(c) 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) Present sense impression. A statement
describing or explaining an event or condition made while declarant was
perceiving the event or condition or immediately thereafter.
(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 described medical history, or past or present
symptoms, pain, or sensation, or the inception or general character of the
cause or external source thereof insofar as reasonably pertinent to diagnosis
or treatment.
(5) Recorded
recollection. A memorandum or record concerning a matter about which a witness
once had knowledge but now has insufficient recollection to enable the witness
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. If admitted, the memorandum may be read into evidence, but
may not itself be received as an exhibit unless offered by an adverse
party.
(6) Records of regularly
conducted activity. A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses, 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, unless the source of information or the method of
circumstances of preparation indicate lack of trustworthiness. The term
business as used in this paragraph includes the Armed Forces, a business,
institution, association, profession, occupation, and calling of every kind,
whether or not conducted for profit. Among those memoranda, reports, records,
or data compilations normally admissible pursuant to this paragraph are
enlistment papers, physical examination papers, outline-figure and fingerprint
cards, forensic laboratory reports, chain of custody documents, morning reports
and other personnel accountability documents, service records, officer and
enlisted qualification records, logs, unit personnel diaries, individual
equipment records, daily strength records of prisoners, and rosters of
prisoners.
(7) Absence of entry in
records kept in accordance with the provisions of paragraph (6) of this
subdivision. 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 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 office 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, matters observed by police officers and
other personnel acting in a law enforcement capacity; or
(iii) against the government, 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. Notwithstanding subparagraph (ii) of this paragraph, the
following are admissible under this paragraph as a record of a fact or event if
made by a person within the scope of the person's official duties and those
duties included a duty to know or to ascertain through appropriate and
trustworthy channels of information the truth of the fact or event and to
record such fact or event: enlistment papers, physical examination papers,
outline-figure and fingerprint cards, forensic laboratory reports, chain of
custody documents, morning reports and other personnel accountability
documents, service records, officer and enlisted qualification records, records
of court-martial convictions, logs, unit personnel diaries, individual
equipment records, guard reports, daily strength records of prisoners, and
rosters of prisoners.
(9) Records of vital statistics. Record 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.
(10) Absence of public record
or entry. 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 Mil. R. Evid. 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 obtained 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 time thereafter.
(13) Family records. Statements of facts
concerning personal or family history contained in family Bibles, genealogies,
charts, engraving on rings, inscription on family portraits, engraving on urns,
crypts, or tombstones, or the like.
(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 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.
(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.
(16) Statements in ancient documents.
Statements in a document in existence 20 years or more the authenticity of
which is established.
(17) Market
reports, commercial publications. Market quotations, tabulations, directories,
lists (including government price lists), or other published compilations
generally used and relied upon by the public or by persons in particular
occupations.
(18) Learned
treatises. To the extent called to the attention of an expert witness upon
cross-examination or relied upon by the expert 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 concerning personal or family
history. Reputation among members of the person's family by blood, adoption, or
marriage, or among the person's associates, or in the community, concerning the
person's birth, adoption, marriage, divorce, death, legitamacy, relationship by
blood, adoption, or marriage, ancestry, or other similar fact of the person's
personal or family history.
(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.
(21) Reputation as to character. Reputation
of a person's character among the person's 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 (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 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) 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.
(24) 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.
However, 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, the intention to offer the
statement and the particulars of it, including the name and address of the
declarant.