New hearsay exception now in effect

As of yesterday, there is a new subsection to IRE 803, the rule which deals with hearsay exceptions where the availability of declarant is immaterial. The new rule permits the admission of medical, dental and other test results without having a witness lay foundation. The text of the new rule is as follows:

"(23) Medical or dental tests and test results for diagnostic or treatment purposes. A written, graphic, numerical, symbolic or pictorial representation of the results of a medical or dental test performed for purposes of diagnosis or treatment for which foundation has been established pursuant to Rule 904, unless the sources of information or other circumstances indicate lack of trustworthiness. This exception shall not apply to:

(A) psychological tests
(B) reports generated pursuant to I.R.C.P. 35(a)
(C) medical or dental tests performed in anticipation of or for purposes of litigation or
(D) public records specifically excluded from the Rule 803(8) exception to the hearsay rule."

There is also a new rule 904 which sets out the foundational requirements for the Rule 803(23) exception.

In sum, the proposed exhibit must identify the person or entity who conducted or interpreted the test, the name of the patient, and the date when the test was performed. Notice must be given at least 45 days before trial. And, the opposing party may file a written objection within 14 days or the document. Otherwise, the document "shall be deemed authentic and admissible without testimony or further identification."

Remember, this exception only applies to documents made for diagnostic purposes. Tests made for litigation purposes are not included and should be objected to under existing hearsay rules and the confrontation clause as testimonial evidence. Also, if you get a notice and you want the foundational witness at trial, you'd better subpoena the witness yourself.

Dennis