The following types of statements are not excluded by the hearsay rule, whether or not the declarant is available as a witness. In these situations, the declarant is considered to be a witness and must have the personal knowledge required by Rule 602. The personal knowledge may appear from the statement to which the witness on the stand testifies or may be inferred from the circumstances of the statement or may be proved by direct testimony or other evidence.60

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.61 The theory of this exception is that the closeness in time between the event and the statement make deliberate or conscious misrepresentation unlikely.62 The declarant must have personally perceived the event described; the declaration must be an explanation or description of the event, rather than a narration; and the declaration and the event described must be contemporaneous. The statement need not be precisely contemporaneous with the triggering event but must still be responsive to it and take place within a short period of time after the stimulus.63

There is no per se general requirement of independent corroboration for a statement to be admitted under the present sense impression exception. Independent corroboration may be required in some cases, however, to determine whether the statement was contemporaneous or whether the declarant perceived the event. The rationale behind the present sense impression exception is that spontaneous statements describing an event are trustworthy because the declarant has no time to fabricate the statements and because there is less concern that the statements reflect a defect in the declarant’s memory.64

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.65 This exception is based on the idea that the statement is reliable because the declarant, under the condition of excitement, is not in a position to fabricate and “will produce utterances free of conscious fabrication.”66 A prerequisite to admissibility is that the statement be contemporaneous or nearly contemporaneous with the event described so that there is no time to fabricate the statement.67 In contrast to the “present sense impression” exception, which is limited to a description of a perceived event or condition, the “excited utterance” exception need only “relate” to the startling event or condition, thus permitting a broader scope for this exception. Under either exception it is necessary for the person who made the statement to have been a participant.

Specifically, admissibility of an excited utterance is predicated on a showing of four elements: (i) a startling occasion or event; (ii) a statement precipitated by and relating to the circumstances of the startling occasion or event; (iii) a declarant who appears to have had the opportunity to observe the startling occasion or event; and (iv) a statement made before there was time to reflect and fabricate.  With regard to the fourth factor, the amount of time that has elapsed is not dispositive.  Rather, the inquiry is whether or not the declarant was still under the stress of excitement caused by the event or condition at the time the statement was made.68 Where the declarant is continuously under the influence of the event, a statement made later in time from the event may be just as reliable as one made closer to the time of the event.69 Physical pain suffered by the declarant may be considered the sort of stress or excitement contemplated by the exception.  The existence of pain or continued stress prolongs the time during which the statement will be deemed an excited one.70

By contrast, a statement made by a person just after being awakened will be deemed admissible as an excited utterance, absent any evidence of stress of excitement.71

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 the declarant’s will.72  Under this exception, a statement by a witness as to his or her own medical condition is not deemed hearsay expert testimony, even though the fact may have been learned from a doctor, as the statement is deemed to be based on the personal knowledge of the witness.73  However, courts distinguish between a, out-of-court statement of one’s present mental, emotional or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), which is admissible, from an out-of court statement of reasons why a person feels the way they do at the time, which is not admissible.74  Similarly, statements that are simply perceptions or beliefs a declarant has of events are inadmissible as they are not justified under the rationale for the state of mind exception.75

For hearsay evidence to be admissible to prove state of mind, the proponent of the testimony must establish that (i) the statement is relevant and material; (ii) the statement related to an existing state of mind when made; (iii) the statement was made in a natural manner; (iv) the statement was made under circumstances dispelling suspicion; and (v) the statement contained no suggestion of sinister motives.76

In a homicide prosecution, to admit the hearsay statement of the victim under this exception, (i) the victim’s statement must be demonstration that the person admitted only in rebuttal after evidence of accident, self-defense, suicide or extreme emotional distress has been presented by the defendant; (ii) the trial judge must determine that its probative value is not substantially outweighed by the danger of unfair prejudice; (iii) the deceased’s statement, when made, must not have been too remote in time from the charged offense; and (iv) the trial judge must give a cautionary instruction as to the limited use of the testimony, both at the time of the admission of the testimony and in the closing instructions.77

