TITLE EIGHT — HEARSAY
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
Exclusions. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
Excited Utterance. A spontaneous utterance if:
there is an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and
the declarant’s statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought.
Considerations. In determining whether the statement was a spontaneous reaction, the court may consider the interval between the occurrence and the statement, the declarant’s apparent physical and emotional condition, whether the statement was made in response to a question and the nature of the question, whether the declarant had an opportunity or a motive to fabricate, and the content of the statement itself. No fixed interval controls, and the interval is measured from the startling occurrence and not from the declarant’s first opportunity to speak.
Identity of the Declarant. The declarant need not be identified, and the exception applies although the declarant is unknown, provided the evidence supports a finding that the declarant perceived the occurrence or event.
Statements in This World. A statement transmitted in a Discord channel or direct message, in the game environment, or over the Dispatch radio channel may qualify under this paragraph. Where the medium records the time of transmission, that record is evidence of the interval described in paragraph (c).
Past Recollection Recorded.
A previously recorded statement may be admissible if:
the witness has insufficient memory to testify fully and accurately,
the witness had firsthand knowledge of the facts recorded,
the witness can testify that the recorded statement was truthful when made, and
the witness made or adopted the recorded statement when the events were fresh in the witness’s memory.
Form of the Record. The record may be a writing, a message, a report, an audio or video recording, or another means of preserving the statement. A record made by another person is within this paragraph where the witness adopted it, verified it, or confirmed its accuracy when the events were fresh in the witness’s memory. Where the witness made a statement and another person recorded it, both the making and the recording shall be shown, and both persons shall be shown to have acted while the events were fresh.
Reading; Receipt as an Exhibit. A record admitted under this paragraph may be read into evidence. It may be received as an exhibit only if offered by an adverse party.
Official/Public Records and Reports.
Record of Primary Fact. A record of a primary fact, made by a public officer in the performance of an official duty, is competent evidence as to the existence of that fact.
Prima Facie Evidence. Certain statutes provide that the admission of facts contained in certain public records constitute prima facie evidence of the existence of those facts.
Record of Investigations. Record of investigations and inquiries conducted, either voluntarily or pursuant to requirement of law, by public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions are not admissible in evidence as public records, unless specifically authorized by statute.
Records Within This Paragraph. Records within paragraph (a) include the docket and the records of the Clerk of the Superior Court and of the Clerk of the Supreme Court; the records of the electronic filing system, including the case number, the Bates number assigned to a filing, the date and time in Coordinated Universal Time at which a filing was received, and the status recorded for a filing; an entry in the in-game warrants system made by a court; a record of the State Recorder made under 2 R. Stat. § 221.102; a record of a civil service agency concerning a personnel action; and a record of a department or agency of the State, of a county, or of a municipality recording a primary fact observed or acted upon by an officer in the performance of an official duty.
Limitation in Criminal Cases. A record prepared by a law enforcement officer or by an agent of the State principally for use in the prosecution of a defendant is not admissible against that defendant under this paragraph, and is subject to Rule 802(4). This limitation does not exclude a record of a routine, non-adversarial matter recorded as a primary fact, such as the date and time of a booking, the entry of a warrant, or the maintenance of a piece of equipment.
Absence of a Public Record. Testimony—or a certification under Rule 902—that a diligent search failed to disclose a public record or statement is admissible in evidence if the testimony or certification is offered to prove that:
the record or statement does not exist, or
a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.
Notice in a Criminal Case. Where the prosecution offers a certification under this paragraph against a defendant, the prosecution shall file and serve notice of its intention to do so, together with the certification, not later than twenty-four (24) hours before the proceeding at which it is offered. The defendant may, not later than twelve (12) hours after service, demand that the person who conducted the search testify, and upon that demand the certification shall not be received in place of testimony.
Diligent Search. The proponent shall show what records were searched, by whom, by what method, and for what period. A search of an electronic index alone is sufficient only where the evidence shows that the index is complete for records of the kind sought.
Judgment of a Previous Conviction. Evidence of a final judgment of conviction is admissible if:
the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;
the conviction was for a crime punishable by confinement for more than thirty (30) minutes;
the evidence is admitted to prove any fact essential to the judgment; and
when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.
