Hearsay
Hearsay — an out-of-court statement offered to prove the truth of the matter asserted — is generally inadmissible unless it falls within a recognized exception or exemption.
Overview
Hearsay is one of the most important and most tested topics in evidence law. Under Federal Rule of Evidence 801(c), hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. The general rule (FRE 802) is that hearsay is not admissible unless an exception or exemption applies.
The hearsay analysis proceeds in three steps. First, is there an out-of-court statement? "Statement" includes oral assertions, written assertions, and assertive conduct. Second, is it offered for the truth of the matter asserted? If a statement is offered for another purpose — such as showing its effect on the listener, proving notice, or demonstrating the speaker's state of mind — it is not hearsay.
Third, does an exception or exemption apply? FRE 801(d) provides exemptions for prior statements by witnesses (prior inconsistent statements under oath, prior consistent statements, and prior identifications) and opposing party statements (admissions by a party, adoptive admissions, authorized statements, agent/employee statements, and co-conspirator statements).
FRE 803 lists exceptions available regardless of declarant's availability, including: present sense impression, excited utterance, then-existing mental/emotional/physical condition, statements for medical treatment, recorded recollection, business records, public records, and others. FRE 804 lists exceptions requiring the declarant's unavailability: former testimony, dying declarations, statements against interest, and statements of personal or family history.
Crawford v. Washington added a Confrontation Clause overlay: testimonial hearsay is inadmissible against a criminal defendant unless the declarant is unavailable and was previously subject to cross-examination, regardless of whether a hearsay exception applies.
Key Takeaway
Hearsay is an out-of-court statement offered for its truth. It's inadmissible unless a specific exception or exemption applies. In criminal cases, the Confrontation Clause provides additional protection.
Exam Tip
Use the three-step framework: (1) Is it a statement? (2) Is it offered for truth? If not, it's not hearsay — stop. (3) If hearsay, does an exception or exemption apply? In criminal cases, always check Crawford for testimonial statements.
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Frequently Asked Questions
What is the hearsay rule?
Hearsay — an out-of-court statement offered to prove the truth of the matter asserted — is generally inadmissible (FRE 802). The rule exists because the declarant was not under oath, not subject to cross-examination, and the jury could not observe their demeanor.
What is the difference between a hearsay exception and an exemption?
Exemptions (FRE 801(d)) are categories of statements that are defined as 'not hearsay' — like opposing party statements and certain prior statements by witnesses. Exceptions (FRE 803-804) are statements that are hearsay but are admissible because of reliability indicators. The practical effect is the same: the evidence comes in.
What did Crawford v. Washington change about hearsay?
Crawford held that the Confrontation Clause bars the admission of testimonial hearsay against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. This applies regardless of whether a hearsay exception exists.
What are the most commonly tested hearsay exceptions?
Present sense impression (FRE 803(1)), excited utterance (803(2)), then-existing state of mind (803(3)), statements for medical treatment (803(4)), business records (803(6)), public records (803(8)), and dying declarations (804(b)(2)).
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