)(5)—Criminal law enforcement records
and reports [deleted]).

In view of its action on [proposed] Rule 804(b)(5) (Criminal law
enforcement records and reports) [deleted], the Conference does not
adopt the Senate amendment and restores the bill to the House version.

The Senate amendment adds a new subsection, (24), which makes
admissible a hearsay statement not specifically covered by any of the
previous twenty-three subsections, if the statement has equivalent
circumstantial guarantees of trustworthiness and if the court
determines that (A) the statement is offered as evidence of a material
fact; (B) the statement is more probative on the point for which it is
offered than any other evidence the proponent can procure through
reasonable efforts; and (C) the general purposes of these rules and
the interests of justice will best be served by admission of the
statement into evidence.

The House bill eliminated a similar, but broader, provision because of
the conviction that such a provision injected too much uncertainty
into the law of evidence regarding hearsay and impaired the ability of
a litigant to prepare adequately for trial.

The Conference adopts the Senate amendment with an amendment that
provides that a party intending to request the court to use a
statement under this provision must notify any adverse party of this
intention as well as of the particulars of the statement, including
the name and address of the declarant. This notice must be given
sufficiently in advance of the trial or hearing to provide any adverse
party with a fair opportunity to prepare to contest the use of the
statement.

Notes of Advisory Committee on Rules—1987 Amendment

The amendments are technical. No substantive change is intended.

Notes of Advisory Committee on Rules—1997 Amendment

The contents of Rule 803(24) and Rule 804(b)(5) have been combined and
transferred to a new Rule 807. This was done to facilitate additions
to Rules 803 and 804. No change in meaning is intended.

GAP Report on Rule 803. The words "Transferred to Rule 807" were
substituted for "Abrogated."

Committee Notes on Rules—2000 Amendment

The amendment provides that the foundation requirements of Rule 803(6)
can be satisfied under certain circumstances without the expense and
inconvenience of producing time-consuming foundation witnesses. Under
current law, courts have generally required foundation witnesses to
testify. See, e.g., Tongil Co., Ltd. v. Hyundai Merchant Marine Corp.,
968 F.2d 999 (9th Cir. 1992) (reversing a judgment based on business
records where a qualified person filed an affidavit but did not
testify). Protections are provided by the authentication requirements
of Rule 902(11) for domestic records, Rule 902(12) for foreign records
in civil cases, and 18 U.S.C. §3505 for foreign records in criminal
cases.

GAP Report—Proposed Amendment to Rule 803(6). The Committee made no
changes to the published draft of the proposed amendment to Evidence
Rule 803(6).

Committee Notes on Rules—2011 Amendment

The language of Rule 803 has been amended as part of the restyling of
the Evidence Rules to make them more easily understood and to make
style and terminology consistent throughout the rules. These changes
are intended to be stylistic only. There is no intent to change any
result in any ruling on evidence admissibility.

Amendment by Public Law

1975 —Exception (23). Pub. L. 94–149 inserted a comma immediately
after "family" in catchline.



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