Miss. R. Evid. 803
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
If admitted, the statement may be read into evidence but not received as an exhibit. A treatise used in direct examination must be disclosed to an opposing party without charge in discovery.
The pendency of an appeal may be shown but does not affect admissibility.
Miss. R. Evid. 803
Advisory Committee Historical Note
Effective July 1, 1997, Rule 803(6) was amended to allow predicate evidence for admission of these records to be presented by affidavit in appropriate cases. 689-692 So. 2d LXVIII (West Miss. Cas. 1997.)
Effective March 20, 1995, the Comment to Rules 803(10) and (11) were amended to note the repeal of statutes. 648-651So.2d 651 So.2d XXVI (West Miss.Cas.1995).
Effective March 27, 1991, Rule 803(4) was amended to permit the use of statements made to persons who are not doctors and to define the term "medical." 574-576 So. 2d XXVIII (West Miss. Cas. 1991).
Effective March 27, 1991, the Court adopted Rule 803(25). 574-576 So. 2d XXVIII (West Miss. Cas. 1991).
Advisory Committee Note
The language of Rule 803 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. As before, Rule 803 uses numbered paragraphs as first-level formatting, rather than typical lower-case lettered subdivisions, because changing the structure of the Rule would disrupt electronic search results and thus impose transaction costs that outweigh any benefit in strictly consistent formatting. Rules 803(5)-(10) are simplified by using 'record," defined in Rule 101(b)(3)-(4). In Rule 803(8), "prosecution" has replaced "state" to conform with Rule 1101(a), which provides that the Evidence Rules apply to all cases and proceedings, including those where the State is not the prosecuting authority, such as those brought in the name of a municipality. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
Rule 803 provides that the hearsay rule does not exclude certain kinds of statements regardless of whether the declarant is available to testify. The rule explicitly does not state that the exceptions therein are admissible. The rationale for this is to put the parties on notice that, while the hearsay hurdle may not exist, other reasons may be present which justify the exclusion of the evidence. Rule 803 collects the vast majority of the recognized hearsay exceptions.
(1) Present Sense Impression. This exception is a new addition in Mississippi. It is based on the theory that the contemporaneous occurrence of the event and the statement render it unlikely that the declarant made a deliberate or conscious misrepresentation. Precise contemporaneity of the event and the statement may not be possible; a slight lapse may be permissible. Spontaneity is the essential factor. Cited cases which discuss the present sense impression exception are scant. Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474 (1942), provides, perhaps, the clearest illustration of the exception. The appropriate subject matter of a statement of present sense impression is a description or explanation of an event or condition.
The present sense impression is not the same thing as the res gestae exception, although the res gestae concept has been used to cover situations where present sense impression would have been appropriate. Houston Contracting Co. v. Atkinson, 251 Miss. 220, 168 So.2d 797 (1964). Rule 803 does not provide for an explicit res gestae exception. The rules, in effect, abandon the elusive concept of res gestae. Rules 803(1), (2), (3), and (4) have elements of the old res gestae exception, but they are far more specific and, therefore, they surmount much of the justified criticism regarding res gestae. For criticism in Mississippi of the res gestae concept, see McCaskill v. State, 227 So.2d 847 (Miss. 1969); Masonite Corp. v. International Woodworkers, 215 So.2d 691 (Miss. 1968); Barton and Cowart, "The Enigma of Hearsay," 49 Miss.L.J. 31 (1978).
(2) Excited Utterance. In may respects, the excited utterance exception is similar to the former res gestae rule. The underlying theory of the excited utterance exception is that circumstances may create such an excited condition that the capacity for reflection is temporarily impeded and that statements uttered in that condition are thus free of conscious fabrication. As in the present sense impression exception, the essential ingredient here is spontaneity. With respect to the time element, the issue is the duration of the excited state. This, depending on the exact circumstances of a case, can vary greatly. The declarant need not be a participant but only an observer of the event which triggered the excitement. An excited utterance need only "relate" to the startling event, and, therefore, the scope of the subject matter of the statement may be fairly broad.
