27-803 Rule 803. Hearsay exceptions; enumerated; availability of declarant immaterial. - Nebraska Statutes

27-803. Rule 803. Hearsay exceptions; enumerated; availability of declarant immaterial.Subject to the provisions of section 27-403, the following are not excluded by the hearsay rule, even though the declarant is available as a witness:(1) 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;(2) 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;(3) 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;(4) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him or her to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his or her memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party;(5) A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, other than opinions or diagnoses, made at or near the time of such acts, events, or conditions, in the course of a regularly conducted activity, if it was the regular course of such activity to make such memorandum, report, record, or data compilation at the time of such act, event, or condition, or within a reasonable time thereafter, as shown by the testimony of the custodian or other qualified witness unless the source of information or method or circumstances of preparation indicate lack of trustworthiness. The circumstances of the making of such memorandum, report, record, or data compilation, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight;(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 subdivision (5) of this section 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 a lack of trustworthiness;(7) Upon reasonable notice to the opposing party prior to trial, records, reports, statements, or data compilations made by a public official or agency of facts required to be observed and recorded pursuant to a duty imposed by law, unless the sources of information or the method or circumstances of the investigation are shown by the opposing party to indicate a lack of trustworthiness;(8) 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;(9) To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence 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 section 27-902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation or entry;(10) 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;(11) Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a member of the clergy, 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;(12) Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of 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;(13) The record of a document 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, if the record is a record of a public office and an applicable statute authorized the recording of documents of that kind in that office;(14) 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;(15) Statements in a document in existence thirty years or more whose authenticity is established;(16) Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations;(17) 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, to the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination. If admitted, the statements may be read into evidence but may not be received as exhibits;(18) Reputation among members of his or her family by blood, adoption, or marriage, or among his or her 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 or her personal or family history;(19) 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;(20) Reputation of a person's character among his or her associates or in the community;(21) Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of 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 a person other than the accused. The pendency of an appeal may be shown but does not affect admissibility;(22) 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; and(23) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, 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 which 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. A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his or her intention to offer the statement and the particulars of it, including the name and address of the declarant. SourceLaws 1975, LB 279, § 57; Laws 1999, LB 64, § 1.Annotations1. Excited utterance2. State of mind3. Business record4. Medical diagnosis5. Residual hearsay6. Miscellaneous1. Excited utteranceWhere victim's statement appeared to be result of pressure exerted on her, necessary element of spontaneity was absent and statement was not admissible as excited utterance. State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994).For a statement to qualify as an excited utterance under subsection (1) of this section, (1) there must have been a startling event, (2) the statement must relate to the event, and (3) the statement must have been made by the declarant while under the stress of the event. State v. Tlamka, 244 Neb. 670, 508 N.W.2d 846 (1993); State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Lee, 216 Neb. 63, 341 N.W.2d 600 (1983).For hearsay to be admissible as an excited utterance under subsection (1) of this section, statements need not be made contemporaneously with the exciting cause but may be made subsequent to it, provided there has not been time for the exciting influence to lose its sway and be dissipated. The key requirement is spontaneity, a showing that the statement was made without time for conscious reflection. The true test is not when the exclamation was made, but whether under all the circumstances of the particular exclamation the speaker may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue. State v. Tlamka, 244 Neb. 670, 508 N.W.2d 846 (1993).A statement made by victim exhibiting observable manifestations of stress qualified as an excited utterance although elapsed time between stressful event and statement was not established. The underlying theory of the excited utterance exception is that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).Because