hearsay rule in Missouri

2008As our Supreme Court explained in State v. Davidson, 982 S.W.2d 238 (Mo. banc 1998): A declaration against a penal interest is not admissible as an exception to the hearsay rule, State v. Blankenship, 830 S.W.2d 1, 6 (Mo. banc 1992), but may be admissible as a due process right of the defendant only if the declarant is shown to be unavailable as a witness, there are considerable assurances of the statement’s reliability, and the statement, if true, would exonerate the defendant.

1998A declaration against a penal interest is not admissible as an exception to the hearsay rule, State v. Blankenship, 830 S.W.2d 1, 6 (Mo. banc 1992), but may be admissible as a due process right of the defendant only if the declarant is shown to be unavailable as a witness, there are considerable assurances of the statement’s reliability, and the statement, if true, would exonerate the defendant.

2007However, an exception to the hearsay rule exists for statements of a co-conspirator that are in furtherance of the conspiracy or have the purpose of concealing the crime. 11 Id.; State v. Pizzella, 723 S.W.2d 384, 388 (Mo.1987).

2007However, an exception to the hearsay rule exists for statements of a co-conspirator that are in furtherance of the conspiracy or have the purpose of concealing the crime. [11] Id.; *409 State v. Pizzella, 723 S.W.2d 384, 388 (Mo. 1987).

1989Our Supreme Court, in analyzing the Chambers case, noted that “[generally in Missouri, declarations against penal interests are not admissible exceptions to the hearsay rule in criminal proceedings.” State v. Turner, 623 S.W.2d 4, 8 [6, 7] (Mo. banc 1981), cert. denied, 456 U.S. 931 , 102 S.Ct. 1982 , 72 L.Ed.2d 448 (1982).

1985In re *564 sponse to the disclosure, the state filed a motion in limine to preclude the defense witnesses’ testimony that they had heard another or others admit committing the murder upon the ground that third party declarations are not admissible exceptions to the hearsay rule in criminal proceedings, citing State v. Turner, 623 S.W.2d 4 (Mo. banc 1981); and State v. Gullett, 633 S.W.2d 454 (Mo.App.1982).

2022“A hearsay objection does not preserve constitutional claims relating to the same testimony.” State v. Minner, 311 S.W.3d 313, 319 (Mo. App. W.D. 2010) (finding the defendant’s hearsay objection at trial did not preserve his claim on appeal that the hearsay was testimonial and thus violated his rights under the Confrontation Clause); see also State v. Kemp, 212 S.W.3d 135, 147 (Mo. banc 2007) (Although the Confrontation Clause analysis “is similar to the hearsay analysis, this is a separate and distinct evidentiary determination.”); State v. March, 216 S.W.3d 663, 665 (Mo. banc 2007) (“falling

2022“A hearsay objection does not preserve constitutional claims relating to the same testimony.” State v. Minner, 311 S.W.3d 313, 319 (Mo. App. W.D. 2010) (finding the defendant’s hearsay objection at trial did not preserve his claim on appeal that the hearsay was testimonial and thus violated his rights under the Confrontation Clause); see also State v. Kemp, 212 S.W.3d 135, 147 (Mo. banc 2007) (Although the Confrontation Clause analysis “is similar to the hearsay analysis, this is a separate and distinct evidentiary determination.”); State v. March, 216 S.W.3d 663, 665 (Mo. banc 2007) (“falling

2022Counsel for the juvenile officer responded that the testimony was admissible pursuant to the hearsay exception for statements by juveniles established in In re Marriage of P.K.A., 725 S.W.2d 78, 81 (Mo. App. S.D. 1987), and that L.T.K. and J.L.K. were juveniles when they made the statements.

2020One exception to the hearsay rule is the exception articulated in In re Marriage of P.K.A., 725 S.W.2d 78, 81-82 (Mo.App.

1991When testimony is admissible under any recognized exception to the hearsay rule, then “neither the objection that it is hearsay nor the objection that the accused is denied the right to confrontation and cross-examination is valid.” Pieron at 307 , quoting State v. Spica, 389 S.W.2d 35, 46 (Mo.1965).

1988When testimony is admissible under any recognized exception to the hearsay rule, then “neither the objection that it is hearsay nor the objection that the accused is denied the right to confrontation and cross-examination is valid.” State v. Spica, 389 S.W.2d 35, 46 [16] (Mo. 1965). “ ‘Lack of opportunity for cross-examination is not a question involved when evidence is admissible under an established exception to the hearsay rule.’ ” Id. (quoting Osborne v. Purdome, 250 S.W.2d 159, 163 (Mo. banc 1952)).

2006The rationale for this exception to the hearsay rule is that “where the statement is made under the immediate and uncontrolled domination of the senses as a result of the shock produced by the event, the utterance may be taken as expressing the true belief of the declarant.” Id. (quoting Van Orman, 642 S.W.2d at 639 ).