(3) Then Existing Mental, Emotional, or Physical Condition. As the FRE Advisory Committee's Note states, this exception is really a specialized application of Rule 803(1). Its purpose in being specially listed is to enhance its usefulness. The pre-rule res gestae exception is even more closely linked with Rule 801(3) than it is with Rule 801(1), (2), and (4). The exclusion in Rule 801(3) of statements which reflect backwards is necessary to prevent the hearsay rule from being totally consumed by the exception. The important case, Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933), indicates the necessity for the exclusion. On the other hand, statements which indicate intention to do something in the future are admissible to prove that the act intended took place. See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed 706 (1892); Hall v. Hall, 199 Miss. 478, 24 So.2d 347 (1946).
One exemption from the exclusion is for statements of memory or belief which relate to the execution, revocation, identification, or terms of a declarant's will. There is no particular logical reason for this. Rather, the basis for allowing such statements is founded on necessity and expediency.
(4) Statements for Purposes of Medical Diagnosis or Treatment. Rule 803(4) represents a deviation from previous Mississippi practice in three significant ways. First, Rule 803(4) permits statements of past symptoms as well as present symptoms. Second the rule allows for statements which relate to the source or cause of the medical problem, whereas Mississippi courts formerly disallowed such statements. See Field v. State, 57 Miss 474 (1879) and Miss Cent. R.R. Co. v. Turnage, 95 Miss. 854, 49 So. 840 (1909) for pre-rule Mississippi law. While statements about cause are permissible, statements concerning fault are still excludible. Third, the statement may be made either to a physician or to diagnostic medical personnel. Mississippi's pre-rule practice distinguished between narrative statements made to a treating physician and those made to an examining physician who was retained for use as an expert witness in the litigation. Statements made to the former were generally admissible, whereas no statements made to the latter were admissible. See Mississippi Cent. R.R. v. Turnage, 95 Miss. 854, 49 So. 840 (1909). Rule 803(4) eliminates that distinction and permits statements made both for treating and diagnostic purposes. Under Rule 803(4) the statement need not be made to a physician. This is consistent with traditional Mississippi practice.
The amendment to Rule 803(4) is a recognition that medical diagnosis and treatment may encompass mental and emotional conditions as well as physical conditions. Moreover, the rule, by requiring the judge to find trustworthiness, gives the trial judge greater discretion than the original rule. By permitting the recipient to be non-medical personnel, M.R.E. 803(4) modifies case law interpretations of the former language of this exception and now conforms with prevailing interpretations of F.R.E. 803(4). See F.R.E. 803(4), Advisory Committee Notes.
(5) Recorded Recollection. Past recollection recorded has been recognized as a hearsay exception in Mississippi practice. Rule 803(5), however, clarifies much of the past confusion regarding that exception. An essential feature is that this exception may not be employed until there has been a preliminary showing that the witness's memory is exhausted to the extent that he is unable to testify fully and accurately.
There is great judicial discretion in Rule 803(5). As pointed out in the FRE Advisory Committee's Note, the circumstances of a particular case will govern the method of establishing the initial knowledge and the contemporaneity and accuracy of the record in question. It is possible under Rule 803(5) to have several persons involved in the process of observing and recording.
(6) Records of Regularly Conducted Activity. Rule 803(6) is an expansion of the common law business records exception used in Mississippi. The records must be those of a regularly conducted business activity; however, the definition of business is broader than prerule practice in Mississippi permitted. It includes records of non-profit institutions and associations. It is important to note that the custodian as well as other qualified witnesses may testify. Thus, it is not necessary to call or to account for all participants who made the record.
However, the source of the material must be an informant with knowledge who is acting in the course of the regularly conducted activity. This is exemplified by the leading case of Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930) which is still the applicable law today under the rule. That case held that a police report which contained information obtained from a bystander was inadmissible; the officer qualified as one acting in the regular course of a business, but the informant did not.