there was no showing that minor's statements were made while she was under the stress of a startling event, the trial court abused its discretion in admitting testimony of the babysitter as to what the minor told her. In re Interest of D.P.Y. and J.L.Y., 239 Neb. 647, 477 N.W.2d 573 (1991).Statements made to police officer at scene of a crime resulting from young woman encouraging the speaker to cooperate did not fall within excited utterance exception to the hearsay rule. State v. Martin, 239 Neb. 339, 476 N.W.2d 536 (1991).Under subsection (1) of this section, spontaneity is a key requirement for the excited utterance exception and is demonstrated by showing the statement was made without time for conscious reflection. State v. Sullivan, 236 Neb. 344, 461 N.W.2d 84 (1990).A statement by a 4-year-old witness regarding child abuse and murder made in response to police questioning nearly 2 days after the events in question constitutes an excited utterance. The statement is also admissible under the residual hearsay exception. Under the excited utterance hearsay exception, a declarant's nervous state is relevant to the issue of whether the statement was made by the declarant while under the stress of the event. Under this exception, the crucial consideration is whether there has been time for conscious reflection. State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990).The determination as to the admissibility of an excited utterance generally rests within the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In the case of small children, generally, the stress of a sexual assault is present for some time after an assault occurs, and the key requirement for admissibility is spontaneity. In re Interest of R.A. and V.A., 225 Neb. 157, 403 N.W.2d 357 (1987).A statement made by a young boy to his mother shortly after a sexual assault is an excited utterance under subsection (1) of this section and thus an exception to the bar against hearsay. State v. Gonzales, 219 Neb. 846, 366 N.W.2d 775 (1985).A statement to police officers made by a 7-year-old girl shortly after she was sexually assaulted and relating to the sexual assault, qualifies as an excited utterance. State v. Red Feather, 205 Neb. 734, 289 N.W.2d 768 (1980).A spontaneous statement made at the time of the event by one who has personal knowledge of the subject matter of the statement may be admissible under this section if the statutory conditions precedent to admission are met. State v. Reed, 201 Neb. 800, 272 N.W.2d 759 (1978).Pursuant to subsection (1) of this section, statements made by a victim of sexual assault to a neighbor after the victim walked several blocks to the neighbor's house and was visibly shaken and scared were admissible under this section. State v. Sanchez-Lahora, 9 Neb. App. 621, 616 N.W.2d 810 (2000).2. State of mindPursuant to subsection (2) of this section, the state-of-mind exception to the hearsay rule allows the admission of extrajudicial statements to show the state of mind of the declarant only if the declarant's then existing state of mind is a material issue in the case. State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997).Victim's extrajudicial declarations of fear of the defendant are admissible under the state of mind exception to the hearsay rule only if there is a manifest need for such evidence and it is relevant to a material issue in the case. The state of mind exception to the hearsay rule allows the admission of extrajudicial statements to show the state of mind of the declarant if the state of mind of the declarant at the time the statement was made is an issue in the case. State v. Drinkwalter, 242 Neb. 40, 493 N.W.2d 319 (1992).As specifically provided under subsection (2) of this section, hearsay statements of memory offered to prove the fact remembered are not admissible under the state-of-mind exception. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).A declaration offered to show the defendant's state of mind which is too remote in point of time should be excluded as lacking probative value. State v. Harrison, 221 Neb. 521, 378 N.W.2d 199 (1985).Hearsay statements made immediately prior to an incident which resulted in the death of the declarant are admissible as a statement of declarant's then existing state of mind and emotion to prove declarant's intent, plan, motive, or conduct. State v. Smith, 202 Neb. 501, 276 N.W.2d 104 (1979).Where a statement is made indicating an intention to pay rent, the statement qualifies as a declaration of state of mind and is an exception to the hearsay rule. Barnes v. Milligan, 200 Neb. 450, 264 N.W.2d 186 (1978).Statement of intent related to the destination and purpose of a journey admissible only if made at or near time of departure. Fite v. Ammco Tools, Inc., 199 Neb. 353, 258 N.W.2d 922 (1977).Offered evidence of an utterance by accused suggesting his state of mind or emotion, held not admissible as exception to hearsay rule where such state of mind was not a material fact. State v. Pelton, 197 Neb. 412, 249 N.W.2d 484 (1977).3. Business recordComputerized printouts that are merely the visual counterparts to routine electronic business records are usually hearsay, but they can be admissible under the business records exception. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).The party seeking to admit a business record under the business records exception to the hearsay rule bears the burden of establishing foundation under a three-part test. First, the proponent must establish that the activity recorded is of a type that regularly occurs in the course of the business' day-to-day activities. Second, the proponent must establish that the record was made as part of a regular business practice at or near the time of the event recorded. Third, the proponent must authenticate the record by a custodian or other qualified witness. