March 20, 2017 Articles

It’s a Family Affair under Rule 803(13)

Litigants have several options for getting facts concerning family or personal history admitted

by Mary Hallerman

Facts contained in family records have long been excepted from the bar on hearsay. Rule 803(13) codifies this long-standing exception, permitting the admissibility of “a statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.” Fed. R. Evid. 803(13). Although the family records exception is infrequently discussed or litigated, Mueller and Kirkpatrick observe that it best demonstrates “the depths of obscurity, and the flavor of antiquity that come with the hearsay doctrine.” 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:97 (4th ed.).

The reasoning behind Rule 803(13) is that it is unlikely that a family would allow an untruthful inscription or entry concerning personal or family history to go uncorrected. 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 803.15 (Mark S. Brodin, ed., Matthew Bender 2d ed. 1997). In other words, the circumstances under which these statements were made—for example, at a funeral, in an engraving on a wedding ring, or in a family history—renders these statements inherently trustworthy. Mueller & Kirkpatrick, supra, § 8:87.

Because of the inherent reliability of these statements, the proponent of such evidence does not need to establish that the statement was made by a family member or by someone with personal knowledge as long as the statement has been recognized by the family. 1-803 Weissenberger’s Federal Evidence § 803.58 (Matthew Bender 7th ed.); Weinstein & Berger, supra, § 803.15. Without proof of general family recognition, however, personal knowledge by the person making the statement—for example, that the person making the notation of the date of birth in the family Bible had personal knowledge of the birth of her family member—will need to be shown. 7 Michael H. Graham, Handbook of Federal Evidence § 803:13.

The types of factual statements in family records encompassed in this exception are not specified in Rule 803(13). Rather, they are (confusingly) found in Rule 803(11): statements about “birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history.” H.R. Judiciary Comm., H.R. Rep. No. 93-650, at 15 (1973). The exception has come up in cases involving

  • property disputes (see, e.g., Lewis v. Marshall, 30 U.S. 470 (1831) (considering evidence of date of death recorded in family Bible in property dispute));
  • eligibility for Social Security benefits (see, e.g., McMorrow v. Schweiker, 561 F. Supp. 584 (D.N.J. 1982) (holding widow not entitled to benefits due to failure to prove marriage and noting various evidence widow could have submitted, including family records, to demonstrate the marriage);
  • estate proceedings; and
  • federal recognition of Native American tribes (see, e.g., Ramapough Mt. Indians v. Babbitt, Civil Action No. 98-2136, 2000 U.S. Dist. LEXIS 14479, at *8–10 (D.D.C. Sept. 30, 2000) (noting that family records under Rule 803(13) would be acceptable evidence to demonstrate descent from historical Native American tribe)).

Overall, courts have construed “personal or family history” in Rule 803(13) narrowly, so as to include only those matters specified in Rule 803(11). 2 Robert P. Mosteller et al., McCormick on Evidence § 322 (7th ed.).

Rule 803(13) shares similarities with the two other family history hearsay exceptions, Rule 803(19) and Rule 804(b)(4), but there are some important differences. Rule 803(19) permits “reputation” evidence among family members, community members, or associates concerning the person’s “birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.” The availability of the declarant is immaterial to the reputation exception under Rule 803(19) as under Rule 803(13), but unlike 803(13), Rule 803(19) also involves oral statements and applies to what is generally said and believed, rather than specific facts recorded in documents. 5 Clifford S. Fishman & Anne T. McKenna, Jones on Evidence § 35:39 (7th ed.). When the declarant is unavailable, Rule 804(b)(4) permits evidence concerning the declarant’s family history—“even though the declarant had no way of acquiring personal knowledge about that fact”—or concerning another person’s family history where the declarant was “intimately associated” with that person.

Litigants thus have several options for getting facts concerning family or personal history admitted. Of course, any such evidence will be subject to other evidentiary requirements, including Rules 402, 403, and 1002.

 

Mary Hallerman is an associate at McDermott Will & Emery LLP in Washington, D.C.

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