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Commonly Overlooked Exceptions to the Hearsay Rule

Mon, 08/27/2018 - 09:52 -- admin25

by Melinda Eitzen, George Shake, and Jodi Bender

Texas Rules of Evidence Rule 803 provides the many exceptions to the hearsay rule, some of which are often overlooked and can be particularly useful when admitting evidence in your family law litigation.

One of the most notable is the Business Records Exception in Rule 803(6). The Texas Supreme Court ruled on the admissibility of third-party business records almost 36 years ago. A witness can claim a third-party’s business records as their own, so long as the witness demonstrates personal knowledge of the activity recorded. The rule defines “business” so broadly as to include any regularly conducted activity, whether for profit or not. Therefore, records of a family’s regularly conducted activities, such as financial account statements and credit card statements, may fall under the business records hearsay exception.

Business records must: (1) be kept in the course of business; (2) be relied upon for accuracy by the record holder; and (3) be trustworthy, as is indicated by the circumstances. Third-party records may fall under the exception if the family incorporated those records into their own records, relied upon their accuracy, and the records are otherwise shown to be trustworthy.

Documents created for the purpose of litigation are generally not admissible under this exception. However, it is common for a document to be created for dual purposes. The fact that a document was created for litigation purposes is not a complete bar to admissibility, but rather a factor to be considered. One federal court ruled that an audit report was admissible under this exception even though the report was prepared after a defendant was suspected of misappropriating funds. The records were admissible because the preparer was experienced in preparing audit reports, the contractor was a neutral third-party, and the report had significance apart from its use in litigation. Thus, it is important to be able to establish a purpose for the documents and their significance outside of litigation.

Rule 803(8) governs the admissibility of public records.  It does not provide an exception for records created for adversarial or investigative purposes. For example, police and CPS witness statements in reports are essentially hearsay-within-hearsay and only admissible with another hearsay exception.

Under Rule 803(14), an interest in property can be established with one’s own copy of a properly recorded document. Attorneys often think of real property when applying this exception, but it can easily apply to personal property as well. An example is a handwritten list of property created for insurance purposes. When dealing with more substantial property, most courts require the document have some formal qualities.

Rule 803(21)’s allowance of reputation testimony concerning character is another helpful exception. The rule is applicable when a party’s character is directly at issue, such as when a party is accused of something unsavory. A character witness need not even reside or work in the same “community” as the individual to whom the testimony relates.

Rule 803(3)’s state-of-mind exception can also be very useful. This exception operates to allow statements of a then-existing bodily condition, state of mind, or emotion in a given circumstance. Generally, statements indicating a present physical condition of a declarant are admissible, regardless of whether they are made to a physician or lay person. A sound recording of a decedent describing his physical pain made days before his death, or a statement made about an individual’s medical condition, would both be admissible under the “physical condition” portion of the exception. Moreover, a statement of one’s present state of mind or emotion is admissible if offered to prove a state of mind or emotion that is at issue in the case. Finally, the rule allows a statement of present state of mind—usually intent or plan—offered to prove subsequent conduct. Thus, a statement by a victim made two weeks before someone committed a crime against them would be admissible, so long as the statement is relevant to the subsequent conduct of the criminal.

Overall, Rule 803(3) allows a showing of one’s physical or emotional condition, but does not permit a showing of why the condition occurred or existed. The exception applies only to statements of a declarant’s then-existing state of mind, emotion, physical condition, or sensation. Intent, plan, motive, design, mental feeling, pain or bodily health would all fall within the exception.

Familiarity with the hearsay exceptions will help you admit crucial evidence, and ultimately help you win your case. Rule 803 is the ideal tool to help you answer every objection with an exception.

Melinda Eitzen, George Shake, and Jodi Bender are DBA Family Law Section members and partners at Duffee+Eitzen. They can be reached at,, and, respectively.

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