See also: CHURCH RECORDS
JUDGMENTS.

§ 1.  Hearsay Statements

A hearsay statement regarding the declarant’s birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other fact of personal or family history is admissible if the declarant is unavailable to testify.{footnote}F.R.E. 804(b)(4)(A); United States v. Hernandez, 105 F.3d 1330 (9th Cir. 1997).
Cal Evid. Code § 1310; La. Code Evid. Art. 804(B)(4); N.J. Evid. Rules 63 (23), (24), (25), (26), (27); Tex. R. Crim. Evid. 804(b)(3)(A); Jones v. State, 950 S.W.2d 386 (Tex. Crim. App. 1997) (family friend could tesitify as to age of deceased child victim, citing Tex. R. Crim. Evid. 804(b)(3)(A)).
But see United States v. Carvalho, 742 F.2d 146 (4th Cir. 1984) (statement respecting motive for marriage inadmissible); United States v. Medina-Gasca, 739 F.2d 1451 (9th Cir. 1984) (errror to permit prosecution to introduce, through the testimony of immigration officers, defendant’s statements regarding his place of birth, origin, and ancestry, since this testimony went to a critical element of the crimes charged)

But see State v. Hester, 343 N.C. 266 (1996) (this exception “merely allows testimony about the existence of a marriage or other personal relationship. It has no bearing on events, activities, or emotional states occurring within those relationships.”){/footnote}  See also UNAVAILABILITY.  The hearsay statement need not be based on personal knowledge.  It may be based on statements by other family members (see below) or on reputation within the family (also see below).  See also HEARSAY–Double or Multiple Hearsay.  This exception “rests on the assumption that the type of declarant specified by the rule will not make a statement about the type of fact covered by the rule unless it is trustworthy."{footnote}4 Weinstein’s Evidence § 804(b)(4)[01] (1981).
See also United States v. Carvalho, 742 F.2d 146 (4th Cir. 1984) (admission of statement respecting motive for marriage not supported by this rationale).{/footnote}

Under the federal rules and in many states, hearsay statements by a family member or someone intimately associated with the family are admissible to prove a family relationship of someone else.{footnote}FRE 804(b)(4)(B); Brown v. Bowen, 668 F. Supp. 146 (E.D.N.Y. 1987).
Cal. Evid. Code § 1311; State v. Buhrle, 744 P.2d 747, 749 (Colo. 1987) (husband’s statement about the age or birth date of wife admissible, applying Colo. R. Evid. 804(b)(4); People v. Raffaelli, 701 P.2d 881, 884 (Colo. App. 1985) (Colo. R. Evid. 804(b)(4) excepts statements concerning "matters of pedigree such as date of birth" from the hearsay rule) Hill v. White, 589 A.2d 918 (D.C. App. 1991) (statement as to what witness had been told by her aunt about the witness’ name at birth  admissible); Daniels v. Retirement Board, 435 N.E.2d 1276 (Ill. App. Ct. 1982) (statement of deceased husband as to his marital status); Jarchow v. Grosse, 100 N.E. 290 (Ill. 1912); Moore v. Goode, 375 S.E.2d 549 (W.Va. 1988) (applying W. Va. R. Evid. 804(b)(4)).
See also Rassano v. Immigration & Naturalization Serv., 377 F.2d 971, 973 (7th Cir. 1966) ("the family history exception is based in part upon the inherent trustworthiness of declarations by a family member regarding matters of family history").
But see United States v. Carvalho, 742 F.2d 146 (4th Cir. 1984) (affidavit of defendants’ former spouses improperly used to show motive for marriage, a purpose beyond the scope of FRE 804(b)(4)).{/footnote}  The declarant must be unavailable to testify.{footnote}Dempsey v. Burns, 118 N.E. 193 (Ill. 1917) (statement of living relative held inadmissible).{/footnote}  Declarant whose statements would be admissible might include intimate friends of the family, in-laws, and others.{footnote}See Annotation, 15 A.L.R.2d 1412. {/footnote}  Some states restrict declarant to family members and spouses,{footnote}Aaholm v. People, 211 N.Y. 406 (1914).{/footnote} although illegitimate children are considered family members. There must be independent evidence aside from the hearsay statement to establish the declarant’s relationship.{footnote}Hankins v. United States, 67 F.2d 317 (5th Cir. 1933).
Aaholm v. People, 211 N.Y. 406 (1914). {/footnote}  The hearsay statement need not be based on personal knowledge.  It may be based on statements by other family members, which statements would themselves be admissible under this exception,{footnote}Eisenland v. Clan, 126 N.Y. 552 (1891) ) {/footnote} or on reputation within the family (see below).  See also HEARSAY — Double or Multiple Hearsay.  In most states, but not under the federal rules, the hearsay statement must have been made before there was any controversy over the relationship in question,{footnote}Daniels v. Retirement Board, 435 N.E.2d 1276 (Ill. App. Ct. 1982) (statement of deceased husband as to his marital status). {/footnote} and the declarant must not have had a motive to fabricate.  If the declarant is unavailable, the fact that there are other living relatives available to testify on the subject is irrelvant.{footnote}Jarchow v. Grosse, 100 N.E. 290 (Ill. 1912).{/footnote}