This exception has been described by the Federal Advisory Committee as a specialized application of the “present sense impression” exception, presented separately to enhance its usefulness and accessibility.78 It can be divided into two parts, one relating to physical condition and the other related to a mental or emotional condition. Proof of pain and suffering in personal injury litigation is often established by showing the plaintiff’s own contemporaneous description of his or her physical sensations, and the courts have accepted this as often a superior form of proof.  The physical condition complaint must be contemporaneous with the physical feeling, not necessarily with the action that may have caused it.

On the other hand, the exception for the statement of mental or emotional condition has been an area of confusion in the law of hearsay. It may be noted that a person can testify as to his or her own state of mind at any time, and the hearsay rule would not be involved. Evidence of the witness’s out-of-court statements would also be permissible to the extent permitted by Rule 801(d)(l)(A).  Similarly, circumstantial evidence to prove the mental or emotional state of a person may involve non-hearsay applications. For example, a witness may testify as to the appearance of a person whose mental state is involved, and to that person’s reactions and physical gestures. Further, out-of-court irrational statements do not involve a hearsay use because the statements are not being used to prove the truth of the asserted fact, but only as a demonstration that the person making the statement was not competent or sane. Mental state is also sometimes proved as part of a verbal act. For example, handing money over to a person may be ambiguous in the absence of qualifying words that, for example, the money is being used to repay a loan, make a gift, pay a bet or for some other reason.

The least complicated hearsay use is when the statement is used to evidence a state of mind directly in issue, such as intent to establish a domicile or to show motive or malice.

State of mind may be used as the basis for reference that the person making the statement subsequently acted pursuant to it. Thus, in State v. Long,79 in a prosecution for murder, the statement of the deceased that he was going that night to meet the defendant was offered to show that the deceased and the defendant, were together at a time when the murder could have been committed. The court ruled that a person’s own statements of a present existing state of mind made in a material matter under circumstances dispelling suspicion and containing no suggestion of sinister motives are admissible to prove the state of mind when made. The court also ruled that if the act is material, then an existence of a design or plan to do that specific act is relevant to show that the act was actually done as planned. The rule of the Long case, approved by the Delaware Supreme Court in Derrickson v. State80 and followed in a number of other jurisdictions, has received considerable criticism. The Advisory Committee note to the federal rule makes clear, however, that the rule of the Long case remains undisturbed.

A major criticism of the doctrine is that if statements of intent are admissible to prove a future act, logically they should also be allowed to prove a past act. However, if this were followed, every statement of a past act could be reanalyzed to escape the hearsay rule. For instance, a statement, “I stopped at the stop sign,” could be broken down to “I have a present belief that I stopped at the stop sign,” which would be relevant to show that the witness stopped at the stop sign. The exception would swallow the rule. Accordingly, the rule expressly excludes any statement of memory or belief to prove a fact remembered or believed.

A statement by a now-deceased person relating to the execution, revocation, identification or terms of his or her will is expressly permitted, even though such statement may constitute a statement of memory or belief to prove the fact remembered or believed. The reason for this exception is special need, because the testator is dead and usually the one who best knew the facts, perhaps the only one who had any knowledge of them. While situations could easily be envisaged where the testator may have wanted to deceive the persons to whom he or she was talking, the statements are arguably reliable because of the testator’s first-hand knowledge and lack of a selfish motive.  A statement of a declarant’s past state of mind clearly is not within this exception.

