N. d. R. Evid. 803

As amended through March 18, 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 the event or condition.

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that the event or condition 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) or (12); and

(E) the opponent does not show that the source of information or 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) the opponent does not show that the possible source of the information or 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 activities;

(ii) a matter observed while under a legal duty to report, but, in a criminal case, not including a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

Before offering factual findings in evidence under this exception, a party must provide the opposing party a copy of the findings, or the portion that relates to the controversy. The opposing party may cross-examine under oath the person who prepared a record, statement or factual findings submitted under this exception, or any person furnishing information recorded in the record, statement or findings. If the person is unavailable for cross-examination, the record, statement, or findings may be admitted under this exception unless the court decides the opposing party would be prejudiced unfairly.

(9) Public Records of Vital Statistics. A record of a birth, fetal death, 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:

(A) the testimony or certification is admitted to prove that:

(i) the record or statement does not exist; or

(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice, unless the court sets a different time for the notice or the objection.

(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) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document's purpose, unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.

(16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, 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 or relied on by the expert on direct 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 a 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 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.

The pendency of an appeal or post-conviction proceeding may be shown but does not affect admissibility.

(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.

(24) Child's statement about sexual abuse. A statement by a child under the age of 12 years about sexual abuse of that child or witnessed by that child if:

(A) the trial court finds, after hearing on notice in advance of the trial of the sexual abuse issue, that the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness; and

(B) the child either:

(i) testifies at the trial; or

(ii) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.

(25) [Other Exceptions.] [Transferred to Rule 807 ]

N. d. R. Evid. 803

EXPLANATORY NOTE

Rule 803 was amended, effective 3/1/1990; 3/1/2000; 3/1/2014; 3/1/2016. Rule 803 is based on Fed.R.Ev. 803; 3/1/2019.

The last two sentences in paragraph (8) were derived from Sections 31-09-11 and 31-09-12, NDCC, which were superseded by these rules.

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.

Paragraph (22) provides in certain instances, evidence of a previous final judgment comes within a hearsay exception. The paragraph differs from its federal counterpart. The federal exception for pleas of nolo contendere has been deleted as that plea is not used in the state courts of North Dakota. The paragraph also was changed by adding post-conviction proceedings, like appeals, do not affect the admissibility of previous convictions.

It should also be noted these exceptions remove only the hearsay objection to evidence. Evidence of a past conviction sought to be introduced under paragraph (22) must also meet the requirements of N.D.R.Ev. 609.

Rule 803 was amended, effective 3/1/1990, to provide a hearsay exception for a child victim 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, effective3/1/2000, to follow the12/1/1997, federal amendment. The contents of Rule 803(25) are transferred to new Rule 807.

Rule 803 was amended, effective3/1/2014, in response to the12/1/2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

Paragraph (6)(D) was amended, effective 3/1/2014, to allow the foundation for admission of a record of a regularly conducted activity to be established by a certification that complies with Rule 902 (11) or (12).

Paragraphs (6), (7), and (8) were amended, effective 3/1/2016, to specifically place the burden of showing untrustworthiness of a record on the opponent of admission. The change is based on the December 2014 amendment to Fed.R.Ev. 803.

Paragraph (10) was amended, effective 3/1/2016, to follow the December 2013 amendments to Fed.R.Crim.P. 803.The amendment is intended to require a "notice and demand" procedure in criminal cases if the prosecution intends to introduce evidence by certificate.

Paragraph (16) was amended, effective _____________, to limit application of the ancient document exception to documents prepared before January 1, 1998. 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 cut-off date, then the hearsay exception will not apply to statements that were added in the alteration.

Paragraph (16) was amended December 11, 2018, effective 3/1/2019.

SOURCES: Supreme Court Conference Minutes of October 23 and 25, 1989 [Rule 803(24) ]. Joint Procedure Committee Minutes of January 25, 2018, pages 12-13; April 25-26, 2013, pages 18-21; January 31-February, 2013, pages 23-24;9/27/2012, page 22; Rule 803(25), September 24-25, 1998, page 4; April 30-5/1/1998, page 16; Rule 803(24),4/20/1989, pages 6-8;3/24/1988, pages 2-6 and 15-16;12/3/1987, pages 6-7;5/21/1987, pages 6-7; Rule 803(5)(18)(19)(21)(25),12/3/1987, pages 15-16; Rule 803,6/3/1976, page 15; Rule 803(1), (2),1/29/1976, page 19; Rule 803(3),1/29/1976, page 19;10/1/1975, page 7; Rule 803(4), (5),1/29/1976, page 19; Rule 803(6),1/29/1976, page 20; Rule 803(7),1/29/1976, page 20;10/1/1975, page 7; Rule 803(8),1/29/1976, page 21;10/1/1975, page 7; Rule 803(9), (10), (12), (13), (14), (15), (16), (17), (18), (20), (21),1/29/1976, pages 21-23; Rule 803(11),6/3/1976, page 15;1/29/1976, page 22; Rule 803(19),6/3/1976, page 15;1/29/1976, page 23; Rule 803(22),1/29/1976, pages 23, 24;10/1/1975, page 7; Rule 803(23),1/29/1976, page 24; Rule 803(24),4/8/1976, pages 8a, 9;1/29/1976, page 24. Fed.R.Ev. 803; Rule 803, SBAND proposal.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C. §§ 31-09-11, 31-09-12.

CONSIDERED: N.D.C.C. §§ 2-06-05, 4-22-15, 6-03-32, 6-08-10, 10-04-19, 10-15-08, 11-11-38, 11-13-08, 11-15-16, 11-18-09, 11-20-01, 11-20-05, 11-20-13, 14-03-24, 19-01-10, 19-03.1-37, 19-20.1-17, 23-24-04, 24-07-15, 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, 35-21-05, 35-22-11, 35-22-16, 39-20-07, 40-01-10, 40-02-12, 40-04-06, 40-11-08, 40-16-09, 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, 47-19-06, 47-19-12, 47-19-23, 47-19-24, 47-19-45, 49-01-14, 49-06-14, 49-19-16, 57-38-46, 61-03-06, 61-04-25, 61-05-19, 61-16-06.

N.D.R.Ev. 609 (Impeachment by Evidence of a Criminal Conviction); N.D.R.Ev. 807 (Residual Exception); N.D.R.Crim.P. 11 (Pleas); N.D.R.Crim.P. 12 (Pleadings and Pretrial Motions).