§ 2.  Family Records

An exception to hearsay rule exists for family records offered to prove a family event or relationship.{footnote}FRE 803(13).
Cal. Evid. Code § 1312; N.J.Evid. Rule 63(23)
5 Wigmore on Evidence § 1495-1496; McCormick on Evidence §322.{/footnote}  The declarant must be unavailable to testify.{footnote}FRE 803(13).
People v. Mayne, 118 Cal. 516 (1897).{/footnote}  Admissible records include pedigree records, notations on photographs,{footnote}In re Estate of Egbert, 306 N.W.2d 525 (Mich. App. 1981). {/footnote} gravestone inscriptions, and the like.  In most states the offering party need not prove who created the record or made the notation.{footnote}FRE 803(13).
Annot., 29 A.L.R. 372.  {/footnote}  See also BAPTISMAL CERTIFICATES; BIRTH CERTIFICATES; BUSINESS RECORDS; MARRIAGE CERTIFICATES.

§ 3.  Reputation Evidence

A family event or relationship may be proven by evidence of reputation (i.e., generally held belief) within the family,{footnote}FRE 803(19); Govt. of Virgin Islands v. Joseph, 765 F.2d 394 (3d Cir. 1985) (witness’ testimony about her age admissible since it may be considered form of reputation evidence); Cooper v. Harris, 499 F. Supp. 266 (N.D. Ill. 1980) (reversing denial of benefits, holding admissible statements by the father’s mother and sister that he had orally acknowledged paternity); McBride v. Heckler, 619 F. Supp. 1554 (D. N.J. 1985) (in dictum, stating that family reputation evidence as to legitimacy of child admissible); Lazovick v. Sun Life Ins. Co. of America, 586 F. Supp. 918 (E.D. Pa. 1984) (father’s statement that son committed suicide admissible).
Cal. Evid. Code § 1313; Ia. R. Evid. 803(19); State v. Mitchell, 568 N.W.2d 493 (Ia. 1997) (adoptive mother’s testimony about child’s birthday admissible under Ia. R. Evid. 803(19)); La. Code Evid. Art. 803(19); State v. Brunette, 501 A.2d 419 (Me. 1985) (exception permits victim’s mother to testify as to reputation among members of his adoptive family concerning his date of birth); Miss. R. Evid. 803(19); Tex. R. Crim. Evid. 803(19).
See also Jones v. State, 950 S.W.2d 386 (Tex. Crim. App. 1997) (family friend could tesitify as to age of deceased child victim, citing Tex. R. Crim. Evid. 803(19)).
But see In re Mask, 703 So. 2d 852 (Miss. 1997) (evidence of decedent’s conservatorship inadmissible under this exception).{/footnote} and by evidence of reputation in the community.{footnote}FRE 803(19); United State v. Cargo, 1991 U.S. App. LEXIS 13706 (6th Cir. 1991).
Cal. Evid. Code § 1314; Lewis v. Petty, 613 S.W.2d 585, 586 (Ark. 1981) (general reputation in the community on the issue of paternity admissible, citing Ark. R. Evid. 803(19)).
5 Wigmore, Evidence § 1605 (Chadbourn Rev. 1974) (neighborhood reputation is admissible evidence of legitimacy).{/footnote} Most states restrict the use of community reputation evidence, however.{footnote}Wigmore § 1602 (only as to marriage); Cal. Evid. Code § 1314 (only as to birth, divorce or death).{/footnote}  The witness must be shown to be a member of the relevant family or community or otherwise had personal knowledge of the reputation.{footnote}United States v. Ocampo, 650 F.2d 421 (2d Cir. 1981).
State v. Mitchell, 568 N.W.2d 493 (Ia. 1997) (adoptive mother’s testimony about child’s birthday admissible under Ia. R. Evid. 803(19)); 31A C.J.S. Evidence § 301, at 563 (1996).
See also State v. Stringer, 567 So. 2d 758 (La. App. 1990) (defendant’s unsubstantiated claims as to his own reputation within family of little probative value).{/footnote}

Bibliography

4 Weinstein’s Evidence, para. 804(b)(4)[01] at 804-166.
5 Wigmore, Evidence § 1502 (Chadbourn rev. 1974).