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They give the example of a sign which says: "Parking prohibited on Sundays. Which it does not. I suppose it indicates the likelihood of that, but it by no means tests one's imagination to conceive of a case in which parking is prohibited on Sunday and also on one or more other days. Big Think Edge For You. Big Think Edge For Business. Preview an Edge video. Sponsored by the Institute for Humane Studies Insiders and outsiders keep democracy alive: Whistleblowing, civil disobedience and discourse. Sponsored by the Institute for Humane Studies Why pitting prejudices against each other keeps society free.

What does this phrase even possibly mean? Please help me out here. Surprising Science. Astrophysicists: gamma-ray jets exceed the speed of light. Why Germany is a blank spot on Google's Street View. Strange Maps. California researchers develop drug cocktail that reverses aging — results 'remarkably promising'. However, the phrase draws attention to the rarity of the exception, and in so doing establishes the general accuracy of the rule.

In what Fowler describes as the "most objectionable" variation of the phrase, [1] this sort of use comes closest to meaning "there is an exception to every rule", or even that the presence of an exception makes a rule more true; these uses Fowler attributes to misunderstanding.

The Oxford English Dictionary includes this meaning in its entry for the word exception , citing the example from Benjamin Jowett 's book Essays , in which he writes: "We may except one solitary instance an exception which eminently proves the rule. Under this version of the phrase, the word 'proof' is to be understood in its archaic form to mean the word 'test' this use can be seen in the phrase the proof of the pudding is in the eating [9].

Fowler's example is of a hypothetical critic , Jones, who never writes a favourable review. So it is surprising when we receive an exception: a favourable review by Jones of a novel by an unknown author. Then it is discovered that the novel is his own, written under a pseudonym. The exception tested 'proved' the rule and found that it needed to be understood a little more precisely - namely, that Jones will never write a favourable review, except of his own work.

Holton argues that this origin involves a "once-heard etymology" which "makes no sense of the way in which the expression is used. Fowler describes this use as " jocular nonsense". He presents the exchange: 'If there is one virtue I can claim, it is punctuality. From Wikipedia, the free encyclopedia.

Figure of speech. Oxford: Oxford University Press. Mental Floss. United States , 93 U. Safety Casualty Co. United States , 97 U. Industrial Commission , 78 Colo. Stewart , N. Moreover, under Rule a the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.

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How Does an Exception Prove a Rule?

Proof of declarant's perception by his statement presents similar considerations when declarant is identified. People v. Poland , 22 Ill. However, when declarant is an unidentified bystander, the cases indicate hesitancy in upholding the statement alone as sufficient, Garrett v. Howden , 73 N. Dye , Wash. Permissible subject matter of the statement is limited under Exception [paragraph] 1 to description or explanation of the event or condition, the assumption being that spontaneity, in the absence of a startling event, may extend no farther.

See Sanitary Grocery Co. Snead , 67 App. Ball , U.

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Exception 3 is essentially a specialized application of Exception [paragraph] 1 , presented separately to enhance its usefulness and accessibility. Shepard v. United States , U. The rule of Mutual Life Ins. Hillman , U. The carving out, from the exclusion mentioned in the preceding paragraph, of declarations relating to the execution, revocation, identification, or terms of declarant's will represents an ad hoc judgment which finds ample reinforcement in the decisions, resting on practical grounds of necessity and expediency rather than logic.

Exception 4. Even those few jurisdictions which have shied away from generally admitting statements of present condition have allowed them if made to a physician for purposes of diagnosis and treatment in view of the patient's strong motivation to be truthful. The same guarantee of trustworthiness extends to statements of past conditions and medical history, made for purposes of diagnosis or treatment.

It also extends to statements as to causation, reasonably pertinent to the same purposes, in accord with the current trend, Shell Oil Co. Industrial Commission , 2 Ill. Statements as to fault would not ordinarily qualify under this latter language.

Exception To The Rule

Thus a patient's statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light. Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included. Conventional doctrine has excluded from the hearsay exception, as not within its guarantee of truthfulness, statements to a physician consulted only for the purpose of enabling him to testify.