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).The reason for excluding business records from the hearsay rule is their circumstantial guarantees of trustworthiness. The business records exception contemplates that certain events are regularly recorded as routine reflections of the day-to-day operations of a business so that the character of the records and their earmarks of reliability import trustworthiness. Thus, the recordation becomes a reliable recitation of the fact. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).When computer-stored records satisfy the business records exception to the hearsay rule, preparing printouts for evidentiary purposes does not deprive the printouts of their character as business records. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).For admissibility of a document as a business record, first, the activity recorded must be a type which regularly occurs in the course of the business' day-to-day activity. Second, the record must have been made as part of a regular business practice at or near the time of the event recorded. Third, the record must be authenticated by a custodian or other qualified witness. State v. Wright, 231 Neb. 410, 436 N.W.2d 205 (1989); Chalupa v. Hartford Fire Ins. Co., 217 Neb. 662, 350 N.W.2d 541 (1984).Foundational requirements for admitting a document under the business records exception to the hearsay rule are set out in this case. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).A computer printout, disregarding pencil notations put on the document after the record was prepared, was admissible in evidence as a business record. Richards v. Arthaloney, 216 Neb. 11, 342 N.W.2d 642 (1983).Because there was sufficient foundational testimony, admission of bank records under this section did not violate Neb. Const., Art. I, § 11. To admit bank records under this section, testimony of each individual teller or processor who handled the records is not necessary, but records may be admitted through foundational testimony of knowledgeable witnesses. State v. Spaulding, 211 Neb. 575, 319 N.W.2d 449 (1982).The supervisor of all customer billing records was an appropriate witness with regard to explaining the compilation of data and conditions of how the billings were prepared, and his testimony was admissible as a qualified lay witness. City of Lincoln v. Bud Moore, Inc., 210 Neb. 647, 316 N.W.2d 590 (1982).Subsection (5) of this section does not require a party offering business records to prove that the recordkeeping system is standard within the industry. State v. Ford, 1 Neb. App. 575, 501 N.W.2d 318 (1993).4. Medical diagnosisStatements of a foster parent were properly admissible under subsection (3), where the evidence demonstrated that the statements were made to assist in the provision of medical diagnosis or treatment, that the statements were reasonably pertinent to such diagnosis and treatment, and that a doctor would reasonably rely on such statements. In re Interest of B.R. et al., 270 Neb. 685, 708 N.W.2d 586 (2005).Pursuant to subsection (17) of this section, duly admitted learned treatises do not independently establish the standard of care in a medical malpractice action. They are merely evidence of the standard of care to the extent relied upon by the expert witness in direct examination, or called to the attention of the expert witness upon cross-examination. Breeden v. Anesthesia West, 265 Neb. 356, 656 N.W.2d 913 (2003).As a general rule, the hearsay exception found in subsection (3) of this section applies to persons seeking medical assistance from persons who are expected to provide some form of health care. The rationale for the hearsay exception found in subsection (3) of this section is that reliability is assured by the likelihood that the patient believes that the effectiveness of the treatment will depend on the accuracy of the information provided. Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 319 (1994).Statement made by victim to medical technicians which did not relate to diagnosis or treatment was not admissible under subsection (3) of this section. State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994).Child's statements relating to the source of sexual abuse are admissible as an exception to the hearsay rule when it is clear that the comments relate to a medical condition and are offered in the context of a medical examination and diagnosis. State v. Roenfeldt, 241 Neb. 30, 486 N.W.2d 197 (1992).Exculpatory statements made by an accused to a psychiatrist for diagnosis of accused's mental condition, insofar as they recite the accused's actions in relation to a crime, are not competent evidence of the truth of the statements. Statements are admissible only to show cause of mental condition and as are pertinent to diagnosis or treatment of mental condition. State v. Hardin, 212 Neb. 774, 326 N.W.2d 38 (1982).Statements made to an emergency room physician in the course of questioning to ascertain the nature and cause of injury are admissible under section 27-803(3). Where those statements were made by a 7-year-old girl, approximately an hour after she had been sexually assaulted, and while she was still upset, anxious, and crying, and the statements related to the assault, they are also admissible as excited utterances. State v. Red Feather, 205 Neb. 734, 289 N.W.2d 768 (1980).A therapist's testimony that she observed the defendant look astonished when he explained to the therapist he had been charged with sexually abusing a minor and that the defendant denied the abuse to the therapist did not qualify as an exception for medical diagnosis under subsection (3) of this section. State v. Egger, 8 Neb. App. 740, 601 N.W.2d 785 (1999).Where a treating physician testifying for the State as an expert witness in the prosecution of a sexual assault has restated to the jury the victim's version of the alleged assault, and where the victim is capable of telling the jury her version of the alleged assault, the State cannot use subsection (3) of this section as a means of allowing a psychiatrist