Statements Made For Purpose Of Medical Diagnosis And 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 course thereof insofar as reasonably pertinent to diagnosis and treatment.81  This exception is premised on the theory that the patient’s statements to a physician are likely to be reliable because the patient has a selfish motive to be truthful: the effectiveness of medical treatment depends upon the accuracy of the information provided.82

To admit a statement made to a psychiatrist or a psychologist, the proponent is required to show that (1) the declarant’s motive in making the statement was consistent with the purpose of treatment and that the declarant was aware that the diagnosis depended on the accuracy of the statement; and (2) the psychiatrist or psychologist reasonably relied on this kind of information in reaching a diagnosis. If these requirements are satisfied, the trial judge must them conduct an analysis to ensure that the probative value of the statement is not substantially outweighed by the danger of unfair prejudice.83

Prior to the adoption of the Delaware Rules of Evidence, the Superior Court followed the then-orthodox rule which permitted a treating doctor to testify as to statements made to that doctor by a patient regarding symptoms, but not statements made to a doctor consulted for the purpose of providing expert testimony and diagnosis in connection therewith. This exception goes beyond prior practice, and a physician may now testify about any statement made to that physician for the purpose of getting that physician to testify. This is consistent with the rule which permits an expert to use such statements as a basis for the diagnosis.84

Recorded Recollection. This exception permits a memorandum or record of facts made by a witness when the matter was fresh in his or her memory to be received into evidence upon meeting three conditions: (1) the record or memorandum must be shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory; (ii) the memorandum must reflect that knowledge correctly; and (iii) the witness must have insufficient recollection to enable him or her to testify fully and accurately.85

The witness can lay the foundation for admission of this evidence by testifying as to his or her recollection of when the memorandum was made and by expressing a lack of memory as to any of the events set forth therein and stating that when the memorandum was made the witness made it as accurately and completely as he or she could.

This exception follows the general rule in making a distinction from the situation where the witness testifies based on a refreshed recollection as the result of reference to a memorandum. In that event, the memorandum cannot be offered in evidence by the party using the memorandum to refresh the witness’s recollection. But if the witness states that the memorandum does not refresh his or her recollection, then the memorandum itself may be received as evidence.

This distinction has been criticized by Wigmore, who points out that the distinction arose out of the preference for oral testimony and that the admission of the memorandum of the witness when the witness could not remember rested on necessity. Wigmore takes the view that the real necessity for the memorandum did not arise from the absence of the witness’s recollection, but from the fact that a faithful record of past recollection is more trustworthy and desirable than a present recollection of greater or less vividness. Wigmore’s conclusion is that a faithful memorandum should  be accepted  regardless of the witness’s recollection “because, for every moment of time which elapses between the act of recording and the occasion testifying, the actual recollection must be inferior in vividness to the recollection perpetuated in the records.”86

Past practice in the Superior Court was to receive the memorandum in evidence regardless of the witness’s recollection.87 The Federal Advisory Committee, in light of objections that the Wigmore view would encourage self-serving statements prepared for litigation, especially by insurance agents, investigators, etc., compromised by providing that an insufficient recollection of the witness was a prerequisite but that the recollection would be deemed insufficient if it did not enable the witness to testify fully and accurately.88 The Delaware rule follows the federal rule in this respect.

Under the view of Wigmore and the Grossman case, the memorandum itself would not go into evidence but would be read to the jury. The federal rule as adopted is in accord. The Delaware rule provides that the memorandum or record may be read into evidence or may be received as an exhibit in the court’s discretion.89 The court should weigh whether the admission as an exhibit would unduly influence the jury.90 There may be cases where it would be better to let the jury have the exhibit, and in non-jury cases the admission of the memorandum itself would be more desirable, as has been the practice in Delaware courts.

