HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment; provided, however, that the admissibility of statements made after commencement of the litigation is left to the court's discretion.
(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness; provided, however, that subjective opinions and judgments found in business records are not admissible. The term "business" as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
(7) Absence of Entry in Records Kept in Accordance With the Provisions of Subsection (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of subsection (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel; provided, however, that investigative notes involving opinions, judgments, or conclusions are not admissible. Accident reports required by S.C. Code Ann. §§ 56-5-1260 to -1280 (1991) are not admissible as evidence of negligence or due care in an action at law for damages.
(9) Records of Vital Statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
(11) Records of Religious Organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.
(12) Marriage, Baptismal, and Similar Certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
(13) Family Records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
(14) Records of Documents Affecting an Interest in Property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.
(15) Statements in Documents Affecting an Interest in Property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. Statements in a document in existence twenty years or more the authenticity of which is established.
(17) Market Reports, Commercial Publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. This rule is in addition to any statutory provisions on this subject.
(19) Reputation Concerning Personal or Family History. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.
(20) Reputation Concerning Boundaries or General History. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.
(21) Reputation as to Character. Reputation of a person's character among associates or in the community.
(22) Judgment of Previous Conviction. Evidence of a final judgment (to include final judgments in juvenile delinquency matters), entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.
(23) Judgment as to Personal, Family or General History, or Boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.
Except for modifications to subsections (4), (6), (8), (18), and (22), and the deletion of subsection (24) which contained a "catchall" or residual hearsay exception, this rule is identical to the federal rule.
Subsections (1) and (2): These subsections constitute a change in South Carolina law. Previously, a statement had to meet the conditions of both subsections (1) and (2) before it would be admissible under the res gestae exception to the hearsay rule. State v. Harrison, 298 S.C. 333, 380 S.E.2d 818 (1989).
Subsection (3): This subsection is consistent with prior state practice. Winburn v. Minnesota Mut. Life Ins. Co., 261 S.C. 568, 201 S.E.2d 372 (1973); Sligh v. Newberry Elec.Coop.,Inc., 216 S.C. 401, 58 S.E.2d 675 (1950); Ervin v. Myrtle Grove Plantation, 206 S.C. 41, 32 S.E.2d 877 (1945); Lazar v. Great Atl.& Pac. Tea Co., 197 S.C. 74, 14 S.E.2d 560 (1941); Spires v. Spires, 111 S.C. 373, 97 S.E. 847 (1919).
Subsection (4): The first part of this subsection is identical to the federal rule and is consistent with state practice. State v. Camele, 293 S.C. 302, 360 S.E.2d 307 (1987) (physician's testimony should include only those statements related to him by the patient upon which the physician relied in reaching medical conclusions); Gentry v. Watkins-Carolina Trucking Co., 249 S.C. 316, 154 S.E.2d 112 (1967) (statements of present condition and past symptoms made to a physician consulted as a potential witness are admissible, not as substantive evidence, but, in the absence of fraud or bad faith, as information upon which the physician relied in reaching a professional opinion). The final phrase was added to the subsection to provide that the admissibility of statements made after commencement of the litigation is within the trial judge's discretion. Gentry v. Watkins-Carolina Trucking Co., supra.
Subsection (5): This subsection is similar to previous state law which allowed a witness to testify from a writing when it was the original document prepared by the witness contemporaneously with the event for the purpose of preserving the memory of it. Gwathmey v. Foor Hotel Co., 121 S.C. 237, 113 S.E. 688 (1922); The Bank of Charleston Nat'l Banking Ass'n v. Zorn, 14 S.C. 444 (1881). The provision of this rule limiting the introduction of the writing to when it is offered by an adverse party is a change in South Carolina law.
Subsection (6): This subsection differs from the federal rule in that the word "opinions" in the first sentence is deleted and the phrase, "provided, however, that subjective opinions and judgments found in business records are not admissible" is added to the federal rule to make it consistent with state law. Kershaw County Dep't of Social Serv. v. McCaskill, 276 S.C. 360, 278 S.E.2d 771 (1981); see also State v. Rich, 293 S.C. 172, 359 S.E.2d 281 (1987) (admission of properly authenticated fingerprints); Uniform Business Records as Evidence Act, S.C. Code Ann. § 19-5-510 (1985).