Proof. A judgment within this paragraph is proved by the court record of the conviction or a certified copy, as Rule 609(1) and Rule 902(1) provide.
Sealed or Expunged Convictions. A conviction that has been sealed or expunged under Rid. R. Crim. P. 36 through 38 shall not be received under this paragraph except as a statute expressly permits.
Impeachment Distinguished. The use of a conviction to impeach a witness is governed by Rule 609 and by its time limitations, and not by this paragraph.
The pendency of an appeal may be shown but does not affect admissibility.
Present Sense Impression.
In General. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
Contemporaneity. The statement shall have been made while the declarant was perceiving the event or condition, or so immediately thereafter that the declarant had no meaningful opportunity for reflection or fabrication. An appreciable interval between the perception and the statement defeats the exception.
Opportunity to Perceive. The proponent shall show that the declarant had an opportunity to perceive the event or condition described. Corroboration of the event by an independent witness is not required, but its presence or absence bears upon whether the proponent has made that showing.
Statements in This World. A message transmitted in a Discord channel or direct message, in the game environment, or over the Dispatch radio channel while the declarant was observing an event, or immediately after, may qualify under this paragraph. Where the platform or system records the time of transmission and the time of the event, that record is evidence of the interval described in paragraph (b), and the proponent shall produce it where it is available.
Distinguished from Excited Utterance. This paragraph does not require a startling occurrence and does not require that the declarant have been under the stress of excitement. Paragraph (1) does not require contemporaneity. A statement may qualify under both.
Then-Existing Mental, Emotional, or Physical Condition.
In General. A statement of the declarant’s then-existing state of mind, including motive, intent, plan, design, or belief, or of the declarant’s then-existing emotion, sensation, or physical condition, including mental feeling, pain, and bodily health.
Condition Shall Be Then Existing. The condition described shall have existed at the time the statement was made. A statement describing a condition that had ended, or that had not yet arisen, is not within this paragraph.
Memory or Belief Excluded. A statement of memory or belief is not admissible under this paragraph to prove the fact remembered or believed.
Intent to Prove Subsequent Conduct. A statement of the declarant’s then-existing intent to perform an act is admissible to prove that the declarant thereafter performed the act. Where such a statement also asserts the intent, conduct, or participation of another person, it is admissible only as evidence of the declarant’s own intent, and the court shall, on request, instruct the trier of fact accordingly under Rule 105.
Statements of Fear. A statement of the declarant’s then-existing fear of a person is admissible under this paragraph only where the declarant’s state of mind is a fact of consequence in the proceeding. It is not admissible to prove that the person feared committed an act or harbored an intent.
Statement Made for Medical Diagnosis or Treatment.
In General. A statement that is made for, and is reasonably pertinent to, medical diagnosis or treatment, and that describes medical history; past or present symptoms or sensations; their inception; or their general cause.
To Whom Made. The statement need not be made to a physician. It is within this paragraph where made to an emergency medical technician, a medic, a nurse, a hospital or clinic employee, a person assisting in obtaining care, or a person transmitting the statement for the purpose of obtaining care, including a transmission over the Dispatch radio channel or in the game environment made to summon or to direct medical assistance.
By Whom Made. The statement need not be made by the patient. It is within this paragraph where made by another person on the patient’s behalf for the purpose of obtaining diagnosis or treatment for the patient.
Fault and Identity. A statement attributing fault, or identifying the person responsible for an injury, is not reasonably pertinent to diagnosis or treatment and is not within this paragraph, except where the identity of the person responsible is itself reasonably pertinent to the diagnosis or treatment to be given.
Motive. The proponent shall show that the declarant made the statement with an understanding that it was being made for the purpose of diagnosis or treatment and with a motive consistent with obtaining proper care.
Records of a Regularly Conducted Activity.
In General. A record of an act, event, condition, opinion, or diagnosis is admissible if:
the record was made at or near the time by, or from information transmitted by, a person with knowledge;
the record was kept in the course of a regularly conducted activity of a business, organization, occupation, calling, department, agency, or other entity, whether or not conducted for profit;
making the record was a regular practice of that activity;
these conditions are shown by the testimony of the custodian of the record or of another qualified witness, or by a certification satisfying paragraph (e); and
the opponent does not show that the source of information, or the method or circumstances of preparation, indicate a lack of trustworthiness.
