8. Public Records and Reports.

Public records and reports prepared by public officials are admitted under this exception because of a presumption in favor of their reliability. Tenn.R.Evid. 803(8). One important exception to the exception is that police reports are inadmissible explicitly under this rule and by statute pursuant to T.C.A. ' 55‑10‑114(b).

9. Records of Vital Statistics.

All records concerning birth, fetal deaths, deaths, marriages or divorces get in under this exception. Tenn.R.Evid. 803(9). The heightened presumption of reliability allows this particular flavor of official records to get in without the requirement that the record be prepared by a public official.

10. Marriage, Baptismal, and Similar Certificates.

Certificates from these religiously based ceremonies are admitted under this exception because of their high probability of accuracy and the short time between the event and the preparation of the certificate eliminates concerns of the unreliable memory of the maker. Tenn.R.Evid. 803(12).

11. Family Records.

This exception allows evidence of personal or family history contained in bibles, tombstones, portraits and the like to be admitted in to evidence to prove facts contained therein. Tenn.R.Evid. 803(13).

12. Records of Documents Affecting an Interest in Property.

Copies of documents recorded in the real estate records are admissible under this exception to prove the original document contained identical language. Tenn.R.Evid. 803(14).

13. Statement in Ancient Documents Affecting an Interest in Property.

This exception allows admission of documents affecting property rights (deeds, security interests, etc.) that are thirty years old or older. Tenn.R.Evid. 803(16). The documents do not have to be recorded as in the previous exception and are admitted because of a diminished likelihood that at the time of making, the documents were falsified in anticipation of the present litigation.

14. Market Reports and Commercial Publications.

This is a straightforward exception allowing published market quotes, tabulations, etc. to be admitted due to the enhanced presumption of accuracy which must necessarily accompany such reports that are relied on by the public in making everyday financial decisions. Tenn.R.Evid. 803(17).

15. Reputation Concerning Personal or Family History.

Evidence of reputation among family or community can be admitted under this exception to prove an individual's pedigree. Tenn.R.Evid. 803(19). This exception (as well as the family records exception, above) enables you to prove a person's pedigree by introducing hearsay.

16. Reputation Concerning Ancient Boundaries.

In a dispute over property boundaries, evidence of the reputation of the boundaries in a community arising before the present controversy and existing for at least thirty years may be admitted under this exception. Tenn.R.Evid. 803(20).

17. Reputation as to Character.

When used in conjunction with the Tennessee Rules of Evidence governing relevance, this exception opens the door for evidence of a person's reputation in the community as to character. Tenn.R.Evid. 803(22).

18. Judgment of Previous Conviction.

This exception permits admission of prior convictions for offenses punishable by death or imprisonment for more than a year. Tenn.R.Evid. 803(22). This is presumably reliable because of the high burden of proof the prosecuting attorney had to overcome as well as the prior defendant's incentive to put on his best defense.

19. Judgment as to Personal or Family History or Boundaries.

Prior judgments to which matters of personal or family history or boundaries were essential are an inherently more reliable manner of introducing evidence of such matters than other exceptions discussed previously and are admitted under this exception. Tenn.R.Evid. 803(23).

20. Children's Statements.

This is an exception, limited to a small number of civil actions involving child dependency or neglect, which allows hearsay evidence to be admitted in the form of statements made by young children with respect to abuse or neglect, assuming the circumstances do not indicate a lack of trustworthiness. Children thirteen years of age or older must testify or be unavailable as discussed below in order to have the exception apply. Tenn.R.Evid. 803(25).

21. Former Testimony.

This is the first of the four hearsay exceptions which require that the declarant be unavailable to testify. The rules classify a declarant as unavailable whenever the declarant is exempted from testifying by reason of privilege, refuses to testify, lacks sufficient memory of the subject matter of the previous statement, is physically incapable of testifying (death, illness, etc.), or the party wishing to introduce the statement is unable to bring about the declarant's attendance by process. Tenn.R.Evid. 804(a).

Assuming unavailability of the declarant, the former testimony exception allows sworn testimony, given by the declarant at a prior proceeding at which the party against whom the evidence is now offered had an opportunity and similar motive to examine the declarant, to be admitted into evidence. Tenn.R.Evid. 804(b)(1).

22. Statement Under Belief of Impending Death.

The second of the hearsay exceptions requiring the unavailability of the declarant, this exception admits hearsay in homicide prosecutions in the form of statements made by homicide victims concerning the circumstances of their death made while under the reasonable belief that their death was imminent. Tenn.R.Evid. 804(b)(2). This exception will only be used by lawyers practicing in the criminal area, particularly prosecuting or defending homicide cases.

23. Statement Against Interest.

The next hearsay exception which requires that the declarant be unavailable is the statement against interest exception. Statements made by declarants which, when made, were against certain of the declarant's interests may be admitted under this rule. Tenn.R.Evid. 804(b)(3). For example, the statement made by a non‑party declarant shortly after an accident that he caused the accident by running the red light could come in under this exception.

24. Statement of Personal or Family History.

Finally, the last of the Tennessee hearsay exceptions, also requiring unavailability of the declarant, is the rule allowing statements of personal or family history of the declarant or someone very close to the declarant so long as the statement was made prior to when the controversy arose. Tenn.R.Evid. 804(b)(4). These statements are deemed reliable because, absent controversy, the declarant would be unlikely to lie about his own personal or family history or that of someone close to him.

D. Refuting Hearsay Objections

The best way to refute hearsay objections is to deal with them before they are ever made. The examination, especially direct, of a witness by a well prepared attorney after proper discovery is extremely predictable. In preparing for the examination it is possible to foresee what evidence you will present which may be objected to on the grounds of hearsay.

After getting a good idea of the evidentiary issues you will likely run into at trial, you can begin to match the evidence you wish to present with the applicable hearsay exception or prepare to present the evidence in a way which enables you to avoid the hearsay issue altogether. For example, instead of asking your witness what he or she told the investigating officer at the scene of an accident about a certain fact, have the witness speak from personal knowledge and tell the jury directly about that fact. Objections on the grounds of hearsay are fairly common, however, the well‑prepared attorney should be able to thwart these objections through careful planning and foresight.

< Previous