Subsection (7): While the case law has recognized the admissibility of negative evidence to prove the non-existence of records of regularly conducted activity, the courts have not recognized this as a separate hearsay exception. E.g., Peoples Nat'l Bank v. Manos Bros., Inc., 226 S.C. 257, 84 S.E.2d 857 (1955); see also Flowers v. South Carolina Dep't of Highways and Pub. Transp., 309 S.C. 76, 419 S.E.2d 832 (Ct. App. 1992) (citing federal rule).
Subsection (8): This subsection differs from the federal rule in that it does not include item (C). The subsection also contains two limitations not included in the federal rule. First, investigative notes involving opinions, judgments, or conclusions are not admissible. Further, accident reports required by statute are not admissible as evidence of negligence or due care in actions for damages. As modified, this subsection is consistent with prior state practice. State v. Pearson, 223 S.C. 377, 76 S.E.2d 151 (1953); S.C. Code Ann. § 56-5-1290 (1991); see also State v. Rich, 293 S.C. 172, 359 S.E.2d 281 (1987) (admission of properly authenticated fingerprints).
Subsection (9): This subsection constitutes a change in South Carolina law. Prior case law limited admissions of such reports to matters within the knowledge of the person making the report. Williams v. Metropolitan Life Ins. Co., 116 S.C. 277, 108 S.E. 110 (1921).
Subsection (10): While the case law has recognized the admissibility of negative evidence to prove the non-existence of public records, the courts have not recognized this as a separate hearsay exception. See Peoples Nat'l Bank v. Manos Bros., Inc., 226 S.C. 257, 84 S.E.2d 857 (1955) (introduction of evidence of the non-existence of public record entries); Flowers v. South Carolina Dep't of Highways and Pub. Transp., 309 S.C. 76, 419 S.E.2d 832 (Ct.App.1992) (citing federal rule). See also Rule 44(b), SCRCP.
Subsection (11): There does not appear to be any South Carolina law concerning this exception to the hearsay rule.
Subsection (12): No prior South Carolina authority has been found which states the hearsay exception expressed in this subsection.
Subsection (13): This exception is apparently consistent with prior case law in this State. See Dobson v. Cothran, 34 S.C. 518, 13 S.E. 679 (1891) (entry in family Bible of the birth date of a person is admissible as evidence of the person's age only where better evidence cannot be obtained).
Subsection (14): This subsection is consistent with statutory and case law in this State. Wilson v. Moseley, 113 S.C. 278, 102 S.E. 330 (1920) (a record book from a clerk's office, wherein a deed was authorized to be recorded and was recorded, is admissible to prove the existence and contents of the deed if sufficient evidence is presented to prove that the original deed is not available); S.C. Code Ann. § 19-5-10 (1985) (admissibility of certified copies or certified photostatic copies of documents).
Subsection (15): This provision is apparently consistent with prior case law in this State. See Smith v. Williams, 141 S.C. 265, 139 S.E. 625 (1927) (husband's statements in a deed and accompanying memorandum purporting to convey an interest in property admissible to show whether family agreement had been made following husband's death entitling widow to retain use and possession of the property).
Subsection (16): The ancient document exception to the hearsay rule in subsection (16) is consistent with prior case law in this State. However, prior case law qualified a document as "ancient" if the document was thirty years old or older. Atlantic Coast Line R.R. Co. v. Searson, 137 S.C. 468, 135 S.E. 567 (1926) (map more than thirty years old could be introduced as ancient document); Johnson v. Pritchard, 302 S.C. 437, 395 S.E.2d 191 (Ct. App. 1990) (duly authenticated ancient documents of thirty years or more constitute an exception to the hearsay rule). Subsection (16) qualifies a document as "ancient" if it is twenty years old or older.
