(a) Statement. A statement is (1) an oral or written
assertion, or (2) nonverbal conduct of a person, if it is intended by the person
as an assertion.
(b) Declarant. A declarant is a person who makes a
statement.
(c) Hearsay. Hearsay is a statement, other than one made by
the declarant while testifying at the hearing, offered in evidence to prove the
truth of the matter asserted.
(d) Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the
hearing and is subject to cross-examination concerning the statement, and the
statement is--
(i) Inconsistent with the declarant's testimony, or
(ii) Consistent with the declarant's testimony and is offered to rebut an
express or implied charge
against the declarant of recent fabrication or improper influence or motive, or
(iii) One of identification of a person made after perceiving the person; or
(2) Admission by party-opponent. The statement is offered against a
party and is--
(i) The party's own statement in either an individual or a representative
capacity, or
(ii) A statement of which the party has manifested an adoption or belief in
its truth, or
(iii) A statement by a person authorized by the party to make a statement
concerning the subject, or
(iv) A statement by the party's agent or servant concerning a matter within
the scope of the agency or employment, made during the existence of the
relationship, or
(v) A statement by a co-conspirator of a party during the course and in
furtherance of the conspiracy.
Hearsay is not admissible except as provided by these rules, or by rules or
regulations of the administrative agency prescribed pursuant to statutory
authority, or pursuant to executive order, or by Act of Congress.
(a) 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 the 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 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.
(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' memory and to reflect that knowledge correctly.
(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 or circumstances of preparation indicate lack of
trustworthiness. The term business as used in this paragraph includes
business, institution, association, profession, occupation, and calling of every
kind, whether or not conducted for profit.
(7) Absence of entry in records kept in accordance with the provisions
of paragraph (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 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, or
(iii) 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.
(9) Records of vital statistics. 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.
(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 §
18.902, or testimony, that diligent search failed to disclose the record,
report, statement, or date 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 contained 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 reasonable time thereafter.
(13) Family records. Statements of fact concerning 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.
(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 twenty years or more the authenticity of which is established.
(17) Market reports, commercial publications. Market quotations,
tabulations, lists, directories, 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 witness 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 official notice.
(19) Reputation concerning personal or family history. Reputation
among members of a person's family by blood, adoption, or marriage, or among a
person's 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 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 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. 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 to the aforementioned hearsay exceptions, if the judge
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 hearing 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.
(25) Self-authentication. The self-authentication of documents and
other items as provided in § 18.902.
(26) Bills, estimates and reports. In actions involving injury,
illness, disease, death, disability, or physical or mental impairment, or damage
to property, the following bills, estimates, and reports as relevant to prove
the value and reasonableness of the charges for services, labor and materials
stated therein and, where applicable, the necessity for furnishing the same,
unless the sources of information or other circumstances indicate lack of
trustworthiness, provided that a copy of said bill, estimate, or report has been
served upon the adverse party sufficiently in advance of the hearing to provide
the adverse party with a fair opportunity to prepare to object or meet it:
(i) Hospital bills on the official letterhead or billhead of the hospital,
when dated and itemized.
(ii) Bills of doctors and dentists, when dated and containing a statement
showing the date of each visit and the charge therefor.
(iii) Bills of registered nurses, licensed practical nurses and physical
therapists, or other licensed health care providers when dated and containing an
itemized statement of the days and hours of service and charges therefor.
(iv) Bills for medicine, eyeglasses, prosthetic device, medical belts or
similar items, when dated and itemized.
(v) Property repair bills or estimates, when dated and itemized, setting
forth the charges for labor and material. In the case of an estimate, the party
intending to offer the estimate shall forward with his notice to the adverse
party, together with a copy of the estimate, a statement indicating whether or
not the property was repaired, and, if so, whether the estimated repairs were
made in full or in part and by whom, the cost thereof, together with a copy of
the bill therefore.