2006The rationale for this exception to the hearsay rule is that “where the statement is made under the immediate and uncontrolled domination of the senses as a result of the shock produced by the event, the utterance may be taken as expressing the true belief of the declarant.” Id. (quoting Van Orman, 642 S.W.2d at 639 ).

2023“A hearsay statement contained within other hearsay evidence is admissible only where both the statement and the original hearsay evidence are within exceptions to the hearsay rule.” State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997).

2003In order to qualify a business record as an exception to the hearsay rule under section 490.680, three conditions must be met: (1) either the custodian of records or other qualified witness testifies to the identity and mode of preparation of the record; (2) the custodian or qualified witness testifies that the record was made in the regular course of business, at or near the time of the act, condition or event; and (3) the court finds admission of the record is justified by the *651 sources of information and the method and time of preparation of the record. 4 In re Estate of Graham, 59 S.W.3

2023See Breeding v. Dodson Trailer Repair, Inc., 679 S.W.2d 281, 285 (Mo. banc 1984).

1996Statements to a Treating Physician In an exception to the hearsay rule, Missouri law allows a treating physician to testify what a patient said to him or her “insofar as such statements are reasonably pertinent to diagnosis and treatment.” Breeding v. Dodson Trailer Repair Inc., 679 S.W.2d 281, 285 (Mo. banc 1984); see also State v. Naucke, 829 S.W.2d 445, 458 (Mo. banc 1992), cert. denied, 506 U.S. 960 , 113 S.Ct. 427 , 121 L.Ed.2d 348 .

2004Appellant correctly argues that the “underlying rationale for the hearsay rule is that ‘for the purpose of seeking trustworthiness of testimonial assertions, and of affording the opportunity to test the credit of the witness, such assertions are to be made in court, subject to cross-examination.’ ” Id. (quoting State v. Chemick, 280 S.W.2d 56, 60 (Mo.1955)).

1985Although some courts have called it an exception to the hearsay rule, State v. Ashley, 616 S.W.2d 556, 561 (Mo.App.1981); State v. Houston, 607 S.W.2d 183, 185 (Mo.App.1980); State v. Green, 575 S.W.2d 211, 212 (Mo.App.1978), it seems clear that “[a]n out-of-court statement is hearsay only if offered to prove the truth of the matters asserted therein.” State v. Fukr, 660 S.W.2d 443, 447 (Mo.App.1983); State v. Evans, 637 S.W.2d 62, 66 (Mo.App.1982); State v. Harris, 620 S.W.2d 349, 355 (Mo. banc 1981); State v. Giannini, 606 S.W.2d 780, 781 (Mo.App.1980); State v. Finley, 588 S.W.2d 229, 231 (

1991The res gestae exception to the hearsay rule refers to “those exclamations and statements made by either the participants, victims or spectators to a crime immediately before, during, or immediately after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement.” State v. White, 621 S.W.2d 287, 294-295 (Mo.1981), quoting State v. Hook, 432 S.W.2d 349, 352 (Mo.1968).

1982However one of the well-recognized exceptions to the hearsay rule is an “excited utterance.” State v. White, supra; State v. Rogers, 585 S.W.2d 498 (Mo.App.1979); State v. Webb, 583 S.W.2d 536 (Mo.App.1979).

2024The statute makes clear that competent evidence is prefaced by the relevance of the evidence, and the circuit court is required to make a reliability determination pertaining to the source of the records and the method and time of preparation of the documents. § 490.680; Discover Bank v. Smith, 326 S.W.3d 120, 123 (Mo. App. S.D. 2010) (quoting Davolt v. Highland, 119 S.W.3d 118, 134 (Mo. App. W.D. 2003) (“When the [aforementioned] enumerated statutory requirements are met, ‘the statute invests the record with a presumptive 9 verity, and so excepts them from the hearsay rule.’”)).

2014When a document meets these statutory requirements, it receives a “presumptive verity, and so excepts [it] from the hearsay rule.” Davolt v. Highland, 119 S.W.3d 118, 134 (Mo.App.W.D.2003) (citation omitted).

2007See State v. Taylor, 486 S.W.2d 239, 242-43 (Mo.1972).

1984State v. Taylor, 486 S.W.2d 239, 242 (Mo.1972).

2003It is no less a violation of the hearsay rule to set up a set of circumstances by the testimony of a witness which invites the inference of hearsay.’” 619 S.W.2d at 322-23 , quoting State v. Valentine, 587 S.W.2d 859, 861 (Mo. banc 1979).

1981It is no less a violation of the hearsay rule to set up a set of circumstances by the testimony of a witness which invites the inference of hearsay.” State v. Valentine, 587 S.W.2d 859, 861 (Mo. banc 1979).

2001State v. Grant, 560 S.W.2d 39, 43 (Mo.App.1977).

1997A declaration against interest is admissible as an exception to the hearsay rule and constitutes statements “made by persons not a party or in privity with a party to the suit.” State v. Grant, 560 S.W.2d 39, 42 (Mo.App.1977)(quoting Carpenter v. Davis, 435 S.W.2d 382, 384 (Mo. banc 1968))(further citation omitted).

