The Hearsay Rule and Its Exceptions

What hearsay is

“Hearsay” means 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.

Fed. R. Evid. 801(c)

Under Rule 802, “Hearsay is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court.”

Statements that are not hearsay

Rule 801(d)(2) treats an opposing party’s own statement as not hearsay when it is offered against that party. That includes statements the party made, adopted or authorized, statements by its agent or employee within the scope of that relationship, and statements by a coconspirator during and in furtherance of the conspiracy.

Common exceptions

• Rule 803 lists exceptions that apply “regardless of whether the declarant is available as a witness,” such as present sense impressions, excited utterances, medical-diagnosis statements and records of a regularly conducted activity (business records, Rule 803(6)).
• Rule 804(b) lists exceptions that apply only “if the declarant is unavailable,” such as former testimony and dying declarations.
• Rule 807, the residual exception, admits a statement “supported by sufficient guarantees of trustworthiness” that is more probative than any other evidence reasonably available.

The Confrontation Clause

Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.

Crawford v. Washington, 541 U.S. 36, 68–69 (2004)

Crawford applies in criminal cases. As a result, testimonial statements of an absent witness are admissible against the accused only if the witness is unavailable and the defendant had a prior chance to cross-examine.

Researching hearsay rule in your state

To research hearsay rule for a real matter, start with the primary sources. For example, read the statute, the rule and the documents in your own file. Then look for recent appellate decisions from your state, because they control how local courts read the law. After that, compare what you found with the federal rules that may also apply. Our state procedures guide and the Research Center can help you find and check each source.

Sources and further reading

Official sources used on this page:

• law.cornell.edu
• law.cornell.edu
• law.cornell.edu
• law.cornell.edu
• static.case.law

Related reading on Lawtopolis:

• Relevance and the Federal Rules of Evidence: Rules 401, 402 and 403
• Witnesses and Expert Testimony: Personal Knowledge, Rule 702 and Daubert
• Authentication, Self-Authenticating Records and the Best Evidence Rule