(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 Sec. 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 Sec. 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.
(b) [Reserved]
