Del. R. Evid. 803

As amended through December 15, 2023

Rule 803 - Exceptions; to the Rule 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 memorandum or record may be read into evidence or may be received as an exhibit in the court's discretion.

(6)Records of a Regularly Conducted Activity. A memorandum, report, record or data compilation, in any form 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 memorandum, report, record or data compilation 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 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 unless the sources of information or other circumstances indicate lack of trustworthiness; and

(C) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

(8)Public Records. Records, reports, statements or data compilations, in any form, of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. But the following are not within this exception to the hearsay rule:

(A) Investigative reports by police and other law-enforcement personnel;

(B) investigative reports prepared by or for a government, a public office or an agency when offered by it in a case in which it is a party;

(C) factual findings offered by the government in criminal cases;

(D) factual findings resulting from special investigation of a particular complaint, case or incident;

(E) any matter as to which the sources of information or other circumstances indicate 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 Public Record or Entry; Use of Public Record or Entry for Testimonial Purposes.

(A) Testimony -or a certification under Rule 902 - that a diligent search failed to disclose a public record or statement if 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.

(B) In a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days - unless the court sets a different time for 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 is at least 20 years old 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 felony under the law pursuant to which the person was convicted;

(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)Business Records in Justice of the Peace Court Civil Cases. In a civil case before a Justice of the Peace, a bill, estimate, receipt or statement of account which appears to have been made in the regular course of business may be admitted into evidence by the Court, if the Justice of the Peace is satisfied that the document is reliable.

Del. R. Evid. 803

Amended November 28, 2017, effective 1/1/2018.

Comment

D.R.E. 803(1), (2), (3), (4), (6), (7), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), (19), (20), (21), (23) and (24) track the corresponding federal rules. D.R.E. 803(5), (8) and (22) do not.

D.R.E. 803(5) tracks F.R.E. 803(5) except that the last sentence was revised in 1980. The revision was made to enable the court to decide whether recorded recollection once admitted as evidence may be received as an exhibit or merely read. It is intended by this change to permit, in the court's discretion, the admission of a recorded recollection as an exhibit regardless of who offered it. The court should weigh whether the admission as an exhibit would unduly influence the jury. D.R.E. 803(5) should be read more broadly than its literal language. A recorded statement should qualify for admission even if it was recorded by another party if it appears that the statement does in fact reflect the prior knowledge of the witness.

D.R.E. 803(6) was amended in 2001, tracking a similar amendment to F.R. E. 803(6) in effect on December 31, 2000, to permit satisfying the foundational requirements for the admissibility of a business record through certification as an alternative to the expense and inconvenience of producing a time-consuming foundational witness. This amendment is consistent with existing Superior Court practice. This amendment should be interpreted with reference to D.R.E. 902(11) and 902(12) providing for the self-authentication of domestic and foreign records under the certification procedures provided for in D.R.E. 803(6).

D.R.E. 803(6) does not make admissible records created for the litigation such as the report of a medical doctor retained to examine a party at the request of the opposing party. Likewise, a toxicologist's report on the presence of drugs would not be admissible because of D.R.E. 803(8). But see 10 Del. C. §4330-32; 21 Del. C. §4177(h).

See Rule of Civil Procedure 33(c) relating to discovery of business records.

D.R.E. 803(8) tracks U.R.E. 803(8), which was believed to be preferable over F.RE. 803(8).

New D.R.E. 803(10) tracks Justice Scalia's dicta in Melendez-Dias v. Massachusetts, 557 U.S. 305 (2009). Justice Scalia stated that drug chemistry reports could be admitted if the prosecution first notified the accused of its intent to use drug chemistry reports in its case in chief, and the accused did not demand that the drug chemist appear and testify in court. Melendez-Dias, 557 U.S. at 325-26.

The provisions of D.R.E. 803(18) are not intended to change the provisions of 18 Del. C. §6807 relating to the evidence to be considered by a medical malpractice review panel.

D.R.E. 803(21) deals only with hearsay issues concerning reputation and opinion. See D.R.E. 404, 405 and 608 for substantive issues.

D.R.E. 803(22) tracks F.R.E. 803(22) except that the words " a felony under the law pursuant to which the person was convicted" were substituted for the words "the conviction was for a crime punishable by death or by imprisonment for more than a year." See D.R.E. 609(a) for similar treatment.

Nothing in D.R.E. 803(22) should prohibit the admission of evidence of a plea of guilty to any crime where such plea constitutes an admission under D.R.E. 801(d)(2). Boyd & Reed v. Hammond, Del. Supr., 187 A.2d 413 (1963).

D.R.E. 803(24) was transferred to D.R.E. 807, which was adopted in 2001, tracking a similar change to the federal rules.

For prior Delaware cases illustrating the law covered by this rule, see Carpenter v. Greene, Del. Supr., 396 A.2d 150 (1977); Halko v. State, Del. Super., 204 A.2d 628 (1964); Garrod v. Good, Del. Supr., 203 A.2d 112 (1964); Cloud v. State, Del. Supr., 154 A.2d 680 (1959); Curren v. State, Del. Supr., 122 A.2d 126 (1956); State v. Long, Del. Oyer & Term., 123 A. 350 (1923); In Re Kemp's Will, Del. Super., 186 A. 890 (1935); Derrickson v. State, Del. Supr., 321 A.2d 497 (1974); Rice v. Simmons, Del. Super., 2 Del. 309 (1837); Wilkins v. Wilmington, Del. Super., 42 A. 418 (1895); State v. Boleslowski, Del. Oyer & Term., 178 A. 431 (1934); Grossman v. Delaware Elec. Power, Del. Super., 155 A. 806 (1929); Johnson v. State, Del. Supr., 253 A.2d 206 (1969); Millman v. Millman, Del. Supr., 359 A.2d 158 (1976); State v. Henson, Del. Super., 319 A.2d 43 (1974); Watts v. Delaware Coach Co., Del. Super., 58 A.2d 689 (1948); Ayers v. Quillen & Sons, Del. Supr., 188 A.2d 510 (1963); State v. Tucker, Del. Gen. Sess., 139 A. 253 (1927); Hooven v. Hooven, Del. Super., 130 A. 495 (1925); Kreisher v. State, Del. Supr., 303 A.2d 651 (1973).

D.R.E. 803 was amended in 2017 in response to the 2011 restyling of the Federal Rules of Evidence. The amendment is intended to be stylistic only. The pre-2017 "Comment" to D.R.E. 803 was revised only as necessary to reflect the 2017 amendments and the current language of F.R.E. 803. There is no intent to change any result in ruling on evidence admissibility.