Automatically Generated Records of This World. This paragraph applies to records generated and maintained in the ordinary operation of the game environment, of the Discord platform, and of the systems of the State, including:
in-game transaction records, purchase and sale records, inventory records, banking and ledger records, and records of the transfer or possession of items;
dispatch logs, computer-aided dispatch entries, and recordings and transcriptions of the Dispatch radio channel;
records of a law enforcement, fire, medical, corrections, or other civil service department or agency, including duty rosters, shift logs, call histories, equipment and maintenance records, custody and booking records, and personnel records;
platform-generated message logs, including channel logs, direct message logs, message identifiers and timestamps, edit and deletion records, membership and role records, and account metadata; and
records of the electronic filing system, including the docket, filing timestamps recorded in Coordinated Universal Time, Bates numbers, filing statuses, and audit entries.
Machine Entries and Human Entries Within the Same Record. To the extent an entry described in paragraph (b) is generated by a machine, a program, or an automated process without the intervention of a person in the making of that entry, the entry is not a statement under Rule 801(1)(c), is not hearsay, and requires no exception; its admissibility depends upon authentication under Rule 901, Rule 1108, and Rule 1109, and upon a showing that the process or system produces an accurate result. To the extent an entry records information supplied by a person, that information is admissible under this paragraph only where the person supplying it acted in the course of the regularly conducted activity and under a duty to report the information accurately.
Information from an Outside Source. Where a record of one activity incorporates information supplied by a person who was not acting in the course of that activity, or by another entity, the incorporated information is admissible only where it independently satisfies this paragraph or another exception, or where the entity keeping the record had a business duty to verify the information and did so. Rule 805 governs.
Certification of the Custodian. In place of testimony, the conditions of paragraph (a)(i) through (a)(iii) may be shown by a written certification of the custodian of the record or of another qualified person, which shall:
identify the record certified and the activity in which it is kept;
state that the record was made at or near the time by, or from information transmitted by, a person with knowledge;
state that the record was kept in the course of the regularly conducted activity and that making it was a regular practice of that activity;
state the certifying person’s position, duties, and the basis of that person’s knowledge of the record-keeping practice;
where the record is one described in paragraph (b), describe the process or system by which it is generated and maintained and state that the process or system produces an accurate result; and
be signed as Rid. R. Civ. P. 5.2 provides, and be made under the penalty of perjury.
Notice; Objection; Demand for the Custodian. A party intending to offer a record under a certification shall file and serve the record and the certification not later than twenty-four (24) hours before the proceeding at which the record is offered. An adverse party may object to the sufficiency of the certification, or demand the testimony of the custodian or other qualified witness, not later than twelve (12) hours after service, or at the proceeding upon a showing of good cause. Upon a demand in a criminal case by a defendant against whom the record is offered, the certification shall not be received in place of testimony as to any matter within Rule 802(4). Where the general filing channel is closed to the matter, the record, the certification, the objection, and the demand shall be presented as the court directs.
Records Prepared for Litigation. A record prepared principally in anticipation of litigation, for the prosecution of a case, or for the purpose of establishing a position in a dispute is not within this paragraph, and the circumstances of its preparation indicate a lack of trustworthiness within the meaning of paragraph (a)(v).
Trustworthiness. Once the proponent has shown the conditions of paragraph (a)(i) through (a)(iv), the burden is upon the opponent to show that the source of information, or the method or circumstances of preparation, indicate a lack of trustworthiness. In determining that question the court may consider the completeness of the record, the existence of gaps or alterations, the reliability and security of the system in which the record is kept, whether the record has been produced from the system that generated it, whether an export or screenshot is offered in place of the underlying record, the interest of the person who supplied the information, and whether the record is contradicted by other records of the same activity.
Criminal Cases. A record admissible under this paragraph remains subject to Rule 802(4).
Absence of a Record of a Regularly Conducted Activity.
In General. Evidence that a matter is not included in a record described in paragraph (9) is admissible to prove that the matter did not occur or exist, if a record was regularly kept for a matter of that kind and the opponent does not show that the possible source of the information, or other circumstances, indicate a lack of trustworthiness.
How Shown. The absence may be shown by the testimony of the custodian of the record or of another qualified witness, or by a certification satisfying paragraph (9)(e), which shall in addition state what records were searched, by whom, by what method, for what period, and that the search was diligent.