(vi) Reports of past earnings, or of the rate of earnings and time lost from
work or lost compensation, prepared by an employer on official letterhead, when
dated and itemized. The adverse party may not dispute the authenticity, the
value or reasonableness of such charges, the necessity therefore or the accuracy
of the report, unless the adverse party files and serves written objection
thereto sufficiently in advance of the hearing stating the objections, and the
grounds thereof, that the adverse party will make if the bill, estimate, or
reports is offered at the time of the hearing. An adverse party may call the
author of the bill, estimate, or report as a witness and examine the witness as
if under cross-examination.
(27) Medical reports. In actions involving injury, illness, disease,
death, disability, or physical or mental impairment, doctor, hospital,
laboratory and other medical reports, made for purposes of medical treatment,
unless the sources of information or other circumstances indicate lack of
trustworthiness, provided that a copy of the report has been filed and served
upon the adverse party sufficiently in advance of the hearing to provide the
adverse party with a fair opportunity to prepare to object or meet it. The
adverse party may not object to the admissibility of the report unless the
adverse party files and serves written objection thereto sufficiently in advance
of the hearing stating the objections, and the grounds therefor, that the
adverse party will make if the report is offered at the time of the hearing. An
adverse party may call the author of the medical report as a witness and examine
the witness as if under cross-examination.
(28) Written reports of expert witnesses. Written reports of an
expert witness prepared with a view toward litigation, including but not limited
to a diagnostic report of a physician, including inferences and opinions, when
on official letterhead, when dated, when including a statement of the expert's
qualifications, when including a summary of experience as an expert witness in
litigation, when including the basic facts, data, and opinions forming the basis
of the inferences or opinions, and when including the reasons for or explanation
of the inferences and opinions, so far as admissible under rules of evidence
applied as though the witness was then present and testifying, unless the
sources of information or the method or circumstances of preparation indicate
lack of trustworthiness, provided that a copy of the report has been filed and
served upon the adverse party sufficiently in advance of the hearing to provide
the adverse party with a fair opportunity to prepare to object or meet it. The
adverse party may not object to the admissibility of the report unless the
adverse party files and serves written objection thereto sufficiently in advance
of the hearing stating the objections, and the grounds therefor, that the
adverse party will make if the report is offered at the time of the hearing. An
adverse party may call the expert as a witness and examine the witness as if
under cross-examination.
(29) Written statements of lay witnesses. Written statements of a
lay witness made under oath or affirmation and subject to the penalty of
perjury, so far as admissible under the rules of evidence applied as though the
witness was then present and testifying, unless the sources of information or
the method or circumstances of preparation indicate lack of trustworthiness
provided that (i) a copy of the written statement has been filed and served upon
the adverse party sufficiently in advance of the hearing to provide the adverse
party with a fair opportunity to prepare to object or meet it, and (ii) if the
declarant is reasonably available as a witness, as determined by the judge, no
adverse party has sufficiently in advance of the hearing filed and served upon
the noticing party a written demand that the declarant be produced in person to
testify at the hearing. An adverse party may call the declarant as a witness and
examine the witness as if under cross-examination.
(30) Deposition testimony. Testimony given as a witness in a
deposition taken in compliance with law in the course of the same proceeding, so
far as admissible under the rules of evidence applied as though the witness was
then present and testifying, if the party against whom the testimony is now
offered had an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination, provided that a notice of intention to
offer the deposition in evidence, together with a copy thereof if not otherwise
previously provided, has been served upon the adverse party sufficiently in
advance of the hearing to provide the adverse party with a fair opportunity to
prepare to object or meet it. An adverse party may call the deponent as a
witness and examine the witness as if under cross-examination.
(a) Definition of unavailability. Unavailability as a witness
includes situations in which the declarant:
(1) Is exempted by ruling of the judge on the ground of privilege from
testifying concerning the subject matter of the declarant's statement; or
(2) Persists in refusing to testify concerning the subject matter of the
declarant's statement despite an order of the judge to do so; or
(3) Testifies to a lack of memory of the subject matter of the declarant's
statement; or
(4) Is unable to be present or to testify at the hearing because of death or
then existing physical or mental illness or infirmity; or
(5) Is absent from the hearing and the proponent of a statement has been
unable to procure the declarant's attendance (or in the case of a hearsay
exception under paragraph (b) (2), (3), or (4) of this section, the declarant's
attendance or testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal, claim of
lack of memory, inability, or absence is due to the procurement or wrongdoing of
the proponent of a statement for the purpose of preventing the witness from
attending or testifying.