Records Of Regularly Conducted Activity. A memorandum, report, record or data compilation, in any form, of acts, events, conditions, opinions or diagnoses made at or near the time by, 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, or by certification authorized by and according to statute or rule, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business,” as defined in the rule, is very broad and includes, in addition to business as the term is ordinarily used, an institution, association, profession, occupation and calling of every kind, whether or not conducted for profit.91

The rationale for the business records exception to the hearsay rule is that such documents are likely to be trustworthy because a business regularly maintains and relies on them.92

There are four requirements to admissibility of this evidence: (i) the record must be prepared and maintained in the regular course of a business activity, the continuity of the record keeping being germane to the business activity which lends credibility to the business record; (ii) the record must have been made near or at the time of the activity recorded; (iii) there must be a lack of evidence of the unreliability of the record, i.e., the compilation of the information, its sources and the circumstances of recordation must be generally trustworthy; and (iv) a custodian or other qualified witness must be available to testify.93

A “qualified witness” need not be an employee of the entity or a participant in the creation of the record.  Any witness will qualify, so long as it can be sufficiently established that the witness understands the record-keeping system.  It must be shown either that (1) the declarant had knowledge to make accurate statements; (2) the declarant recorded statements contemporaneously with the actions which were the subject of the reports; (3) the declarant made the record in the regular course of business activity; and (4) such records were regularly kept by the business.94

The general rule is that the record must be made within a “reasonable time” of the underlying event. The definition of “reasonable time” varies from case to case, but courts generally require that the record be created within a few weeks of the event. This remoteness inquiry depends upon whether the time span between the transaction and the entry was so great as to suggest a danger of inaccuracy by lapse of memory.95

In determining whether the circumstances of recordation are trustworthy, factors to be considered include the existence of a motive and opportunity to prepare an inaccurate record, long delay prior to the preparation of the record, the nature of the information recorded, the systematic checking, regularity and continuity in maintaining the records and the business’s reliance on them. A court has discretion in determining whether business records have an inherent probability of trustworthiness.96  The foundational requirements may be established by circumstantial evidence.96.1

Once the proponent of the document meets the elements described above, the burden shifts to the opposing party to show through cross-examination that the proffered documents are unreliable and should not be admitted.97

In criminal cases, satisfying these elements is not enough to permit the introduction of the documents.  The court must also determine whether, under the circumstances of the particular case, the defendant’s constitutional right to confront witnesses has been adequately protected.  The evidence must bear sufficient indicia of reliability and rest on such solid foundation that its admission does to violate the Confrontation Clause.98

This exception, unlike the statute it replaced,99 is broad. The exception makes it clear that opinions and diagnoses included in the records are admissible.100 This was not expressly set out in the statute. However, like the past statute, application of this exception is subject to the discretion of the court.

The Comment to the Delaware rule states that this exception does not make admissible records which were created for the litigation, such as the report of a medical doctor retained to examine a party at the request of the opposing party, or a toxicologist’s report.101 However, there is no basis in the rule for excluding such records, and Judge Weinstein has taken the position that wholesale exclusion of such records is unwarranted in view of the exception for statements for purposes of medical diagnosis or treatment, which admits statements made with a view toward diagnosis alone.102 The lack of the requisite trustworthiness in the case of such records may be considered by the court and the records excluded in the court’s discretion if the circumstances warrant it.

Absence Of Entry In Records Of Regularly Conducted Activity.  Evidence that a matter is not included in the memoranda, reports, records or data compilations, in any form, kept in accordance with records of regularly conducted activity, to prove the non-occurrence or non-existence of the matter, is admissible 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.103

Public Records And Reports. To the extent not otherwise provided for, 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. This rule is based on the probability that a public officer under a duty to make a correct statement of fact will fulfill that duty properly104, and that reports prepared by the government are trustworthy.104.1

The following are not within this exception to the hearsay rule:

(i) investigative reports by police and other law-enforcement personnel;

(ii)  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;

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

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

(v) any matter as to which the sources of information or other circumstances indicate lack of trustworthiness.105

Public records from law-enforcement agencies that are investigative and have a focus toward litigation are excluded because their trustworthiness is questioned.105.1

Portions of public records which contain hearsay statements amount to hearsay within hearsay,105.2 and there must be an independent hearsay exception applicable to permit entry of those hearsay portions of the public record into evidence.105.3

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. 106

Absence Of Public Record Or Entry. To prove the absence of a record, report, statement or data compilation, in any form, or the non-occurrence or non-existence 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 or testimony that diligent search failed to disclose the record, report, statement or data compilation, or entry.107

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.108  The reason for this exception is the great lack of likelihood that any of this information will be fabricated. Accordingly, there is no requirement of proof of personal knowledge of the persons who made the record.

