§ 12-2803. Hearsay exceptions - Availability of declarant immaterial.

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

1.  A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter;

2.  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.  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 made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, if reasonably pertinent to diagnosis or treatment;

5.  A record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly.  The record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party;

6.  A record of acts, events, conditions, opinions or diagnosis, 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 record, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with paragraph 11 or 12 of Section 2902 of this title, or with a statute providing for certification, 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 public record inadmissible under paragraph 8 of this section is inadmissible under this exception;

7.  Evidence that a matter is not included in records kept in accordance with the provisions of paragraph 6 of this section, to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a record was regularly made and preserved, or by certification that complies with paragraph 11 or 12 of Section 2902 of this title, or with a statute providing for certification, unless the sources of information or other circumstances indicate lack of trustworthiness;

8.  To the extent not otherwise provided in this paragraph, a record 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 finding 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 agency when offered by it in a case in which it is a party,

c.factual findings offered by the government in criminal cases,

d.factual findings resulting from special investigation of a particular complaint, case or incident, or

e.any matter as to which the sources of information or other circumstances indicate lack of trustworthiness;

9.  Records of births, fetal deaths, deaths or marriages, if the report thereof was made to a public office pursuant to statutory requirements;

10.  To prove the absence of a record or the nonoccurrence or nonexistence of a matter of which a record was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Section 2903 of this title, or testimony, that diligent search failed to disclose the record or entry;

11.  Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage or other similar facts of personal or family history contained in a regularly kept record of a religious organization;

12.  Statements of fact contained in a certified record that the maker performed a marriage or other ceremony or administered a sacrament, made by a cleric, 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;

13.  Statements of fact concerning personal or family history including those contained in family Bibles, genealogy, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts or tombstones, or the like;

14.  A public record 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 and delivered;

15.  A statement contained in a record purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the record unless dealings with the property since the record was made have been inconsistent with the truth of the statement or the purport of the record;

16.  Statements in a record in existence twenty (20) years or more, the authenticity of which is established;

17.  Market quotations, tabulations, lists, directories or other published or publicly recorded compilations generally used and relied upon by the public or by persons in particular occupations;

18.  To the extent called to the attention of an expert witness upon cross-examination or relied upon by the 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 among members of an individual’s family by blood, adoption or marriage, or among the individual’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 the individual’s personal or family history;

20.  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 of a person's character among the person’s associates or in the community;

22.  Evidence of a final judgment, but not upon a plea of nolo contendere, adjudging a person guilty of a crime punishable by death or imprisonment in excess of one (1) year, to prove any fact essential to sustain the judgment, but not including, when offered by the state in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused.  The pendency of an appeal may be shown but does not affect admissibility;

23.  Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the matter would be provable by evidence of reputation; or

24.  A verified or declared written medical report signed by a physician, provided:

a.the report is used in an action not arising out of contract in which the claim of the plaintiff is not in excess of Twenty-five Thousand Dollars ($25,000.00),

b.the report contains a history of the plaintiff, the complaints of the plaintiff, the physician’s findings on examination, and any diagnostic tests, description and cause of the injury, and the nature and extent of any permanent impairment.  All opinions expressed in the report must be based upon a reasonable degree of medical probability, and

c.the medical report must be verified or contain a written declaration, made under the penalty of perjury, that the report is true.

Added by Laws 1978, c. 285, § 803, eff. Oct. 1, 1978.  Amended by Laws 2002, c. 468, § 59, eff. Nov. 1, 2002; Laws 2004, c. 519, § 2, eff. Nov. 1, 2004.