(b) Hearsay exceptions. The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another
hearing of the same or a different proceeding, or in a deposition taken in
compliance with law in the course of the same or another proceeding, if the
party against whom the testimony is now offered, or a predecessor in interest,
had an opportunity and similar motive to develop the testimony by direct, cross,
or redirect examination.
(2) Statement under belief of impending death. A statement
made by a declarant while believing that the declarant's death was imminent,
concerning the cause or circumstances of what the declarant believed to be
impending death. (3) Statement against interest.
A statement which was at the time of its making so far contrary to the
declarant's pecuniary or proprietary interest, or so far tended to subject the
declarant to civil or criminal liability, or to render invalid a claim by the
declarant against another, that a reasonable person in the declarant's position
would not have made the statement unless believing it to be true.
(4) Statement of personal or family history. (i) A statement
concerning the declarant's own birth, adoption, marriage, divorce, legitimacy,
relationship by blood, adoption, or marriage, ancestry, or other similar fact of
personal or family history, even though declarant had no means of acquiring
personal knowledge of the matter stated; or
(ii) A statement concerning the foregoing matters, and death also, of
another person, if the declarant was related to the other by blood, adoption, or
marriage or was so intimately associated with the other's family as to be likely
to have accurate information concerning the matter declared.
(5) Other exceptions. A statement not specifically covered by any of
the foregoing exceptions but having equivalent circumstantial guarantees of
trustworthiness to the aforementioned hearsay exceptions, if the judge
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 hearing 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.
Hearsay included within hearsay is not excluded under the hearsay rule if
each part of the combined statements conforms with an exception to the hearsay
rule provided in these rules.
When a hearsay statement, or a statement defined in §
18.801(d)(2), (iii), (iv), or (v), has been admitted in evidence, the
credibility of the declarant may be attacked, and if attacked may be supported,
by any evidence which would be admissible for those purposes if declarant had
testified as a witness. Evidence of a statement or conduct by the declarant at
any time, inconsistent with the declarant's hearsay statement, is not subject to
any requirement that the declarant may have been afforded an opportunity to deny
or explain. If the party against whom a hearsay statement has been admitted
calls the declarant as a witness, the party is entitled to examine the declarant
on the statement as if under cross-examination.
(a) General provision. The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what its
proponent claims.
(b) Illustrations. By way of illustration only, and not by way of
limitation, the following are examples of authentication or identification
conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is
what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the
genuineness of handwriting, based upon familiarity not acquired for purposes of
litigation.
(3) Comparison by judge or expert witness. Comparison by the judge
as trier of fact or by expert witnesses with specimens which have been
authenticated.
(4) Distinctive characteristics and the like. Appearance, contents,
substance, internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard
firsthand or through mechanical or electronic transmission or recording, by
opinion based upon hearing the voice at any time under circumstances connecting
it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence
that a call was made to the number assigned at the time by the telephone company
to a particular person or business, if--
(i) In the case of a person, circumstances, including self-identification,
show the person answering to be the one called, or
(ii) In the case of a business, the call was made to a place of business and
the conversation related to business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by
law to be recorded or filed and in fact recorded or filed in a public office, or
a purported public record, report, statement, or data compilation, in any form,
is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document
or data compilation, in any form,
(i) Is in such condition as to create no suspicion concerning its
authenticity,
(ii) Was in a place where it, if authentic, would likely be, and
(iii) Has been in existence 20 years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used
to produce a result and showing that the process or system produces an accurate
result.
(10) Methods provided by statute or rule. Any method of
authentication or identification provided by Act of Congress, or by rule or
regulation prescribed by the administrative agency pursuant to statutory
authority, or pursuant to executive order.