Rule 803(6) specifically includes diagnoses and opinions as proper subjects of admissible entries, as well as the traditionally admissible entries pertaining to acts, events and conditions. The rule calls for the exercise of judicial discretion if there is an indication of a lack of trustworthiness. This permits the court to take into account the motivation of the informant.
Rule 803(6) provides that if the proponent has established the stated requirements of the exception - regular business with regularly kept record, source with personal knowledge, record made timely, and foundation testimony or certification - then the burden is on the opponent to show a lack of trustworthiness. It is appropriate to impose the burden of proving untrustworthiness on the opponent, as the basic admissibility requirements tend to guarantee trustworthiness in the first place and thus suffice to establish a presumption that the record is reliable. "[B]y showing that the records regularly record regularly conducted activity, the proponent has made a sufficient showing that the records are trustworthy enough to be admissible. The proponent should not have to make an extra affirmative showing of trustworthiness." Saltzburg, Martin, & Capra, Federal Rules of Evidence Manual vol. 4. § 803.02[7][g] (11th ed.) (2017).
The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. The Supreme Court has noted that the use of the term "'indicates' certainly imposes less of a burden than, say, 'requires' or 'necessitates.'" Rowland v. California Men's Colony, 506 U.S. 194, 200 (1993). A determination of untrustworthiness necessarily depends on the circumstances.
The reference to self-authentication under Rule 902(11) is to confirm that the predicate for records under this exception may be by affidavit in appropriate cases.
(7) Absence of Entry in Records Kept in Accordance with the Provision of Paragraph (6). A record's failure to mention a matter which would ordinarily be contained in it is admissible to prove the nonexistence of the matter. This is innovative in Mississippi. Traditional Mississippi courts have admitted evidence of the absence of matter in the record only in the cases of public records.
While it has been unclear whether the absence of information was even hearsay, some courts have treated it as such and have found no exception to apply. Rule 803(7) settles the question of admissibility by clearly making the absence factor an exception.
Rule 803(7) provides that if the proponent has established the stated requirements of the exception - set forth in Rule 803(6) - then the burden is on the opponent to show a lack of trustworthiness. Rule 803(7) thus maintains consistency with the trustworthiness clause of Rule 803(6).
(8) Public Records and Reports. Public records and reports have been admissible in evidence as an exception to the hearsay rule. Countless statutory provisions in Mississippi formerly provided for the admission of public records. Additionally, there was similar development in the common law. Ludlow v. Arkwright-Boston Mfrs. Mut. Ins. Co., 317 So.2d 47 (Miss 1975). Subdivisions (A) and (B) are similar to Mississippi practice. The rule makes no distinction between state and local records. Subdivision (C) adds the new element to the exception as traditionally applied in Mississippi. Subdivision (C) provides that some investigative reports may be treated as hearsay exceptions. To be admissible they must be factual findings made in an investigation which was conducted pursuant to lawful authority. Opinions and conclusions contained in such reports should be excluded.
The experience in other jurisdictions which have adopted an identical rule has been that judges are exercising great caution in admitting these reports. Often they are being excluded if based on hearsay or the opinions of those not involved in the preparation of the report. The rule expressly gives judges the discretion to exclude such reports.
Rule 803(8) provides that if the proponent has established the stated requirements of the exception - prepared by a public office and setting out information as specified in the Rule - then the burden is on the opponent to show a lack of trustworthiness. It is appropriate to impose the burden of proving untrustworthiness on the opponent, as the basic admissibility requirements tend to guarantee trustworthiness in the first place and thus suffice to establish a presumption that the record is reliable. See Saltzburg, Martin, & Capra. Federal Rules of Evidence Manual vol. 4, $ 803.02[9][a] (11th ed.) (2017) ("Because of the strong presumption of reliability accorded to public reports, the burden of proving untrustworthiness is borne by the party seeking exclusion."); Ellis v. InternationalPlavtex, Inc., 745 F.2d 292, 301 (4th Cir. 1984) (Public records rightly carry a presumption of reliability, hence it is up to the opponent to "demonstrate why a time-tested and carefully considered presumption is not appropriate."). Rule 803(8) thus maintains consistency with the trustworthiness clause of rule 803(6).