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.109

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.110

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 public office and an applicable statute authorizes the recording of documents of that kind in that office.111

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.112

Statements In Ancient Documents. Statements in a document in existence twenty years or more, the authenticity of which is established.113  The proponent of an ancient document must make a prima facie showing of authenticity before the document may be entered into evidence under this rule.113.1

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.114 The possibility of using an opinion poll now widely relied upon in connection with marketing has been raised under this exception.115  There must be evidence that the offered reports or publications are generally used and relied upon by the public.116

Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert 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.117 This rule applies equally to treatises in the form of videotapes and audiocassettes.118 This restriction is intended to serve two purposes: (i) to prevent jurors from being unduly impressed by the treatise and will not use the text as a starting point for conclusions untested by expert testimony, and (ii) to prevent jurors from attempting to interpret or apply the treatise on their own independent of the testimony of the expert witness(es) who are questioned about it.119

One difficulty with previous practice is that a treatise could not be used to cross-examine an expert if the expert did not recognize the treatise as a reliable authority. Some doctors refuse to recognize any book as a reliable authority. Under this exception, the refusal of an expert witness to recognize a treatise as a reliable authority cannot block cross-examination on the treatise if it can be established by other expert testimony that the work is a reliable authority. The exception even provides for judicial notice as to the reliability of a treatise, but presumably this would not  be applicable very often.

Reputation Concerning Personal Or Family History. Reputation among members of the witness’s family by blood, adoption or marriage, or among the witness’ 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.120  Unlike the exceptions relating to reputation of boundaries or general history, this exception contains no language requiring the reputation to arise before the controversy. Presumably, this eliminates the common-law requirement that the reputation be established before the controversy arose. The elimination of this requirement is because a false reputation as to these matters is not likely to be manufactured as a result of a controversy.

The Comment to this rule indicates that this exception “may modify” the case of State v. Adams.121 In that domestic violence case, after the prosecuting witness had testified to her marriage to the defendant twelve years before the trial but was unable to give an exact date, to produce a marriage certificate or to give the name of the minister who performed the ceremony, the prosecutor asked her whether she was reputed to be and looked upon by her neighbors and people who knew her to be married to the defendant. Upon objection, the court stated that others could testify as to such a reputation but that the prosecuting witness could not.  This ruling seems to be logical and there is nothing in the language of this exception which would dictate that this case is no longer applicable. Reputation is not ordinarily proved by the person whose reputation is involved, and the accuracy and objectivity of a person’s knowledge as to his or her own reputation is doubtful.  Thus, the personal knowledge required by Rule 602 may be considered to be absent.

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.122

Reputation As To Character. Reputation of a person’s character among that person’s associates or in the community.123

Judgment Of Previous Conviction. Evidence of a final judgment, 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 two years, to prove any fact essential to sustain the judgment, but not including, when offered by the State 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.124

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.125 This rule is based on the proposition that a judgment is as good or better than evidence of reputation.126

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. 127

60. See generally Fed. R. Evid. 803 advisory committee’s note.

61. D.R.E. 803(1); Wheeler v. State, 36 A.3d 310, 314 (Del. 2012); Dixon v. State, 996 A.2d 1271, 1276 (Del. 2010).

62. Warren v. State, 774 A.2d 246, 251 (Del. 2001); Cowee v. Wilmington Country Club, C.A. No. 95C-10-216 SCD, slip op. at 2, Del Pesco, J. (Del. Super. Dec. 31, 1997); Fed. R. Evid. 803(1) advisory committee’s note.