Subsection (17): This provision is consistent with prior case law in this State. Peoples Nat'l Bank v. Manos Bros., Inc., 226 S.C. 257, 84 S.E.2d 857 (1954) (on the issue of domicile, a city directory is admissible); Kirkpatrick v. Hardeman, 123 S.C. 21, 115 S.E. 905 (1923) (accredited current price lists and market reports, including those published in trade journals or newspapers, which are accepted as trustworthy, are admissible on the question of market value of stock).
Subsection (18): This exception is identical to the federal rule except for the addition of the last sentence. This rule changes and expands previous South Carolina law which held that medical books are not admissible into evidence to be read to the court and jury except in the situations set forth in S.C. Code Ann. § 19-5-410 (1985). See LaCount v. General Asbestos & Rubber Co., 184 S.C. 232, 192 S.E. 262 (1937); Baker v. Southern Cotton Oil Co., 161 S.C. 479, 159 S.E. 822 (1931); Edwards v. Union Buffalo Mills Co., 162 S.C. 17, 159 S.E. 818 (1931). This rule is consistent with the case of Baker v. Port City Steel Erectors, Inc., 261 S.C. 469, 200 S.E.2d 681 (1973), which states that a scientific textbook can be used for the purpose of impeaching an expert witness.
Subsection (19): This exception is consistent with prior state law. Hazelwood v. Mayes, 111 S.C. 23, 96 S.E. 672 (1918); Horry v. Glover, 11 S.C.Eq. (2 Hill Eq.) 515 (1837).
Subsection (20): This exception is consistent with prior state law. Culbertson v. Culbertson, 273 S.C. 103, 254 S.E.2d 558 (1979) (boundary); County of Darlington v. Perkins, 269 S.C. 572, 239 S.E.2d 69 (1977) (general history).
Subsection (21): There is no South Carolina law dealing with this exception. This section is included in the rules to insure that reputation evidence is not excluded on the basis of hearsay. See Weinstein's Evidence ¶ 803(21) (1994). Rules 404, 405, and 608 deal with when reputation evidence may be admissible.
Subsection (22): This subsection is identical to the federal rule except for the addition of the phrase "to include final judgments in juvenile delinquency matters." This addition makes it clear that a final judgment in a juvenile delinquency matter is to be treated in the same manner as an adult conviction under this subsection; to determine if the crime is punishable by death or imprisonment in excess of one year, the maximum punishment an adult would receive for the offense is controlling. Traditionally, evidence of a judgment in a criminal case was not admissible in a civil case as evidence of the facts upon which the conviction was based. Fontville v. Atlanta & Charlotte Air Line Ry. Co., 93 S.C. 287, 75 S.E. 172 (1910). This traditional rule has, however, been eroded in several cases. South Carolina State Board of Dental Examiners v. Breeland, 208 S.C. 469, 38 S.E.2d 644 (1946) (at least where the police power of the state is involved in a civil case, a criminal conviction based on a jury verdict is admissible); Globe & Rutgers Fire Ins. Co. v. Foil, 189 S.C. 91, 200 S.E. 97 (1938) (evidence of a conviction based on a guilty plea is admissible in a civil case as an admission against the criminal defendant). The adoption of this rule now allows criminal judgments based on a plea of guilty or a trial for an offense which carries a maximum punishment of death or imprisonment for more than one year to be admissible in almost all civil actions to prove the facts essential to the criminal judgment. Not allowing a criminal judgment based on a plea of nolo contendere to be used to prove the facts on which the judgment is based is consistent with the prior case law. Kibler v. State, 267 S.C. 250, 227 S.E.2d 199 (1976) (plea of nolo cannot be used as an admission in a civil case); see also In re Anderson, 255 S.C. 56, 177 S.E.2d 130 (1970) (attorney disciplinary proceeding). It should be noted that S.C. Code Ann. § 56-5-6160 (1991) limits the admissibility of evidence of a conviction for a traffic offense. Further, S.C. Code Ann. § 20-7-780 (Supp. 1993), which makes juvenile records confidential unless otherwise ordered by the family court, may limit access to final judgments in juvenile delinquency matters.
Subsection (23): This exception is consistent with prior state law. Bradley v. Calhoun, 116 S.C. 7, 106 S.E. 843 (1921).