testifying as a subsequent expert witness to once again restate to the jury the victim's version of the alleged assault. State v. White, 2 Neb. App. 106, 507 N.W.2d 654 (1993).Child sexual abuse victim's out-of-court statements, as restated at trial by emergency room physician who had treated the victim, identifying defendant as her abuser were admissible because the statements were made in the course of medical treatment for purposes of diagnosis. State v. Max, 1 Neb. App. 257, 492 N.W.2d 887 (1992).5. Residual hearsayIn determining whether a statement is admissible under the residual exception to the hearsay rule, a court considers five factors: (1) a statement's trustworthiness, (2) the materiality of the statement, (3) the probative importance of the statement, (4) the interests of justice, and (5) whether notice was given to an opponent. In order for a statement to be admitted under the residual exception, the statement's proponent must notify the adverse party of his or her intent to offer the statement, as well as the particulars of the statement, sufficiently in advance of trial, not during trial, to provide the adverse party with a fair opportunity to prepare to meet it. State v. Castor, 262 Neb. 423, 632 N.W.2d 298 (2001).Declarant's statement was inadmissible under subsection (22) of this section where record failed to establish declarant had personal knowledge regarding the subject matter of her testimony. State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).The residual hearsay exception is to be used rarely and only in exceptional circumstances. In connection with the residual hearsay exception, particularized guarantees of trustworthiness must be shown from the totality of the circumstances, which circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief. State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990).Under subsection (22) of this section, hearsay testimony may be admissible under certain conditions, provided adequate notice is given. The question of trustworthiness under subsection (22) of this section does not involve whether the witness is trustworthy, but, rather, involves whether the statement being reported by the witness is trustworthy. Although there is a distinction to be made between trustworthiness and credibility, the tests which are applied with regard to reviewing credibility must of necessity likewise apply with regard to trustworthiness. In re Estate of Severns, 217 Neb. 803, 352 N.W.2d 865 (1984).6. MiscellaneousUnder subsection (17) of this section, certain published treatises, periodicals, or pamphlets may be admissible, but the foundational requirements must still be met. Jackson v. Brotherhood's Relief & Comp. Fund, 273 Neb. 1013, 734 N.W.2d 739 (2007).Pursuant to subsection (23) of this section, reports may not be received in evidence for the purpose of a termination proceeding, nor relied upon by the court, unless they have been admitted without objection or brought within the provisions of this section as an exception to the hearsay rule. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003).Standard medical texts and other authorities may be used for the purpose of impeaching, contradicting, or discrediting a witness through cross-examination or during rebuttal testimony; however, such cannot be used as independent evidence of the opinions and theories advanced by the parties. Stang-Starr v. Byington, 248 Neb. 103, 532 N.W.2d 26 (1995).Under subsection (7) of this section, admission into evidence of "records, reports, statements or data compilations made by a public official or agency of facts required to be observed and recorded pursuant to a duty imposed by law" does not apply to investigative reports prepared by, or orders and determinations of probable cause issued by, the Nebraska Equal Opportunity Commission. Humphrey v. Nebraska Public Power Dist., 243 Neb. 872, 503 N.W.2d 211 (1993).Facts of the case held to be sufficient to place young child's statement as within the hearsay exceptions. State v. Roy, 214 Neb. 204, 333 N.W.2d 398 (1983).Taped interviews of an accused by a psychiatrist while the accused was under the influence of an inhibition-reducing drug in which the accused described observations of the crime charged did not fall within this exception. State v. Rowe, 210 Neb. 419, 315 N.W.2d 250 (1982).Somewhat similar provision in prior section construed. Laux v. Robinson, 195 Neb. 601, 239 N.W.2d 786 (1976).Under the circumstances surrounding alleged statements made by the declarant while sleeping, the statements, as testified to by the declarant's sibling, were not excited utterances admissible under subsection (1) of this section and did not contain sufficient indicia of reliability to be admissible under subsection (23) of this section. In re Interest of Jamie P., 12 Neb. App. 261, 670 N.W.2d 814 (2003).Pursuant to subsection (17) of this section, a videotape may be admissible pursuant to the learned treatise exception to the hearsay rule provided that sufficient foundation is laid for its admission. Hill v. Hill, 10 Neb. App. 570, 634 N.W.2d 811 (2001).Pursuant to the language of Nebraska's learned treatise exception to the hearsay rule, a learned treatise is only admissible in conjunction with testimony by an expert witness. Hill v. Hill, 10 Neb. App. 570, 634 N.W.2d 811 (2001).The proper foundation for admitting evidence as past recollection recorded under subsection (4) of this section should consist of a showing that (1) the witness has no present recollection of the facts, (2) the witness' memory is not refreshed upon reference to the document, (3) the document is an original memorandum made or adopted by the witness from personal observation, (4) the document was prepared or adopted by the witness contemporaneously with the event and was an accurate recording of the occurrence, and (5) the substance of the proffered writing is otherwise admissible. State v. Cervantes, 3 Neb. App. 95, 523 N.W.2d 532 (1994).