Hearsay
Rule
FRE 801 — Definitions
- (a) Statement: an oral or written assertion, or nonverbal conduct intended as an assertion
- (b) Declarant: the person who made the statement
- (c) Hearsay: a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement
FRE 802 — The Rule Against Hearsay Hearsay is not admissible unless an exception applies under the FRE or other rules prescribed by the Supreme Court.
Elements
Three-step analysis
- Is it a statement? — Oral, written, or intended nonverbal conduct. Unintended conduct (e.g., fleeing the scene) is not a statement.
- Is it out of court? — Made other than during the current proceeding.
- Is it offered for the truth of the matter asserted? — If offered for a non-truth purpose, it is not hearsay.
Non-hearsay (non-truth) purposes (examples)
- Effect on listener/reader: offered to show what the listener knew or how they reacted
- Legally operative words (verbal acts): the words themselves have legal effect (e.g., offer, acceptance, defamatory statement)
- Impeachment: offered to show the witness’s prior inconsistent statement, not for truth
- Circumstantial evidence of state of mind: “He said there’s a bomb here” — not offered to show bomb exists, but that speaker believed it
- Verbal objects / markers: a label or tag offered to show what the item is
Exemptions from Hearsay (FRE 801(d)) — Not Hearsay by Definition
FRE 801(d)(1) — Prior Statements by Witnesses (declarant testifying and subject to cross)
- (A) Prior inconsistent statement: made under penalty of perjury at a trial, hearing, other proceeding, or deposition (not just any prior inconsistent statement)
- (B) Prior consistent statement: offered to rebut a charge of recent fabrication or improper motive; must have been made before the alleged motive to fabricate arose (United States v. Tome)
- (C) Prior statement of identification: identifying a person after perceiving them
FRE 801(d)(2) — Admissions by Party-Opponent (offered against opposing party)
- (A) Individual admission: the party’s own statement
- (B) Adoptive admission: party manifested adoption of or belief in the statement
- (C) Authorized admission: made by a person authorized to speak on the subject
- (D) Agent/employee admission: made by party’s agent/employee on a matter within scope of that relationship while it existed
- (E) Co-conspirator statement: made by a co-conspirator during and in furtherance of the conspiracy
Hearsay Exceptions — FRE 803 (Availability of Declarant Immaterial)
FRE 803(1) — Present Sense Impression
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. See Hearsay.
FRE 803(2) — Excited Utterance
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement caused by the event. See Hearsay.
FRE 803(3) — Then-Existing Mental, Emotional, or Physical Condition
Statement of the declarant’s then-existing state of mind (intent, plan, motive, design) or emotional, sensory, or physical condition. Not a statement of memory or belief to prove the fact remembered (except in will cases).
FRE 803(4) — Statements for Medical Diagnosis or Treatment
Statement made for and reasonably pertinent to medical diagnosis or treatment. Includes statements describing past symptoms, pain, or general cause (but not fault or identity of tortfeasor).
FRE 803(5) — Recorded Recollection
A memorandum or record about a matter the witness once knew but now cannot recall well enough to testify fully about, if the record was made or adopted by the witness when the matter was fresh and accurately reflects the witness’s knowledge. The record may be read into evidence but not received as an exhibit unless offered by an adverse party.
FRE 803(6) — Records of a Regularly Conducted Activity (Business Records)
A record of an act, event, condition, opinion, or diagnosis if: made at or near the time; by someone with knowledge; kept in the course of regularly conducted activity; it was the regular practice of that activity to make the record; shown by the custodian or other qualified witness; and no indication of untrustworthiness. See Hearsay.
FRE 803(7) — Absence of a Record of Regularly Conducted Activity
Admissible to prove nonoccurrence of an act or event if such a record would have been made.
FRE 803(8) — Public Records
A record or statement of a public office setting out: (A) office activities; (B) factual findings from a legally authorized investigation; or (C) in a civil case or against the government in a criminal case, factual findings from legally authorized investigation — unless untrustworthy. Beech Aircraft Corp. v. Rainey: applies to opinions and conclusions in investigative reports.
FRE 803(16) — Statements in Ancient Documents
Statement in a document at least 20 years old that is authentic. (Amended 2017 to limit to documents created before January 1, 1998.)
FRE 803(18) — Statements in Learned Treatises
Used on cross-examination or if an expert relied on it; the relevant portion is read into evidence, not received as exhibit.
Hearsay Exceptions — FRE 804 (Declarant Must Be Unavailable)
FRE 804(a) — Unavailability
Declarant is unavailable if: exempted by privilege; refuses to testify despite a court order; lacks memory; is unable to testify due to death or infirmity; or is absent from trial and proponent cannot procure attendance by process or other reasonable means.
FRE 804(b)(1) — Former Testimony
Testimony at a prior trial, hearing, or deposition, if the party against whom offered had opportunity and similar motive to develop by direct, cross, or redirect.
FRE 804(b)(2) — Dying Declaration (Statement Under Belief of Imminent Death)
In a prosecution for homicide or a civil case: a statement that the declarant believed was made while believing death was imminent, concerning the cause or circumstances of the believed-imminent death. See Hearsay.
FRE 804(b)(3) — Statement Against Interest
A statement that, when made, was against the declarant’s proprietary, pecuniary, or penal interest; a reasonable person would not have made it unless believing it to be true. In criminal cases, must be supported by corroborating circumstances.
FRE 804(b)(6) — Forfeiture by Wrongdoing
A statement is not excluded if the party against whom it is offered wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability — and did so intending that result.
Residual Exception — FRE 807
A hearsay statement not covered by FRE 803 or 804 is not excluded if: (1) the statement has equivalent guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point than other evidence the proponent can reasonably obtain; and (4) admitting it will best serve the purposes of the FRE and justice. See Hearsay.
Multiple Hearsay — FRE 805
Each part of a multiple hearsay chain must independently fall within an exception.
Attacking Hearsay Declarant’s Credibility — FRE 806
The credibility of a hearsay declarant may be attacked as if the declarant were a testifying witness.
Policy
- Hearsay is excluded because of the four testimonial dangers: the declarant may have (1) misperceived, (2) misremembered, (3) communicated ambiguously, or (4) been insincere
- Out-of-court statements lack the safeguards of oath, presence (opportunity to observe demeanor), and cross-examination
- Exceptions exist where circumstances provide circumstantial guarantees of trustworthiness (stress, routine, self-interest against, etc.) or where necessity justifies the risk
- Admissions are exempted entirely because the adversarial system justifies holding a party to their own words
Key Cases
- Crawford v. Washington — Confrontation Clause bars testimonial hearsay even if it falls within a FRE exception; must separately analyze Confrontation
- Ohio v. Clark — primary purpose test for “testimonial”; statements to teachers by child were not testimonial
- United States v. Tome — FRE 801(d)(1)(B) prior consistent statements must predate the alleged motive to fabricate
- Beech Aircraft Corp. v. Rainey — FRE 803(8) public records exception extends to opinions and conclusions in government investigative reports