2000We also note, however, that in State v. Bell, 950 S.W.2d 482 (Mo. banc 1997), the Missouri Supreme Court reaffirmed that the state of mind exception only permits admission of the statements “in limited situations when they are relevant and the relevancy outweighs their prejudicial effect.” Id. at 483 (quoting State v. Boliek, 706 S.W.2d 847, 850 (Mo. banc), cert. denied, 479 U.S. 903 , 107 S.Ct. 302 , 93 L.Ed.2d 276 (1986)).

1997See, e.g., State v. Boliek, 706 S.W.2d 847, 850 (Mo. banc 1986), cert. denied, 479 U.S. 903 , 107 S.Ct. 302 , 93 L.Ed.2d 276 (1986).

2004Appellant correctly argues that the “underlying rationale for the hearsay rule is that ‘for the purpose of seeking trustworthiness of testimonial assertions, and of affording the opportunity to test the credit of the witness, such assertions are to be made in court, subject to cross-examination.’ ” Id. (quoting State v. Chemick, 280 S.W.2d 56, 60 (Mo.1955)).

2002“The essential principle of the hearsay rule is that for the purpose of securing trustworthiness of testimonial assertions, and of affording the opportunity to test the credit of the witness, such assertions are to be made in court, subject to cross-examination.” State v. Chernick, 280 S.W.2d 56, 60 (Mo.1955).

1991The res gestae exception to the hearsay rule refers to “those exclamations and statements made by either the participants, victims or spectators to a crime immediately before, during, or immediately after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement.” State v. White, 621 S.W.2d 287, 294-295 (Mo.1981), quoting State v. Hook, 432 S.W.2d 349, 352 (Mo.1968).

1991The trial court correctly ruled that the res gestae exception to the hearsay rule was inapplicable in the case at bar because the res gestae exception would require that the otherwise objectionable hearsay statements be made as a “spontaneous reaction or utterance inspired by the excitement of the occasion.” Id.

2024“The essential principle of the hearsay rule is to secure trustworthiness of testimonial assertions by affording the opportunity to test the credit of the witness, and it is for this reason that such assertions are to be made in court subject to cross-examination.” State v. Kirkland, 471 S.W.2d 191, 193 (Mo. 1971).

1985The hearsay rule rests on the postulate, therefore, that “ ‘the many possible deficiencies, suppressions, sources of error and untrust-worthiness, which lie underneath the bare untested assertion of a witness may be best brought to light and exposed by the test of cross-examination.’ ” State v. Kirkland, 471 S.W.2d 191, 193 [1] (Mo.1971).

2000State v. Ghiffin, 662 S.W.2d 854, 858 (Mo. banc 1983), cert. denied, 469 U.S. 873 , 105 S.Ct. 224 , 83 L.Ed.2d 153 (1984).

1989The rationale of this exception to the hearsay rule is that where the statement is made under the immediate and uncontrolled domination of the senses as a result of the shock produced by the event, the utterance may be taken as expressing the true belief of the de-clarant. (citation omitted) State v. Griffin, 662 S.W.2d 854, 858 (Mo. banc 1983). cert. denied, 469 U.S. 873 , 105 S.Ct. 224 , 83 L.Ed.2d 153 (1984) (quoting State v. Van Orman, 642 S.W.2d 636, 639 (Mo.1982)).

1982See also the there cited and quoted case of Miller v. Brunson Const. Co., 250 S.W.2d 958 (Mo.1952), holding that such statements do not make the hearsay rule applicable.

1980The evidence was not being offered to establish the truth or falsity of what was contained therein but rather to establish *754 notice to the defendant of the condition concerning the padding, therefore the evidence was not hearsay. 2 Our Western District Court recognized this principle in Rinker v. Ford Motor Co., 567 S.W.2d 655, 663 [9] (Mo.App.1978). 3 The court, citing Miller v. Brunson Const. Co., 250 S.W.2d 958 [9] (Mo.1952), said: “ ‘Where, regardless of the truth or the falsity of a statement, the fact that it has been made is relevant, the hearsay rule does not apply, but the statemen

2025Hendricks' tacit admissions are not hearsay at all, as "the hearsay rule is designed to protect a party from out-of-court declarations of other persons who cannot be cross-examined . . . ." Brown, 833 S.W.2d at 438 (citing IV Wigmore, Evidence sec. 1048 at 4 (1972)).

2001Courts find admissions of party opponents outside the hearsay doctrine because “the hearsay rule is designed to protect a party from out-of-court declarations of other persons who cannot be cross-examined as to the bases of the their perceptions, the reliability of their observations, and the degree of their biases.” Id.

2021“When the enumerated statutory requirements are met, the statute invests the record with a presumptive verity, and so excepts them from the hearsay rule.” Id. (internal quotation marks omitted).

2021“Section 490.680 … sets forth the foundational requirements for a document to be admitted under the business record exception to the hearsay rule.” C & W Asset Acq., LLC v. Somogyi, 136 S.W.3d 134, 138 (Mo. App. S.D. 2004).