(a) Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to the following:
(1) Domestic public documents under seal. A document bearing a seal
purporting to be that of the United States, or of any State, district,
Commonwealth, territory, or insular possession thereof, or the Panama Canal
Zone, or the Trust Territory of the Pacific Islands, or of a political
subdivision, department, officer, or agency thereof, and a signature purporting
to be an attestation or execution.
(2) Domestic public documents not under seal. A document purporting
to bear the signature in the official capacity of an officer or employee of any
entity included in paragraph (a)(1) of this section, having no seal, if a public
officer having a seal and having official duties in the district or political
subdivision of the officer or employee certifies under seal that the signer has
the official capacity and that the signature is genuine.
(3) Foreign public documents. A document purporting to be executed
or attested in an official capacity by a person authorized by the laws of a
foreign country to make the execution or attestation, and accompanied by a final
certification as to the genuineness of the signature and official position--
(i) Of the executing or attesting person, or
(ii) Of any foreign official whose certificate of genuineness of signature
and official position relates to the execution or attestation or is in a chain
of certificates of genuineness of signature and official position relating to
the execution or attestation. A final certification may be made by a secretary
of embassy or legation, consul, vice consul, or consular agent of the United
States, or a diplomatic or consular official of the foreign country assigned or
accredited to the United States. If reasonable opportunity has been given to all
parties to investigate the authenticity and accuracy of official documents, the
judge may, for good cause shown, order that they be treated as presumptively
authentic without final certification or permit them to be evidenced by an
attested summary with or without final certification.
(4) Certified copies of public records. A copy of an official record
or report or entry therein, or of a document authorized by law to be recorded or
filed and actually recorded or filed in a public office, including data
compilations in any form, certified as correct by the custodian or other person
authorized to make the certification, by certificate complying with paragraph
(a) (1), (2), or (3) of this section, with any Act of Congress, or with any rule
or regulation prescribed by the administrative agency pursuant to statutory
authority, or pursuant to executive order.
(5) Official publications. Books, pamphlets, or other publications
purporting to be issued by public authority.
(6) Newspapers and periodicals. Printed materials purporting to be
newspapers or periodicals.
(7) Trade inscriptions and the like. Inscriptions, signs, tags, or
labels purporting to have been affixed in the course of business and indicating
ownership, control, or origin.
(8) Acknowledged documents. Documents accompanied by a certificate
of acknowledgment executed in the manner provided by law by a notary public or
other officer authorized by law to take acknowledgments.
(9) Commercial paper and related documents. Commercial paper,
signatures thereon, and documents relating thereto to the extent provided by
general commercial law.
(10) Presumptions under Acts of Congress or administrative agency rules
or regulations. Any signature, document, or other matter declared by Act of
Congress or by rule or regulation prescribed by the administrative agency
pursuant to statutory authority or pursuant to executive order to be
presumptively or prima facie genuine or authentic.
(11) Certified records of regularly conducted activity. The original
or a duplicate of a record of regularly conducted activity, within the scope of
§ 18.803(6), which the custodian thereof or another qualified individual
certifies
(i) Was made, at or near the time of the occurrence of the matters set
forth, by, or from information transmitted by, a person with knowledge of those
matters,
(ii) Is kept in the course of the regularly conducted activity, and
(iii) Was made by the regularly conducted activity as a regular practice,
unless the sources of information or the method or circumstances of preparation
indicate lack of trustworthiness. A record so certified is not
self-authenticating under this paragraph unless the proponent makes an intention
to offer it known to the adverse party and makes it available for inspection
sufficiently in advance of its offer in evidence to provide the adverse party
with a fair opportunity to object or meet it. As used in this subsection, certifies
means, with respect to a domestic record, a written declaration under oath
subject to the penalty of perjury and, with respect to a foreign record, a
written declaration signed in a foreign country which, if falsely made, would
subject the maker to criminal penalty under the laws of that country.