While these statements were not admissible as substantive evidence, the expert was allowed to state the basis of his opinion, including statements of this kind. The distinction thus called for was one most unlikely to be made by juries. The rule accordingly rejects the limitation.

This position is consistent with the provision of Rule that the facts on which expert testimony is based need not be admissible in evidence if of a kind ordinarily relied upon by experts in the field. Exception 5. Kelly , F. Many additional cases are cited in Annot. The guarantee of trustworthiness is found in the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them. Owens v. State , 67 Md. The principal controversy attending the exception has centered, not upon the propriety of the exception itself, but upon the question whether a preliminary requirement of impaired memory on the part of the witness should be imposed.

The authorities are divided. If regard be had only to the accuracy of the evidence, admittedly impairment of the memory of the witness adds nothing to it and should not be required. People , Colo. State , Md. Bindhammer , 44 N. Nevertheless, the absence of the requirement, it is believed, would encourage the use of statements carefully prepared for purposes of litigation under the supervision of attorneys, investigators, or claim adjusters. O'Brien , U. Webb , F. Hudson Pulp and Paper Corp. Federal Dairy Co. But cf. United States v. Adams , F. No attempt is made in the exception to spell out the method of establishing the initial knowledge or the contemporaneity and accuracy of the record, leaving them to be dealt with as the circumstances of the particular case might indicate.

Multiple person involvement in the process of observing and recording, as in Rathbun v. Brancatella , 93 N. Locating the exception at this place in the scheme of the rules is a matter of choice. There were two other possibilities. The first was to regard the statement as one of the group of prior statements of a testifying witness which are excluded entirely from the category of hearsay by Rule d 1.

The other possibility was to include the exception among those covered by Rule Since unavailability is required by that rule and lack of memory is listed as a species of unavailability by the definition of the term in Rule a 3 , that treatment at first impression would seem appropriate. The fact is, however, that the unavailability requirement of the exception is of a limited and peculiar nature. Accordingly, the exception is located at this point rather than in the context of a rule where unavailability is conceived of more broadly. Exception 6 represents an area which has received much attention from those seeking to improve the law of evidence.

The Commonwealth Fund Act was the result of a study completed in by a distinguished committee under the chairmanship of Professor Morgan. Morgan et al. With changes too minor to mention, it was adopted by Congress in as the rule for federal courts. A number of states took similar action.

Model Code Rule and Uniform Rule 63 13 also deal with the subject. Difference of varying degrees of importance exist among these various treatments. These reform efforts were largely within the context of business and commercial records, as the kind usually encountered, and concentrated considerable attention upon relaxing the requirement of producing as witnesses, or accounting for the nonproduction of, all participants in the process of gathering, transmitting, and recording information which the common law had evolved as a burdensome and crippling aspect of using records of this type.

In their areas of primary emphasis on witnesses to be called and the general admissibility of ordinary business and commercial records, the Commonwealth Fund Act and the Uniform Act appear to have worked well. The exception seeks to preserve their advantages. On the subject of what witnesses must be called, the Commonwealth Fund Act eliminated the common law requirement of calling or accounting for all participants by failing to mention it.

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Mortimer , F. United States , F. Model Code Rule and Uniform Rule 63 13 did likewise. The exception follows the Uniform Act in this respect. The element of unusual reliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation. The result is a tendency unduly to emphasize a requirement of routineness and repetitiveness and an insistence that other types of records be squeezed into the fact patterns which give rise to traditional business records.

Amplification of the kinds of activities producing admissible records has given rise to problems which conventional business records by their nature avoid. They are problems of the source of the recorded information, of entries in opinion form, of motivation, and of involvement as participant in the matters recorded.

Sources of information presented no substantial problem with ordinary business records. An illustration is the police report incorporating information obtained from a bystander: the officer qualifies as acting in the regular course but the informant does not. The leading case, Johnson v. Lutz , N. Most of the authorities have agreed with the decision. Gencarella v. Fyfe , F.

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Robinson , F. Moore , F. Bair Transport, Inc. Hawkins v. Gorea Motor Express, Inc. Entries in the form of opinions were not encountered in traditional business records in view of the purely factual nature of the items recorded, but they are now commonly encountered with respect to medical diagnoses, prognoses, and test results, as well as occasionally in other areas.