63. Taylor v. State, 76 A.3d 791, 800 (Del. 2013); Morris v. State, 795 A.2d 653, 663 (Del. 2002); Green v. St. Francis Hospital, Inc., 791 A.2d 731, 736 (Del. 2002); Warren v. State, 774 A.2d 246, 251 (Del. 2001); Paskins v. State, No. 341, 1991, slip op. at 3, Quillen, J. (Del. Jan. 17, 1983) (ORDER), disposition reported at 461 A.2d 694 (Del. 1983) (TABLE); Cowee v. Wilmington Country Club, C.A. No. 95C-10-216 SCD, slip op. at 2, Del Pesco, J. (Del. Super. Dec. 31, 1997). See also Doochack v. Hobbs, No. 322, 1993, slip op. at 7, Holland, J. (Del. May 18, 1994) (ORDER), disposition reported at 645 A.2d 568 (Del. 1994) (TABLE) (later narration of earlier event not a present sense impression).

64. Taylor v. State, 76 A.3d 791, 800 (Del. 2013); Green v. St. Francis Hospital, Inc., 791 A.2d 731, 736 (Del. 2002); Warren v. State, 774 A.2d 246, 251 (Del. 2001).

65. D.R.E. 803(2); Gannon v. State, 704 A.2d 272, 274 (Del. 1998). See also State v. Smith, Cr. A. Nos. 1N83-06-0349-0352, slip op. at 3, Martin, J. (Del. Super. Apr. 2, 1984).

66. Fed. R. Evid. 803(2) advisory committee’s note.

67. Wheeler v. State, 36 A.3d 310, 314 (Del. 2012); Morris v. State, 796 A.2d 653, 664 (Del. 2002); Gannon v. State, 704 A.2d 272, 274 (Del. 1998); Collins v. State, 420 A.2d 170, 177 (Del. 1980).

68. Dixon v. State, 996 A.2d 1271, 1276 (Del. 2010); Foster v. State, 961 A.2d 526, 529 (Del. 2008); Culp v. State, 766 A.2d 486, 489-90 (Del. 2001); Gannon v. State, 704 A.2d 272, 274 (Del. 1998); State v. Henry, C.R. I.D. No. 9405000365, slip op. at 3-4, Barron, J. (Del. Super. Mar. 24, 1995).

69. State v. Johnson, No. 9908026980 slip op. at 28-29, Cooch, J. (Del. Super. Apr. 19, 2001).

70. Dixon v. State, 996 A.2d 1271, 1276 (Del. 2010); Foster v. State, 961 A.2d 526, 529 (Del. 2008); Gannon v. State, 704 A.2d 272, 274 (Del. 1998); State v. Henry, C.R. I.D. No. 9405000365, slip op. at 3-4, Barron, J. (Del. Super. Mar. 24, 1995).

71.  Smith v. State, 669 A.2d 1, 4-5 (Del. 1995).

72. D.R.E. 803(3).  The exception does not permit a hearsay statement to demonstrate the state of   of mind of someone other than the delarant. Doochack v. Hobbs, No. 322, 1993, slip op. at 7, Holland, J. (Del. May 18, 1994) (ORDER), disposition reported at 645 A.2d 568 (Del. 1994) (TABLE).

73. Webb v. State, 663 A.2d 452, 456 (Del. 1995).

74. Johnson v. State, 983 A.2d 904, 931 (Del. 2009), cert. denied, ___ U.S. ___ (2010); Capano v. State, 781 A.2d 556, 609-10 (Del. 2001).

75. Henry v. Nanticoke Surgical Associates, P.A., 931 A.2d 460, 463 (Del. Super. 2007).

76. Johnson v. State, 983 A.2d 904, 931 (Del. 2009), cert. denied, ___ U.S. ___ (2010); Jones v. State, 798 A.2d 1013, 1016 (Del. 2002); Forrest v. State, 721 A.2d 1271, 1276 & n. 1 (Del. 1999); Derrickson v. State, 321 A.2d 497, 503 (Del. 1974); State v. McDonald, 598 A.2d 1134, 1135 (Del. Super. 1991); State v. Porter, 587 A.2d 188, 189 (Del. Super. 1990); State v. Long, 32 Del. 380, 123 A. 350, 351 (Del. O. & T. 1923).

