Hearsay Exceptions You Need to Know for Evidence

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted (FRE 801). It's generally inadmissible because the declarant wasn't under oath, subject to cross-examination, or observed by the jury. But the exceptions are where evidence law gets interesting — and heavily tested.

These look like hearsay but are defined as non-hearsay:

801(d)(1): Prior statements by a witness — prior inconsistent statements under oath, prior consistent statements to rebut fabrication charges, and prior identifications

801(d)(2): Opposing party's statements — admissions by a party-opponent, including statements by agents and co-conspirators

These apply whether the declarant is available to testify or not:

Present sense impression (803(1)): Statement describing an event made while or immediately after perceiving it
Excited utterance (803(2)): Statement relating to a startling event made while under the stress of excitement
Then-existing mental/emotional condition (803(3)): Statements of intent, plan, motive, feeling
Statements for medical diagnosis (803(4)): Statements made for medical treatment
Business records (803(6)): Records kept in the regular course of business
Public records (803(8)): Government agency records

These require that the declarant is unavailable (dead, ill, refuses to testify, privileges, absent):

Former testimony (804(b)(1)): Testimony from a prior proceeding
Dying declaration (804(b)(2)): Statement made while believing death is imminent, about the cause of death
Statement against interest (804(b)(3)): Statement so damaging to the declarant's interest that no reasonable person would make it unless true
Forfeiture by wrongdoing (804(b)(6)): The party caused the declarant's unavailability

Evidence exams love hearsay. For every out-of-court statement:

1. Is it offered for the truth? If not, it's not hearsay (might be offered for effect on listener, verbal act, etc.)
2. Is it an exemption under 801(d)?
3. Does an 803 exception apply?
4. If declarant is unavailable, does an 804 exception apply?
5. Even if admissible, consider the Confrontation Clause (Crawford v. Washington) for criminal cases