The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. The Supreme Court has noted that the use of the term "'indicates' certainly imposes less of a burden than, say, 'requires' or 'necessitates.'" Rowland v. California Men's Colony, 506 U.S. 194, 200 (1993). A determination of untrustworthiness necessarily depends on the circumstances.
Even when admissible, public records under Subdivision (C) may only be used in civil cases and in criminal cases on behalf of a defendant against the state. To permit the state to use such reports against a defendant would be to create confrontation rights problems.
(9) Records of Vital Statistics. This rule is similar to pre-existing Mississippi law. For example, M.C.A. § 41-57-9 formerly provided for the admission of certified copies of birth and death, and M.C.A. § 41-57-47 formerly provided for the admission of certified copies of marriage records.
(10) Absence of Public Record or Entry.
Rule 803(10) permits proof by oral testimony or a certificate. For criminal cases, subparagraph (B) encompasses the requirements of Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527. 174 L.Ed.2d 314 (2009), by incorporating an approved notice and demand procedure. See also Conners v. State, 92 So.3d 676 (Miss. 2012). The Melendez-Diaz Court declared that, consistent with the Confrontation Clause, the prosecutor may introduce a testimonial certificate against an accused who is given advance notice and does not timely demand the presence of the official who prepared the certificate.
(11) Records of Religious Organizations and (12) Marriage, Baptismal, and Similar Certificates. M.C.A. § 13-1-103 (repealed effective July 1, 1991) formerly provided for the admission of marriage certificates. However, Rules 803(11) and (20) go much further. The records of a religious organization are admissible under Rule 803(11) to show statements of personal and family history. Much of what is admissible might also be admissible under the business records exception.
(13) Family Records. This rule is an extension of existing Mississippi law. The Mississippi court has indicated it will recognize statements of personal or family relationship contained in the family Bible. See Tisdale v. Jefferson Standard Life Insurance Co., 244 Miss. 839, 147 So.2d 122 (1962).
(14) Records and Documents Affecting an Interest in Property. Because of the nature of title documents, they might conceivably be treated as public records. The Mississippi court has long recognized their admissibility. See, for instance, Doe v. McCaleb, 3 Miss (2 Howard) 756 (1838); DeLashmet v. McClellen, 152 Miss. 781, 118 So. 904 (1928).
(15) Statements in Documents Affecting an Interest in Property. Rule 803(15) provides that statements of fact in land documents constitute a hearsay exception. The circumstances under which land documents are made supply the hearsay exception guarantees of reliability and trustworthiness. The rule provides for the exclusion of statements when they fail to comply with the guarantee of trustworthiness. At any rate, many of these documents would be admissible under the conventional ancient document rule.
(16) Statements in Ancient Documents. The ancient documents rule is a traditionally recognized exception in Mississippi. The exception is limited to statements in documents prepared before January 1, 1998, due to the risk that the exception could otherwise be used as a vehicle to admit vast amounts of unreliable electronically stored information (ESI). Given the exponential development and growth of electronic information since 1998, the hearsay exception for ancient documents had become a possible open door for large amounts of unreliable ESI, as no showing of reliability needs to be made to qualify under the exception.