New York Life Ins. Taylor , 79 U. Dow Chemical Co. Other federal decisions, however, experienced no difficulty in freely admitting diagnostic entries. Reed v. Order of United Commercial Travelers , F. Commissioner of Internal Revenue , F. Erickson , F. Hogan , F. Rulon , F. In the state courts, the trend favors admissibility. Borucki v. MacKenzie Bros. Louis Public Service Co. Kohlmeyer , N. Weis , Ohio St. In order to make clear its adherence to the latter position, the rule specifically includes both diagnoses and opinions, in addition to acts, events, and conditions, as proper subjects of admissible entries.

Problems of the motivation of the informant have been a source of difficulty and disagreement. In Palmer v. Hoffman , U.

The report was prepared for use in litigating, not railroading. While the opinion mentions the motivation of the engineer only obliquely, the emphasis on records of routine operations is significant only by virtue of impact on motivation to be accurate. Absence of routineness raises lack of motivation to be accurate. Palmer , F. The direct introduction of motivation is a disturbing factor, since absence of motivation to misrepresent has not traditionally been a requirement of the rule; that records might be self-serving has not been a ground for exclusion.

A physician's evaluation report of a personal injury litigant would appear to be in the routine of his business. If the report is offered by the party at whose instance it was made, however, it has been held inadmissible, Yates v. New York, N. The decisions hinge on motivation and which party is entitled to be concerned about it. Professor McCormick believed that the doctor's report or the accident report were sufficiently routine to justify admissibility.

Yet hesitation must be experienced in admitting everything which is observed and recorded in the course of a regularly conducted activity. Efforts to set a limit are illustrated by Hartzog v. Ware , F. See also Exception [paragraph] 8 , infra , as to the public record aspects of records of this nature. Some decisions have been satisfied as to motivation of an accident report if made pursuant to statutory duty, United States v.

Matthews v. The formulation of specific terms which would assure satisfactory results in all cases is not possible. Occasional decisions have reached for enhanced accuracy by requiring involvement as a participant in matters reported. Clainos v. United States , 82 U. The rule includes no requirement of this nature.

Wholly acceptable records may involve matters merely observed, e. It includes, but is by no means limited to, electronic computer storage. The term is borrowed from revised Rule 34 a of the Rules of Civil Procedure. Exception 7. Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence. Uniform Rule 63 14 , Comment. While probably not hearsay as defined in Rule , supra , decisions may be found which class the evidence not only as hearsay but also as not within any exception.

In order to set the question at rest in favor of admissibility, it is specifically treated here. Exception 8. Public records are a recognized hearsay exception at common law and have been the subject of statutes without number. See, for example, 28 U. Kay v. The rule makes no distinction between federal and nonfederal offices and agencies.

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Justification for the exception is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record. Wong Wing Foo v. McGrath , F. As to items a and b , further support is found in the reliability factors underlying records of regularly conducted activities generally. See Exception [paragraph] 6 , supra. Perrin , U. Van Hook , F. Kelley , F. Meyer , F. The disagreement among the decisions has been due in part, no doubt, to the variety of situations encountered, as well as to differences in principle.

Sustaining admissibility are such cases as United States v. Dumas , U. Pittsburgh-Des Moines Steel Co. To the opposite effect and denying admissibility are Franklin v. Skelly Oil Co. Dulles , F. Police reports have generally been excluded except to the extent to which they incorporate firsthand observations of the officer. Various kinds of evaluative reports are admissible under federal statutes: 7 U. While these statutory exceptions to the hearsay rule are left undisturbed, Rule , the willingness of Congress to recognize a substantial measure of admissibility for evaluative reports is a helpful guide.

Factors which may be of assistance in passing upon the admissibility of evaluative reports include; 1 the timeliness of the investigation, McCormack, Can the Courts Make Wider Use of Reports of Official Investigations? Others no doubt could be added. The formulation of an approach which would give appropriate weight to all possible factors in every situation is an obvious impossibility. Hence the rule, as in Exception [paragraph] 6 , assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present.