Hearsay Rule

The hearsay rule, codified in Federal Rules of Evidence 801-807, provides that an out-of-court statement offered to prove the truth of the matter asserted is generally inadmissible. The rule reflects concerns about the reliability of out-of-court statements: the declarant was not under oath, was not subject to cross-examination, and was not observed by the trier of fact for demeanor.

Under FRE 801(c), a statement is hearsay if it is (1) an oral or written assertion, or nonverbal conduct intended as an assertion, (2) made out of court, and (3) offered to prove the truth of the matter asserted. The critical third element means that if an out-of-court statement is offered for a purpose other than proving its truth — such as showing the statement's effect on the listener, showing that the statement was made, or showing the declarant's state of mind — it is not hearsay.

FRE 801(d) identifies certain categories of statements that are not hearsay by definition: prior inconsistent statements made under oath, prior consistent statements offered to rebut a charge of recent fabrication, prior identifications, and admissions by a party-opponent (including personal admissions, adoptive admissions, authorized admissions, agent/employee admissions, and co-conspirator statements).

Even when a statement is hearsay, it may still be admissible under one of the many exceptions. FRE 803 lists exceptions available regardless of the declarant's availability (present sense impression, excited utterance, then-existing mental/physical condition, business records, public records, and more). FRE 804 lists exceptions available only when the declarant is unavailable (former testimony, dying declaration, statement against interest, statement of personal or family history). FRE 807 provides a residual exception for statements with equivalent guarantees of trustworthiness.

On evidence exams, hearsay analysis is the most frequently tested area. Students should follow a systematic approach: (1) identify the statement; (2) determine if it is offered for the truth of the matter asserted; (3) check for non-hearsay categories under 801(d); (4) check for exceptions under 803, 804, and 807.