In certain cases - such as cases involving latent diseases and environmental damage - parties must rely on hardcopy documents from the past. The ancient documents exception remains available in such cases for documents prepared before 1998. The need to admit old hardcopy documents produced after January 1, 1998, should decrease, because reliable ESI is likely to be available and can be offered under a reliability-based hearsay exception. Rule 803(6) may be used for many of these ESI documents, especially given its flexible standards on which witnesses might be qualified to provide an adequate foundation. And Rule 803(24) can be used to admit old documents upon a showing of reliability - which will often (though not always) be found by circumstances such as that the document was prepared with no litigation motive in mind, close in time to the relevant events. The limitation of the ancient documents exception is not intended to raise an inference that 20-year-old documents are, as a class, unreliable, or that they should somehow not qualify for admissibility under Rule 803(24). Finally, many old documents can be admitted for the non-hearsay purpose of proving notice, or as party-opponent statements.
The limitation of the ancient documents hearsay exception is not intended to have any effect on authentication of ancient documents. The possibility of authenticating an old document under Rule 901(b)(8) - or under any ground available for any other document - remains unchanged.
A party will often offer hardcopy that is derived from ESL A good deal of old information in hardcopy has been digitized or will be so in the future. Under Rule 803(16), a document is "prepared" when the statement proffered was recorded in that document. For example, if a hardcopy document is prepared in 1995, and a party seeks to admit a scanned copy of that document, the date of preparation is 1995 even though the scan was made long after that - the subsequent scan does not alter the document. The relevant point is the date on which the information is recorded, not when the information is prepared for trial. However, if the content of the document is itself altered after the cutoff date, then the hearsay exception would not apply to statements that were added in the alteration.
(17) Market Reports, Commercial Publications. This rule, for the most part, codifies existing practice. Mississippi has previously recognized an exception for mortality tables and market reports. See Tucker v. Donald, 60 Miss. 460 (1882) and Yazoo & M.V.R. Co. v. M. Levy & Sons, 141 Miss 199, 106 So. 525 (1925). The extension to existing practice is in the area of commercial publications. However, the guarantees of trustworthiness for mortality tables and market reports is similar, if not identical, to that for commercial publication. The public, in each case, relies on the publication.
(18) Learned Treatise. Rule 803(18) differs significantly from pre-rule Mississippi practice. It allows statements in learned treatises to be admitted as substantive evidence. This is a departure from Mississippi law which only provided for impeachment use of treatises. Tucker v. Donald, 60 Miss. 460 (1882); Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So. 2d 216 (Miss. 1969). However, under the rule the statements are only admissible after (1) the witness testifies that the treatise is reliable, (2) another expert so testifies, or (3) the court takes judicial notice. Even then the treatise may not be used substantively unless the witness relied upon it in his testimony on direct examination or the witness was questioned about it on cross-examination. The rule explicitly states that the statements may not be given to the jury as exhibits; they may only be read to the jury. To submit the treatise to the jury would be to give its written statements more emphasis than the oral testimony presented to the jury.
(19) Reputation Concerning Personal or Family History. This rule is akin to the common law exception relating to family pedigree, although the rule is broader. For instance, a non-familial associate of a person may testify about the personal or family history of that person. The Mississippi court, however, has been moving towards this principle. See Hathaway v. North, 190 Miss 697, 1 So.2d 490 (1941). The rule as stated is a recognition that knowledge of a person's history extends throughout his sphere, to family, friends, and community. This reputation evidence may be used for substantive evidence.
(20) Reputation Concerning Boundaries or General History. This rule codifies existing Mississippi law. See, for example, Nixon v. Porter, 34 Miss. 697 (1858).
(21) Reputation as to Character. This exception is concerned only with the hearsay aspect of reputation evidence. The exception is, in effect, a reiteration in the context of hearsay of Rule 405(a). Limitations upon admissibility based on other grounds are in Rules 404 and 608.
(22) Judgment of Previous Conviction. Rule 803(22) is a significant departure from traditional Mississippi practice. Past Mississippi practice has been to exclude judgments of convictions as substantive evidence of the facts which sustain it. Gholson v. Smith, 210 Miss. 28, 48 So.2d 603 (1950). Under 803(22), however, evidence of a judgment of guilty in a felony-grade case is admissible as substantive evidence of any fact essential to uphold the judgment. It is not available where the judgment is based on a plea of nolo contendere or on a misdemeanor conviction. The theory for the exclusion of the misdemeanor conviction is based on practicality. Motivation to defend a misdemeanor charge is often minimal.
