Ariz. R. Evid. 803

As amended through December 6, 2023

Rule 803 - Exceptions to the 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 it.

(2)Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it 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) or with a statute permitting certification; 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 not including, in a criminal case, 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.

(9)Public Records of Vital Statistics. A record of a birth, 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 20 days before trial, and the defendant does not object in writing within 10 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, but not a nolo contendere 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 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)[Other exceptions.] [Transferred to Rule 807.]

(25)Former testimony (non-criminal action or proceeding). Except in a criminal action or proceeding, testimony given as a witness at another hearing of the same or 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.

Ariz. R. Evi. 803

Amended Oct. 19, 1988, effective 11/1/1988; 10/3/1994, effective 12/1/1994; 10/16/2003, effective 12/1/2003; 9/8/2011, effective 1/1/2012; 8/28/2013, effective 1/1/2014; 9/2/2014, effective 1/1/2015; 8/31/2017, effective 1/1/2018.

COMMENT TO 2018 AMENDMENT TO RULE 803(16)

The ancient documents exception to the rule against hearsay has been limited to statements in documents prepared before January 1, 1998. The Court has determined that the ancient documents exception should be limited due to the risk that it will be used as a vehicle to admit vast amounts of unreliable electronically stored information (ESI). Given the exponential development and growth of electronic information since 1998, the hearsay exception for ancient documents has now become a possible open door for large amounts of unreliable ESI, as no showing of reliability needs to be made to qualify under the exception.

The Court is aware that in certain cases--such as cases involving latent diseases and environmental damage--parties must rely on hardcopy documents from the past. The ancient documents exception remains available for such cases for documents prepared before 1998. Going forward, it is anticipated that any need to admit old hardcopy documents produced after January 1, 1998 will decrease, because reliable ESI is likely to be available and can be offered under a reliability-based hearsay exception. Rule 803(6) may be used for many of these ESI documents, especially given its flexible standards on which witnesses might be qualified to provide an adequate foundation. And Rule 807 can be used to admit old documents upon a showing of reliability--which will often (though not always) be found by circumstances such as that the document was prepared with no litigation motive in mind, close in time to the relevant events. The limitation of the ancient documents exception is not intended to raise an inference that 20 year-old documents are, as a class, unreliable, or that they should somehow not qualify for admissibility under Rule 807. Finally, many old documents can be admitted for the non-hearsay purpose of proving notice, or as party-opponent statements.

Under the amendment, 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.

COMMENT TO 2015 AMENDMENT TO RULE 803(6)

The rule has been amended to clarify that if the proponent has established the stated requirements of the exception -- regular business with regularly kept record, source with personal knowledge, record made timely, and foundation testimony or certification -- then the burden is on the opponent to show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. It is appropriate to impose this burden on opponent, as the basic admissibility requirements are sufficient to establish a presumption that the record is reliable.

The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. A determination of untrustworthiness necessarily depends on the circumstances.

COMMENT TO 2015 AMENDMENT TO RULE 803(7)

The rule has been amended to clarify that if the proponent has established the stated requirements of the exception -- set forth in Rule 803(6) -- then the burden is on the opponent to show that the possible source of the information or other circumstances indicate a lack of trustworthiness. The amendment maintains consistency with the amendment to the trustworthiness clause of Rule 803(6).

COMMENT TO 2015 AMENDMENT TO RULE 803(8)

The rule has been amended to clarify that if the proponent has established that the record meets the stated requirements of the exception -- prepared by a public office and setting out information as specified in the rule -- then the burden is on the opponent to show that the source of information or other circumstances indicate a lack of trustworthiness. Public records have justifiably carried a presumption of reliability. The amendment maintains consistency with the amendment to the trustworthiness clause of Rule 803(6).

COMMENT TO 2014 AMENDMENT

Rule 803(10) has been amended to incorporate, with minor variations, a "'notice-and-demand" procedure that was approved in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). This amendment is not intended to alter any otherwise applicable disclosure requirements.

COMMENT TO 2012 AMENDMENT

To conform to Federal Rule of Evidence 803(6)(A), as restyled, the language "first hand knowledge" in Rule 803(6)(b) has been changed to "knowledge" in amended Rule 803(6)(A). The new language is not intended to change the requirement that the record be made by--or from information transmitted by--someone with personal or first hand knowledge.

To conform to Federal Rules of Evidence 803(24) and 807, Rule 803(24) has been deleted and transferred to Rule 807.

Rule 803(25) has not been amended to conform to the federal rules.

Otherwise, the language of Rule 803 has been amended to conform to the federal restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent in the restyling to change any result in any ruling on evidence admissibility.

COMMENT TO 1994 AMENDMENT

For provisions governing former testimony in criminal actions or proceedings, see Rule 804(b)(1) and Rule 19.3(c), Rules of Criminal Procedure.

HISTORICAL NOTE

Source:

Federal Rules of Evidence, Rule 803, (modified).

Civ.Code 1901, § 2546.

Civ.Code 1913, §§ 1734, 1736, 1743, 1756, 1757.

Rev.Code 1928, §§ 4452, 4456, 4463.

Fed.Rules Civ.Proc., Rule 44(c), 28 U.S.C.A.

Code 1939, §§ 21-928, 23-303, 23-307.

Laws 1951, Ch. 62, § 1.

Code 1939, Supp.1952, § 23-314.

Rules Civ.Proc., former Rules 44(e), 44(f), 44(i), 44(q), 44(s).