Application in This World. This paragraph applies to the absence of an entry in an in-game transaction, inventory, banking, or ledger record; the absence of a dispatch entry or radio transmission; the absence of an entry in the in-game warrants system; the absence of a message in a platform-generated log for a stated channel and period; the absence of a departmental record of an event; and the absence of a filing or docket entry in the electronic filing system.
Completeness of the System. The proponent shall show that the record system is one in which a matter of the kind in question would ordinarily have been recorded had it occurred. Where the system is shown to be incomplete, intermittent, or subject to deletion, purging, or retention limits, the court shall consider that showing under paragraph (a).
Notice; Objection; Demand. Paragraph (9)(f) applies to a certification offered under this paragraph.
Market Reports and Commercial Publications.
In General. A market quotation, list, directory, schedule, index, or other compilation is admissible if it is generally relied upon by the public or by persons in particular occupations, and if the compilation is shown to be of a kind ordinarily accurate for the purpose for which it is offered.
Application in This World. This paragraph applies to a published in-game market, exchange, or vendor price listing; a published catalogue or schedule of the retail or resale value of an item; a published index of the value of property within the economy of the game environment; and a schedule of fines, fees, costs, or values published by a department or agency of the State.
Use in Enforcement Proceedings. A compilation admitted under this paragraph may be used to prove the lowest retail value or resale value of an item for the purpose of determining market rate under 7 R. Stat. § 132.120, and to prove that an item is of undefined market rate for the purpose of 7 R. Stat. § 132.123.
Trustworthiness. The compilation is not admissible where the opponent shows that the compilation, or the source or method of its preparation, indicates a lack of trustworthiness, or that the quotation offered does not correspond in date, condition, quantity, or market to the matter in issue.
Reputation Concerning Character.
Community. For the purpose of this paragraph, a person’s community includes the persons who deal with that person in the game environment, in the Discord servers in which that person is known, in that person’s employment or civil service, and in that person’s neighborhood or place of residence within the State.
Foundation. The proponent shall show that the witness is sufficiently acquainted with the person and with the community, over a sufficient period, to know the person’s reputation in it, and that a reputation in fact exists. A witness’s personal opinion of the person’s character is not admissible, as Rule 608(1) and Rule 610 provide, and specific instances of conduct are not admissible under this paragraph.
Limits. This paragraph does not enlarge the purposes for which character evidence may be offered. Character evidence remains subject to Rule 404(1), and evidence of a witness’s character for truthfulness remains subject to Rule 608.
Residual Exception.
In General. A statement not admissible under any other exception in this rule, in Rule 804, in a statute, or in the common law of Ridgeway is admissible only if the court finds each of the following:
the statement is supported by circumstantial guarantees of trustworthiness equivalent to those underlying the exceptions in this rule and in Rule 804;
the statement is offered as evidence of a material fact;
the statement is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts;
the general purposes of these rules and the interests of justice will best be served by its admission; and
the notice required by paragraph (c) has been given.
Trustworthiness. In determining whether the guarantees of trustworthiness are equivalent, the court shall consider the totality of the circumstances under which the statement was made, and evidence, if any, corroborating the statement. The court shall not consider the credibility of a witness who reports the statement.
Notice. The proponent shall file and serve notice of the intention to offer the statement not later than twenty-four (24) hours before the proceeding at which it is offered. The notice shall state the substance of the statement, identify the declarant by the username of the account through which the declarant acts or, where the declarant is unidentified, describe the declarant, state the circumstances under which the statement was made, and state the exception’s requirements the proponent contends are satisfied. The court may permit notice within a shorter time only upon a showing of good cause and upon such terms as protect the adverse party from surprise. Where the general filing channel is closed to the matter, notice shall be given as the court directs.
Findings. The court shall state on the record its findings as to each requirement of paragraph (a) before admitting a statement under this paragraph.
This Exception Is Narrow. This paragraph shall be applied rarely and only in exceptional circumstances. It shall not be used to admit a statement that fails a requirement of another exception in this rule or in Rule 804, and the near satisfaction of another exception is not a ground for admission under this paragraph.
Criminal Cases. This paragraph shall not be applied to admit a testimonial statement against a defendant in a criminal case, as Rule 802(4) provides.