Me. R. Evid. 803

As amended through November 25, 2024

Rule 803 - Exceptions to the Rule against Hearsay- Regardless of Whether the Declarant Is Available As a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1)Present sense impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

(2)Excited utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

(3)Then-existing mental, emotional, or physical condition. A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.

(4)Statement made for medical diagnosis or treatment. A statement that:

(A) Is made for-and is reasonably pertinent to-medical diagnosis or treatment; and

(B) Describes medical history; past or present symptoms or sensations; their inception; or their general cause.

(5)Recorded recollection. A record that:

(A) Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) Was made or adopted by the witness when the matter was fresh in the witness's memory; and

(C) Accurately reflects the witness's knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

(6)Records of a regularly conducted activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) The record was made at or near the time by-or from information transmitted by-someone with knowledge;

(B) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) Making the record was a regular practice of that activity;

(D) All these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11), Rule 902(12) or with a statute permitting certification; and

(E) The opponent does not show that the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

(7)Absence of a record of a regularly conducted activity. Evidence that a matter is not included in a record described in paragraph (6) if:

(A) The evidence is admitted to prove that the matter did not occur or exist;

(B) A record was regularly kept for a matter of that kind; and

(C) Neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.

(8)Public records. A record or statement of a public office if:

(A) It sets out:

(i) The office's regularly conducted and regularly recorded activities;

(ii) A matter observed while under a legal duty to report; or

(iii) Factual findings from a legally authorized investigation.

(B) The following are not within this exception to the hearsay rule:

(i) Investigative reports by police and other law enforcement personnel;

(ii) Investigative reports prepared by or for a government, a public office or an agency when offered by it in a case in which it is a party;

(iii) Factual findings offered by the state in a criminal case;

(iv) Factual findings resulting from special investigation of a particular complaint, case, or incident; and

(v) Any matter as to which the sources of information or other circumstances indicate lack of trustworthiness.

(9)Public records of vital statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

(10)Absence of a public record. Testimony-or a certification under Rule 902 -that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:

(A) The record or statement does not exist; or

(B) A matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.

(11)Records of religious organizations concerning personal or family history. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12)Certificates of marriage, baptism, and similar ceremonies. A statement of fact contained in a certificate:

(A) Made by a person who is authorized by a religious organization or by law to perform the act certified;

(B) Attesting that the person performed a marriage or similar ceremony or administered a sacrament; and (C) Purporting to have been issued at the time of the act or within a reasonable time after it.

(13)Family records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

(14)Records of documents that affect an interest in property. The record of a document that purports to establish or affect an interest in property if:

(A) The record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;

(B) The record is kept in a public office; and

(C) A statute authorizes recording documents of that kind in that office.

(15)RESERVED.

(16)Statements in ancient documents. A statement in a document that is at least 20 years old and whose authenticity is established.

(17)Market reports and similar commercial publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

(18)Statements in learned treatises, periodicals, or pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

(A) The statement is called to the attention of an expert witness on cross-examination; and

(B) The publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

(19)Reputation concerning personal or family history. A reputation among a person's family by blood, adoption, or marriage-or among the person's associates or in the community-concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of the person's personal or family history.

(20)Reputation concerning boundaries or general history. A reputation in a community-arising before the controversy-concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.

(21)Reputation concerning character. A reputation among a person's associates or in the community concerning the person's character.

(22)Judgment of a previous conviction. Evidence of a final judgment of conviction if:

(A) The judgment was entered after a trial or guilty plea;

(B) The conviction was for a crime punishable by death or by imprisonment for more than a year;

(C) The evidence is admitted to prove any fact essential to the judgment; and

(D) When offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.

(23)Judgments involving personal, family, or general history, or a boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:

(A) Was essential to the judgment; and

(B) Could be proved by evidence of reputation.

Me. R. Evid. 803

Adopted effective 1/1/2015; amended effective 8/1/2018.

Maine Restyling Note [November 2014]

Restyled Rule 803 preserves the substantive differences between the Maine and the Federal Rules. Maine does not have any residual hearsay exception.*

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

*See Rule 807 of the Federal Rules of Evidence.

Advisory Committee Note - August 2018

This amendment revises subdivision (6) of Rule 803 to follow a corresponding 2014 amendment to Federal Rules of Evidence 803(6) and to clarify that, while the proponent has the burden of establishing the foundational elements listed in sections (A)-(D), the proponent need not initially show that the source of information or circumstances of its preparation indicate a lack of trustworthiness. It is up to the opponent to show that the source of information or the method or circumstances of preparation of the record indicate a lack of trustworthiness.

This is not a substantive change. In practice, parties and courts seem to have assumed that the language "neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness" in existing Rule 803(6) meant that the burden of demonstrating these contrary indications is with the opponent. Although this proviso has been applied in cases reviewed by the Law Court, see, e.g., Adamatic v. Progressive Baking Co., Inc., 667 A.2d 871 (Me. 1995), there are no known Law Court decisions discussing which party has either the burden of going forward or the risk of nonpersuasion.

The Advisory Committee Note to the 2014 Federal 803(6) amendment states:

The Rule has been amended to clarify 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 that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. While most courts have imposed that burden on the opponent, some have not. It is appropriate to impose this burden on the opponent, as the basic admissibility requirements are sufficient to establish a presumption that the record is reliable.

The opponent, to meet 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. A determination of untrustworthiness necessarily depends on the circumstances.

If lack of trustworthiness of a proffered business record is asserted by an opposing party on voir dire, by the proffer of evidence, or by argument, the court can take into account the parties' relative access to information in determining whether the objecting party has carried its burden of showing lack of trustworthiness.