(12) Bills, estimates, and reports. In actions involving injury,
illness, disease, death, disability, or physical or mental impairment, or damage
to property, the following bills, estimates, and reports provided that a copy of
said bill, estimate, or report has been served upon the adverse party
sufficiently in advance of the hearing to provide the adverse party with a fair
opportunity to prepare to object or meet it:
(i) Hospital bills on the official letterhead or billhead of the hospital,
when dated and itemized.
(ii) Bills of doctors and dentists, when dated and containing a statement
showing the date of each visit and the charge therefor.
(iii) Bills of registered nurses, licensed practical nurses and physical
therapists or other licensed health care providers, when dated and containing an
itemized statement of the days and hours of service and the charges therefor.
(iv) Bills for medicine, eyeglasses, prosthetic devices, medical belts or
similar items, when dated and itemized.
(v) Property repair bills or estimates, when dated and itemized, setting
forth the charges for labor and material. In the case of an estimate, the party
intending to offer the estimate shall forward with his notice to the adverse
party, together with a copy of the estimate, a statement indicating whether or
not the property was repaired, and, if so, whether the estimated repairs were
made in full or in part and by whom, the cost thereof, together with a copy of
the bill therefor.
(vi) Reports of past earnings, or of the rate of earnings and time lost from
work or lost compensation, prepared by an employer on official letterhead, when
dated and itemized. The adverse party may not dispute the authenticity,
therefor, unless the adverse party files and serves written objection thereto
sufficiently in advance of the hearing stating the objections, and the grounds
therefor, the adverse party will make if the bill, estimate, or report is
offered at the time of the hearing. An adverse party may call the authors of the
bill, estimate, or report as a witness and examine the witness as if under
cross-examination.
(13) Medical reports. In actions involving injury, illness, disease,
death, disability or physical or mental impairment, doctor, hospital, laboratory
and other medical reports made for purposes of medical treatment, provided that
a copy of the report has been filed and served upon the adverse party
sufficiently in advance of the hearing to provide the adverse party with a fair
opportunity to prepare to object or meet it. The adverse party may not object to
the authenticity of the report unless the adverse party files and serves written
objection thereto sufficiently in advance of the hearing stating the objections,
and the grounds therefor, that the adverse party will make if the report is
offered at the time of the hearing. An adverse party may call the author of the
medical report as a witness and examine the witness as if under
cross-examination.
(14) Written reports of expert witnesses. Written reports of an
expert witness prepared with a view toward litigation including but not limited
to a diagnostic report of a physician, including inferences and opinions, when
on official letterhead, when dated, when including a statement of the experts
qualifications, when including a summary of experience as an expert witness in
litigation, when including the basic facts, data, and opinions forming the basis
of the inferences or opinions, and when including the reasons for or explanation
of the inferences or opinions, so far as admissible under the rules of evidence
applied as though the witness was then present and testifying, provided that a
copy of the report has been filed and served upon the adverse party sufficiently
in advance of the hearing to provide the adverse party with a fair opportunity
to prepare to object or meet it. The adverse party may not object to the
authenticity of the report unless the adverse party files and serves written
objection thereto sufficiently in advance of the hearing stating the objections,
and the grounds therefor, that the adverse party will make if the report is
offered at the time of the hearing. An adverse party may call the expert as a
witness and examine the witness as if under cross-examination.
(15) Written statements of lay witnesses. Written statements of a
lay witness made under oath or affirmation and subject to the penalty of
perjury, so far as admissible under the rules of evidence applied as though the
witness was then present and testifying, provided that:
(i) A copy of the written statement has been filed and served upon the
adverse party sufficiently in advance of the hearing to provide the adverse
party with a fair opportunity to prepare to object or meet it, and
(ii) If the declarant is reasonably available as a witness, as determined by
the judge, no adverse party has sufficiently in advance of the hearing filed and
served upon the noticing party a written demand that the declarant be produced
in person to testify at the hearing. An adverse party may call the declarant as
a witness and examine the witness as if under cross-examination.