The exception does not include evidence of the conviction of a third person, offered against the accused in a criminal case, to prove any fact essential to uphold the judgment.
(23) Judgment as to Personal, Family or General History, or Boundaries. This rule is similar to Rule 803(22). It is related to Rules 803(19) and (20) which admit reputation evidence as hearsay exceptions.
(24) Other Exceptions. The rule reflects the realization that the law is not stagnant. As the FRE Advisory Committee's Note indicates, it would be presumptuous to assume that the contemporary legal community has enumerated every single hearsay exception which possible could exist. The exceptions are not a closed system, and Rule 803(24) and its counterpart Rule 804(b)(5) allow for the future development of the law when the guarantees of reliability and trustworthiness can be found. While these two rules allow for judicial discretion, they do not permit an unfettered discretion which could ultimately devour the hearsay rule. Before admitting statements under this rule, the judge must make a finding that the statements being offered are sufficiently trustworthy and reliable. See Cummins v. State, 515 So.2d 869 (Miss. 1987). One of the clearest examples of the circumstances meeting the criteria of Rule 803(24) is found in Dallas County v. Commercial Union Assur. Co., 286 F.2d 388 (5th Cir. 1961).
(25) Tender Years Exception. Some factors that the court should examine to determine if there is sufficient indicia of reliability are (1) whether there is an apparent motive on declarant's part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant's faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declarant's age, knowledge, and experience make it unlikely that the declarant fabricated. Corroborating evidence may not be used as an indicia of reliability. Smith v. State, 925 So.2d 825, 837 (Miss. 2006); Hennington v. State, 702 So.2d 403, 415 (Miss. 1997). A finding that there is a substantial indicia of reliability should be made on the record.
Mississippi's pre-rule tender years exception did not define "tender years." See Williams v. State, 427 So.2d 100 (Miss. 1983). Many jurisdictions limit their analogous exceptions to declarants under the age of fourteen years. However, the exception should not be necessarily limited to a specific chronological age. In appropriate cases, the exception might apply when the declarant is chronologically older than fourteen years, but the declarant has a mental age less than fourteen years.
Corroboration required for admissibility under M.R.E. 803(25)(b)(2) need not be eyewitness testimony or physical evidence, but may include confessions, doctors' reports, inappropriate conduct by the child, and other appropriate expert testimony.
When any of the hearsay exceptions in Rule 803 are applied in a criminal case, the rights of the defendant under the Confrontations Clauses of Federal and State Constitutions must be respected. Crawford v. Washington 124 S.Ct. 1354 (2004) (The confrontation clause forbids "admission of testimonial statements of a witness who did not appear at trial unless [the witness is] unavailable to testify, and the defendant had had a prior opportunity for crossexamination."); Davis v. Washington, 126 S.Ct. 2266 (2006) (Among other things, prior testimony, depositions, affidavits, and confessions are testimonial, as are other statements to police if "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."). See also Osborne v. State, 942 So.2d 193 (Miss. Ct. App. 2006) (applying Rule 803(25) in light of Crawford and finding video of child's statements produced at the direction of the district attorney testimonial but no confrontation clause violation because child testified and was subject to cross-examination); Bell v. State 928 So.2d 951 (Miss. 2006) (child's statements to police testimonial and therefore improperly admitted under 803(2)); Hobgood v. State, 926 So.2d 847 (Miss. 2006) (applying Rule 803(25) in light of Crawford and finding statements by children to family members and health care providers not testimonial but similar statements to police testimonial); Foley v. State, 914 So.2d 677 (Miss. 2005) (statements made as part of "neutral medical evaluations" not testimonial and properly admitted under 803(4) and 803(25)).
[Amended July 1, 2009; "Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling; amended effective July 1, 2020.]
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