77. State v. MacDonald, 598 A.2d 1134, 1136 (Del. Super. 1991); State v. Porter, 587 A.2d 188, 193 (Del. Super. 1990); State v. Magner, ID No. 9509007746, slip op. at 12-13, Alford, J. (Del. Super. Feb. 18, 1997).

78. Fed. R. Evid. 803(3) advisory committee’s note.

79. State v. Long, 123 A. 350 (Del. O. & T. 1923).

80. Derrickson v. State, 321 A.2d 497 (Del. 1974),

81. D.R.E. 803(4).

82. State v. Monroe, I.D. No. 0601021343, slip op. at 4, Cooch, J. (Del. Super. Oct. 31, 2008).

83. Walton v. State, 821 A.2d 871, 878 (Del. 2003); Capano v. State, 781 A.2d 556, 624 (Del.  2001).

84. D.R.E. 703. See also § 18:8.

85. D.R.E. 803(5).  This rule does not follow the federal rule. D.R.E. 803 comment.

86. 3 Wigmore on Evidence §§ 738, 739, 740 (Chadbourn rev. ed. 1970).

87. Grossman v. Delaware Electric Power Co., 155 A. 806 (Del. Super. 1929), approved the Wigmore view. The Delaware Supreme Court seemed to approve this view in Johnson v. State, 253 A.2d 206 (Del. 1969), but the point was thrown into confusion by a later case, Millman v. Millman, 359 A.2d 158, 160 (Del. 1976).

88. Fed. R. Evid. 803(5) advisory committee’s note.

89. D.R.E. 803(5).  Prior to 2001, the comment to D.R.E. 803 stated that subsection 804(5) should be read more broadly than its literal language, and should encompass a statement by the declarant that was recorded by another party (such as an audio or video tape) if it appears that the statement does in fact reflect the prior knowledge of the declarant.  This language was removed in the 2001 revision to the Delaware Rules of Evidence.

90. D.R.E. 803, comment.

91. D.R.E. 803(6).

92. Brown v. Liberty Mut. Ins. Co., 774 A.2d 232, 239 (Del. 2001).

93. McLean v. State, 482 A.2d 101, 104 (Del. 1984). See also Rennick v. Northern Maryland Corp., C.A. No. 87A-OC-6, slip op. at 5, Stiftel, J. (Del. Super. Feb. 9, 1989).

94.  Trawick v. State, 845 A.2d 505, 508-09 (Del. 2004).

95. Brown v. Liberty Mut. Ins. Co., 774 A.2d 232, 239 (Del. 2001).

96. Rennick v. Northern Maryland Corp., C.A. No. 87A-OC-6, slip op. at 6-8, Stiftel, J. (Del. Super. Feb. 9, 1989).

96.1. Midland Funding LLC v. Johnson, CPU4-10-007831, slip op. at 11, Rocanelli, J. (Del. Comm. Pls. Jan. 26, 2012, amended Feb. 1, 2012).

97.  State v. McCabe, Nos.S95-02-0627-0629, slip op. at 8, Lee, J. (Del. Super. Aug. 14, 1995).

98.  Henson v. State, 332 A.2d 773, 775 (Del. 1975); State v. McCabe, Nos.S95-02-0627-0629, slip op. at 5, Lee, J. (Del. Super. Aug. 14, 1995).

99. Former 10 Del. C. §4309. The only difference which may be of significance is that the statute dealt with records “made in the regular course of business,” while the exception deals with records kept in the course of “a regularly conducted business activity.” This change in the language from regular course of business to a course of regularly conducted business activity was designed to take the stress off of the repetitiveness and routine and to put the emphasis on the entry having been made in the course of a regular business activity. Fed. R. Evid. 803(6) advisory committee’s note.

