§ RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL
RULE 803. 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) Spontaneous Present Sense Impression. A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition.
COMMITTEE COMMENT
The change reflected above was based on the fact that neither immediacy nor spontaneity would be guaranteed by the Federal rule. Colorado case law requires that a present sense impression be instinctive and spontaneous in order to be admissible. SeeDenver City Tramway Co. v. Brumley, 51 Colo. 251, 116 P. 1051 (1911). It was felt that the requirements set forth in that opinion constitute a greater guarantee of trustworthiness than the Federal rule, i.e., spontaneity is the most important factor governing trustworthiness. This is especially true when there is no provision that the declarant be unavailable as a witness.
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
COMMITTEE COMMENT
See:Houser v. Eckhardt, 168 Colo. 226, 450 P.2d 664 (1969); Ingles v. People, 90 Colo. 51, 6 P.2d 455 (1931); and § 8-53-103(2)(a) & (b), C.R.S. (Workmen's Compensation Act of Colorado).
(5) Recorded Recollection. A past recollection recorded when it appears that the witness once had knowledge concerning the matter and: (A) can identify the memorandum or record, (B) adequately recalls the making of it at or near the time of the event, either as recorded by the witness or by another, and (C) can testify to its accuracy. The memorandum or record may be read into evidence but may not itself be received unless offered by an adverse party.
COMMITTEE COMMENT
The change reflected above was made because the Federal rule is more restrictive than the Colorado rule, which does not require absence of a present recollection to be expressly shown as a preliminary to use of recorded recollection. Jordan v. People, 151 Colo. 133, 376 P.2d 699 (1962).
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, 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 memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting 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.
COMMITTEE COMMENT
The rule makes no reference to any objective standard of trustworthiness, e.g., regularity with which records are kept. See Colorado cases: Patterson v. Pitoniak, 173 Colo. 454, 480 P.2d 579 (1971); Moseley v. Smith, 170 Colo. 177, 460 P.2d 222 (1969); Seib v. Standley, 164 Colo. 394, 435 P.2d 395 (1967); Rocky Mountain Beverage v. Walter Brewing Company, 107 Colo. 63, 108 P.2d 885 (1941); Hobbs v. Breen, 74 Colo. 277, 220 P. 997 (1923); Powell v. Brady, 30 Colo. App. 406, 496 P.2d 328 (1972).
(7) Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
(8) Public Records and Reports. Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law.
(9) Records of Vital Statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
COMMITTEE COMMENT
This rule is somewhat broader than the provisions of § 25-2-117, C.R.S., and respecting marriage records is desirable because the evidentiary use of the book of marriages provided in § 90-1-20, C.R.S. 1963, was repealed in 1973.
(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the non-occurrence or non-existence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
(11) Records of Religious Organizations. 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) Marriage, Baptismal, and Similar Certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
(13) Family Records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
COMMITTEE COMMENT
The age of the record or regularity of keeping are immaterial to admissibility. The content of fact is not limited to pedigree or genealogy.
(14) Records of Documents Affecting an Interest in Property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded or filed document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.
COMMITTEE COMMENT
The generic term “property” used in the Federal rule indicates an intent that the rule apply to documents relating to interests in both real property and personal property. The term “filed” has been added to render the rule applicable to personal property under Colorado law: the Uniform Commercial Code, the Colorado Rules of Civil Procedure, and § 30-10-103, C.R.S., all refer to “filing” documents affecting an interest in personal property.
(15) Statements in Documents Affecting an Interest in Property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
COMMITTEE COMMENT
The rule extends admissibility beyond case law and statutes. E.g.,McClure v. Board of Commissioners of La Plata County, 19 Colo. 122, 34 P. 763 (1893); Wright v. People in the Interest of Rowe, 131 Colo. 92, 279 P.2d 676 (1955); Michael v. John Hancock Mutual Life Insurance Co., 138 Colo. 450, 334 P.2d 1090 (1959). Statutes more restrictive than the rule are §§ 38-35-102, 38-35-104, 38-35-105, 38-35-107, and 38-35-108, C.R.S.
(16) Statements in Ancient Documents. Statements in a document in existence twenty years or more the authenticity of which is established.
COMMITTEE COMMENT
The rule liberalizes the hearsay exception for ancient documents by eliminating proof of execution (see general statement for this principle in 32A C.J.S., Evidence, Sec. 744, page 32) and, further, reduces the required age of such document to twenty years from thirty years. For Colorado authorities on the subject, seeMcGary v. Blakeley, 127 Colo. 495, 258 P.2d 770 (1953) and § 38-35-107, C.R.S.
(17) Market Reports, Commercial Publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
COMMITTEE COMMENT
Colorado authorities affecting this rule are: 4-2-724, C.R.S.; Continental Divide Mining Investment Company v. Bliley, 23 Colo. 160, 166, 46 P. 633, 635 (1896); Willard v. Mellor, 19 Colo. 534, 36 P. 148 (1894); Kansas Pacific R.R. Company v. Lundin, 3 Colo. 94 (1876); Rio Grande Southern R.R. Company v. Nichols, 52 Colo. 300, 123 P. 318 (1912); Johnson v. Cousins, 110 Colo. 540, 135 P.2d 1021 (1943).
(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by him 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 and may be received as exhibits, as the court permits.
COMMITTEE COMMENT
Unlike the Federal Rule, the Colorado Rule allows the learned treatises to be admitted as exhibits in the discretion of the court. The former Colorado Rule seemed to be that only if such treatise had been relied upon by the witness in forming his opinion might it be admitted. Denver City Tramway v. Gawley, 23 Colo. App. 332, 129 P. 258 (1912); Wall v. Weaver, 145 Colo. 337, 358 P.2d 1009 (1961); Ross v. Colo. Nat'l Bank, 170 Colo. 436, 463 P.2d 882 (1970).
(19) Reputation Concerning Personal or Family History. Reputation among members of his family by blood, adoption, or marriage, or among his associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of his personal or family history.
COMMITTEE COMMENT
The former Colorado rule limited such evidence to reputation among persons related by blood or marriage to the family in question. Epple v. First Nat'l Bank of Greeley, 143 Colo. 319, 352 P.2d 796 (1960).
(20) Reputation Concerning Boundaries or General History. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.
COMMITTEE COMMENT
This rule is thought consistent with the former Colorado rule. See§ 38-44-101, C.R.S., reestablishing disputed boundaries.
(21) Reputation as to Character. Reputation of a person's character among his associates or in the community.
(22) Judgment of Previous Conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty or nolo contendere, adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government 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.
COMMITTEE COMMENT
The rule represents Colorado law by its inclusion of a nolo contendere plea. § 13-90-101, C.R.S., construed to include a nolo contendere plea in Lacey v. People, 166 Colo. 152, 442 P.2d 402 (1968).
(23) Judgment as to Personal, Family, or General History or Boundaries. Judgments as proof of matters of personal, family, or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.
COMMITTEE COMMENT
A judgment, under the circumstances stated, creates the reputations, and is admissible subject to the limitations applicable to evidence of reputation.
(24) [Transferred to Rule 807]
COMMITTEE COMMENT
The contents of Rule 803(24) and Rule 804(b)(5) have been combined and transferred to Rule 807. This was done to facilitate additions to Rules 803 and 804. No change in meaning is intended.