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:
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(7) Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidencethata 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. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (i) the activities of the office or agency, or (ii) 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 (iii) in civil actions and proceedings and against the State in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. However, factual findings may not be admitted under this exception unless the proponentof themfurnishes toathe party against whom they arenowoffered a copythereofof the factual findings, orof so muchportion thereof as relates to the controversy, sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to prepareto meet them. The adverse party may cross-examine under oath any person making the report or factual findings or any person furnishing information contained therein, but the lack of availability of that testimony does not affect admissibility of the report or factual findings unless, in the opinion of the court, the adverse partyiswould be prejudiced unfairlythereby.
(9) Records of Vital Statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the reportthereofwas made to a public officepursuant tounder requirements of law.
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(25) [Transferred to Rule 807]Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) 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; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party and to the court in writing sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
EXPLANATORY NOTE
Rule 803 was amended, effective March 1, 1990; _______________________.
Rule 803 is an adoption of Rule 803 of the Federal Rules of Evidencewith one notable change occurring in Rule 803(22), which is discussed below.
The last two sentences in 803(8) are derived from Sections 31-09-11 and 31-09-12, NDCC, which are superseded by these rules.Cf. Rules 803(25) and 804(b)(5).
The excepted situations listed in this rule traditionally have been deemed to have circumstantial guarantees of trustworthiness which render hearsay evidence reliable and admissible, even though the declarant may be available to testify.
The first three exceptions listed comprise what has been loosely termed the "res gestae" exception. That phrase is not used in this rule. The use of the specific exceptions, rather than the vague and elusive "res gestae" is felt to depict a clearer picture of which statements are within the exception, and the justification for their admissibility.This approach has been specifically approved by the North Dakota Supreme Court. Starr v. Morsette, 236 N.W.2d 183 at 187, n. 1 (N.D. 1975).
Subdivision (22) providesthat,in certain instances, evidence of a previous final judgment comes within a hearsay exception. The subdivision differs from its federal counterpart.in that theThe federal exception for pleas of nolo contendere has been deleted as that plea is not used in the State courts of North Dakota. Rules 11 and 12, NDRCrimP. The subdivision also was changed by addingthatpost-conviction proceedings, like appeals, do not affect the admissibility of previous convictions.
It should also be notedthatthese exceptions remove only the hearsay objection to evidence. Evidence of a past conviction under paragraph (22) sought to be introduced must also meet the requirements of Rule 609, NDREv.
Rule 803 was amended, effective March 1, 1990, to provide a hearsay exception for a childvictimsvictim of sexual abuse and is modeled in part after the Colorado and Utah statutes on a child victim's out-of-court statement regarding sexual abuse. Former paragraph (24) was renumbered to paragraph (25) and all other amendments are technical in nature and no substantive change is intended.
Rule 803 was amended, effective ______________, to follow the December 1, 1997, federal amendment. The contents of Rule 803(25) are transferred to new Rule 807.
The basis for the admission of hearsay evidence under any of these exceptions is its circumstantial guarantees of trustworthiness. Paragraph (25) provides that a statement not specifically listed may also be admitted if it has comparable guarantees of trustworthiness and meets the three listed conditions. Furthermore, notice must be given of its intended use.
This subdivision is designed to prevent the strained extensions of hearsay exceptions that have occurred in the past. Evidence meeting the requirements of paragraph (25) should be admitted and now may be without distorting the listed exceptions.
SOURCES: Supreme Court Conference Minutes: Rule 803(24); October 23 and October 25, 1989. Minutes of Procedure Committee: ____________________; Rule 803(24), April 20, 1989, pages 6-8; March 24, 1988, pages 2-6 and 15-16; December 3, 1987, pages 6-7; May 21, 1987, pages 6-7; Rule 803(5)(18)(19)(21)(25), December 3, 1987, pages 15-16; Rule 803, June 3, 1976, page 15; Rule 803(1), (2), January 29, 1976, page 19; Rule 803(3), January 29, 1976, page 19; October 1, 1975, page 7; Rule 803(4), (5), January 29, 1976, page 19; Rule 803(6), January 29, 1976, page 20; Rule 803(7), January 29, 1976, page 20; October 1, 1975, page 7; Rule 803(8), January 29, 1976, page 21; October 11, 1975, page 7; Rule 803(9), (10), (12), (13), (14), (15), (16), (17), (18), (20), (21), January 29, 1976, pages 21-23; Rule 803(11), June 3, 1976, page 15; January 29, 1976, page 22; Rule 803(19), June 3, 1976, page 15; January 29, 1976, page 23; Rule 803(22), January 29, 1976, pages 23, 24; October 1, 1975, page 7; Rule 803(23), January 29, 1976, page 24; Rule 803(24), April 8, 1976, pages 8a, 9; January 29, 1976, page 24. Rule 803, Federal Rules of Evidence; Rule 803, SBAND proposal.
STATUTES AFFECTED:
SUPERSEDED: §§ 31-09-11, 31-09-12, NDCC.
CONSIDERED: §§ 2-06-05, 4-09-05, 4-09-07, 4-10-03, 4-10-12, 4-11-15, 4-11-19, 4-11-20, 4-22-15, 6-03-32, 6-08-10, 7-01-12, 7-08-02, 7-08-03, 10-04-19, 10-15-08, 10-19-55, 10-23-13, 10-24-31, 10-28-09, 11-11-38, 11-13-08, 11-15-16, 11-18-09, 11-20-01, 11-20-05, 11-20-13, 12-44-18, 14-03-24, 15-29-10, 15-51-10, 16-13-11, 16-20-08, 19-01-10, 19-03.1-37, 19-20.1-17, 23-02-40, 23-24-04, 24-07-15, 26-08-07, 26-12-09, 26-12-13, 26-12-15, 26-15-04, 26-15-26, 26-29-12, 28-20-31, 28-23-12, 31-04-05, 31-04-06, 31-08-01, 31-08-02, 31-08-05, 32-19-26, 32-25-03, 32-25-04, 33-01-13, 33-04-17, 35-21-05, 35-22-11, 35-22-16, 36-09-08, 36-09-20, 39-20-07, 40-01-10, 40-02-12, 40-04-06, 40-11-08, 40-16-09, 40-42-01, 40-58-08, 41-03-66, 42-02-07, 43-01-21, 43-01-22, 43-06-07, 43-07-13, 40-10-07, 43-11-10, 43-13-12, 43-17-11, 43-19.1-10, 43-19.1-20, 43-28-08, 43-28-16, 43-29-04, 43-36-17, 44-06-08, 44-06-09, 47-19-06, 47-19-12, 47-19-23, 47-19-24, 47-19-45, 48-02-15, 49-01-14, 49-06-14, 49-19-16, 57-24-29, 57-38-46, 61-03-06, 61-04-25, 61-05-19, 61-16-06, NDCC.