100.  State v. Sailer, ID Nos. 9412009559 & 9412009572, slip op. at 38-39, Carpenter, J. (Del. Super. Sept. 13, 1995).

101. D.R.E. 803 comment.

102. 4 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 803(6)[06] at 803-201-02 (1993).

103. D.R.E. 803(7). Without this rule there would be some doubt as to the admissibility of such evidence. See State v. Tucker, 139 A. 253 (Del. Gen. Sess. 1927).

104. Frick v. American President Lines, C.A. No. 3766, slip op. at 4, Marvel, V.C. (Del. Ch. June 18, 1985).

104.1. Ruffin v. State, 131 A.3d 295, 301 (Del. 2015).

105. D.R.E. 803(8). This rule does not follow the federal rule, but instead follows Uniform Rule of Evidence 803(8). D.R.E. 803 comment. The distinction is that the Delaware rule absolutely exempts investigative reports by police and other law enforcement personnel, government agencies and officials (except where the government is a party) and factual findings resulting from special investigations of a particular complaint, case or incident. These exemptions reflect the view that investigative conclusions of this type do not have the reliability that would justify using hearsay reports in evidence.

105.1. Ruffin v. State, 131 A.3d 295, 301 (Del. 2015).

105.2.  See §16.7.

105.3. Ozdemir v. State, 96 A.3d 672, 674-75 (Del. 2014).

106. D.R.E. 803(9).

107. D.R.E. 803(10). The certification must be in accordance with D.R.E. 902. See also Ch. Ct. R. 44; Super. Ct. Civ. R. 44; Comm. Pls. Ct. Civ. R. 44; Fam. Ct. Civ. R. 44.

108. D.R.E. 803(11).

109. D.R.E. 803(12).

110. D.R.E. 803(13).

111. D.R.E. 803(14).

112. D.R.E. 803(15).

113. D.R.E. 803(16).

113.1.  CNH Industrial America LLC v. American Casualty Co. of Reading, PA, C.A. No. N12C-07-108-EMD-CCLD, slip op. at 7, Davis, J. (Del. Super. Mar. 10, 2015).

114. D.R.E. 803(17).

115. See Ellis v. International Playtex, Inc., 745 F.2d 292, 303 n. 10  (4th Cir. 1984). It has also been suggested that statistical survey and poll data may be admitted under the residual exception of Rule 803(24) if it is shown that the poll was conducted in accordance with generally accepted survey principles and that the results are used in a statistically correct way. Pittsburgh Press Club v. United States, 579 F.2d 751, 757-58 (3d Cir. 1978).

 116. Jianniney v. State, 962 A.2d 229, 232 (Del. 2008).

 117. D.R.E. 803(18); Berry v. Cardiology Consultants, P.A., No. 614, 2006, Steele, J. (Del. Oct. 2, 2007), disposition reported at 935 A.2d 255 (Del. 2007) (TABLE).

 118. Bonavita v. Kent General Hospital, C.A. No. 84C-JA-70, slip op. at 3 n. 1, Poppiti, J. (Del. Super. Apr. 7, 1989).

 119. Berry v. Cardiology Consultants, P.A., No. 614, 2006, Steele, J. (Del. Oct. 2, 2007), disposition reported at 935 A.2d 255 (Del. 2007) (TABLE).

 120. D.R.E. 803(19).

 121. State v. Adams, 83 A. 936 (Del. Gen. Sess. 1912).

 122. D.R.E. 803(20),

 123. D.R.E. 803(21).

 124. D.R.E. 803(22). See also Insurance Co. of North America v. Dubroff, C.A. No. 6316, slip op. at 3, Hartnett, V.C. (Del. Ch. Oct. 12, 1984) (guilty plea is admissible).  This rule does not follow the federal rule. D.R.E. 603 comment.

 125. D.R.E. 803(23).

 126. Fed. R. Evid. 803(23) advisory committee’s note.

 127. D.R.E. 803(25).

 © 2016  David L. Finger