(16) Deposition testimony. Testimony given as a witness in a
deposition taken in compliance with law in the course of the same proceeding, so
far as admissible under the rules of evidence applied as though the witness was
then present and testifying, if the party against whom the testimony is now
offered had an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination, provided that a notice of intention to
offer the deposition in evidence, together with a copy thereof if not otherwise
previously provided, has been served upon the adverse party sufficiently in
advance of the hearing to provide the adverse party with a fair opportunity to
prepare to object or meet it. An adverse party may call the deponent as a
witness and examine the witness as if under cross-examination.
The testimony of a subscribing witness is not necessary to authenticate a
writing unless required by the laws of the jurisdiction whose laws govern the
validity of the writing.
(a) For purposes of this article the following definitions are applicable:
(1) Writings and recordings.Writings and
recordings consist of letters, words, or numbers, or their equivalent,
set down by handwriting, typewriting, printing, photostating, photographing,
magnetic impulse, mechanical or electronic recording, or other form of data
compilation.
(2) Photographs. Photographs include still photographs,
X-ray films, video tapes, and motion pictures.
(3) Original. An original of a writing or recording is the
writing or recording itself or any counterpart intended to have the same effect
by a person executing or issuing it. An original of a photograph
includes the negative or, other than with respect of X-ray films, any print
therefrom. If data are stored in a computer or similar device, any printout or
other output readable by sight, shown to reflect the data accurately, is an original
.
(4) Duplicate. A duplicate is a counterpart produced by the
same impression as the original, or from the same matrix, or by means of
photography, including enlargements and miniatures, or by mechanical or
electronic rerecording, or by chemical reproduction, or by other equivalent
techniques which accurately reproduces the original.
To prove the content of a writing, recording, or photograph, the original
writing, recording, or photograph is required, except as otherwise provided in
these rules, or by rule or regulation prescribed by the administrative agency
pursuant to statutory authority, or pursuant to executive order, or by Act of
Congress.
A duplicate is admissible to the same extent as an original unless a genuine
question is raised as to the authenticity of the original, or in the
circumstances it would be unfair to admit the duplicate in lieu of the original.
(a) The original is not required, and other evidence of the contents of a
writing, recording, or photograph is admissible if:
(1) Originals lost or destroyed. All originals are lost or have been
destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) Original not obtainable. No original can be obtained by any
available judicial process or procedure; or
(3) Original in possession of opponent. At a time when an original
was under the control of the party against whom offered, that party was put on
notice, by the pleading or otherwise, that the contents would be a subject of
proof at the hearing, and that party does not produce the original at the
hearing; or
(4) Collateral matters. The writing, recording, or photograph is not
closely related to a controlling issue.
The contents of an official record, or of a document authorized to be
recorded or filed and actually recorded or filed, including data compilations in
any form, if otherwise admissible, may be proved by copy, certified as correct
in accordance with § 18.902 or testified to be correct by a witness who has
compared it with the original. If a copy which complies with the foregoing
cannot be obtained by the exercise of reasonable diligence, then other evidence
of the contents may be given.
The contents of voluminous writings, recordings, or photographs which cannot
conveniently be examined at the hearing may be presented in the form of a chart,
summary, or calculation. The originals, or duplicates, shall be made available
for examination or copying, or both, by other parties at reasonable time and
place. The judge may order that they be produced at the hearing.
Contents of writings, recordings, or photographs may be proved by the
testimony or deposition of the party against whom offered or by that party's
written admission, without accounting for the nonproduction of the original.
When the admissibility of other evidence of contents of writings,
recordings, or photographs under these rules depends upon the fulfillment of a
condition of fact, the question whether the condition has been fulfilled is
ordinarily for the judge to determine in accordance with the provisions of §
18.104(a). However, when an issue is raised whether the asserted writing ever
existed; or whether another writing, recording, or photograph produced at the
hearing is the original; or whether other evidence of contents correctly
reflects the contents, the issue is for the judge as trier of fact to determine
as in the case of other issues of fact.
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