Federal Rules of Evidence/Hearsay

Article VIII of the Federal Rules of Evidence deals with hearsay—the rule that a statement made out of court may not be admitted for its truth. Hearsay is a complicated rule fraught with exceptions, and hearsay issues are a common point of argument in the courtroom.

Rule 801. Definitions

The following definitions apply under this article:

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

Rule 801(c). Hearsay

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Rule 801(c) defines hearsay, and also opens up the first "hole" in the rule: to be hearsay, a statement must be offered to prove the truth of the matter asserted. An out of court statement can be admitted for any purpose other than showing that it is true, so long as that purpose is relevant and not barred by another rule of evidence.

This means that commands, questions, and other statements that do not assert anything as true can never be hearsay. Even a matter-of-fact statement can be admitted for purposes other than its truth. Some examples:

• Legal fact. An old man says "I am the Lord Jesus Christ!" If offered to show that the man is senile or otherwise mentally incompetent, the statement is not hearsay; it is being offered to prove a separate, relevant fact. The statement is hearsay if offered to show that the man is actually the Lord Jesus Christ. Statements of permission and consent are not hearsay to show permission or consent.
• Effect on the listener. A caller to 911 says "Someone's breaking into a house on Elm Street!" The statement is hearsay if offered to show that there was a break-in on Elm Street. It is not hearsay if offered to show why the police rushed to Elm Street.

Rule 801(d). Statements which are not hearsay

Rule 801(d) makes several types of out-of-court statements admissible for their truth. Rule 801(d)(1) focuses on the statements of witnesses; Rule 801(d)(2) focuses on the statements of parties, which are known as admissions.

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or

(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

Prior inconsistent statements

Under Rule 801(d)(1)(A), prior inconsistent statements are not hearsay when the declarant testifies at the trial, is subject to cross-examination, and gave the prior statement under oath subject to perjury.

Prior inconsistent statements under this rule are a subset of prior inconsistent statements under Rule 613. Rule 613 allows all of a witness's prior inconsistent statements to be admitted for the sole purpose of impeachment, or discrediting their testimony. But 613 statements are limited: they can only be used to impeach, and their existence cannot be proven with extrinsic evidence unless the declarant is given an opportunity to explain the discrepancy.

Once a statement qualifies under Rule 801(d)(1)(A), on the other hand, it can be used for any purpose for which it is relevant. The statement's existence can be proven with extrinsic evidence if the declarant denies having made the statement. The statement can also be admitted as substantive evidence of its truth. Where possible, lawyers usually attempt to admit prior inconsistent statements under 801(d)(1)(A), simply because of the greater leeway they have to use the statement.

Prior consistent statements

Under Rule 801(d)(1)(B), prior consistent statements are also not hearsay if the declarant testifies at the trial, is subject to cross-examination, and the statement is introduced to rebut a charge that the declarant fabricated their testimony or has an improper influence or motive.

Statements of identification

Rule 801(d)(1)(c) It's a statement that is not hearsay. It allows witness' previous identification of a defendant to be used as substantive evidence against defendant during trial.

Party admissions

Rule 801(d)(2) stands for the proposition that a party "owns their words." Out-of-court statements by a party to a case are almost always admissible against that party, unless the statements are irrelevant or violate another rule of evidence.

Rule 802. Hearsay Rule

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

Constitutional hearsay: Roberts and Crawford

Before continuing further, it is important to point out a further qualification to the hearsay rule. The Sixth Amendment to the Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him." This confrontation clause has been interpreted as a further restriction on the admissibility of statements by out-of-court declarants in criminal cases.

Ohio v. Roberts, 448 U.S. 56 (1980), established that a hearsay exception must meet one of two Constitutional standards: it must have been "firmly rooted" at the time the Sixth Amendment was written, or it must have "particularized guarantees of trustworthiness."

Crawford v. Washington, 541 U.S. 36 (2004), established a rule that testimonial statements made out of court are inadmissible against a criminal defendant unless the defendant has an opportunity to cross-examine the declarant. Although the Supreme Court in Crawford did not give a clear definition of a testimonial statement, it can be understood as any statement which the declarant would understand would eventually be used in a courtroom. Examples of such statements probably include statements to police and official reports during a criminal investigation. Unless the defendant can (or could) cross-examine the declarant, the statement is inadmissible, even if it meets a hearsay exception under the Federal Rules.

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

Rule 801 establishes which statements are considered hearsay and which statements are not. Rules 803 and 804 deal with exceptions to the hearsay rule—statements which are hearsay, but are nevertheless admissible. The 803 exceptions are preferred to the 804 exceptions, as they generally carry greater credibility.

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

A present sense impression can be thought of as a "play by play." The witness makes the statement as the event is unfolding; the doctrine assumes that the witness does not have the time or the motivation to make up a story in such a situation. Calls to 911 are a good example of a present sense impression.

(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 or condition.

An excited utterance may be made immediately after the startling event, or quite some time afterward. The key factor is that the declarant must still be under the stress of excitement. Cries for help to police are a good example of an excited utterance, although depending on their content, they may not be admissible against a criminal defendant under the Crawford rule.

(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

A statement of a then-existing condition must be "self-directed": either describing what the declarant is feeling or what the declarant plans to do. The statement is only admissible to prove the declarant's condition: if others are included in the statement, the statement will not be admissible to prove anything related to the others.

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

803(4) statements do not have to be made to medical professionals; the declarant may make the statement to any caretaker figure. A child's statement to a parent, or an elderly person's statement to the younger relative taking care of them, could both be 803(4) statements. They also do not need to be made to a treating physician; a statement to a doctor hired in preparation for litigation can still be admissible under 803(4). Evaluating an 803(4) statement requires both a subjective determination that the declarant was contemplating diagnosis or treatment, and an objective determination that the statement was pertinent to diagnosis or treatment.

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Rule 803(5) is a close relative of Rule 612, discussed in the Witnesses chapter. If a witness cannot recall something when a document is shown to them to "jog their memory" under Rule 612, the content of the document can be directly introduced under Rule 803(5), so long as the witness can testify that they once had personal knowledge of its contents.

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

(19) Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

(21) Reputation as to character. Reputation of a person's character among associates or in the community.

(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

Rule 804. Hearsay Exceptions; Declarant Unavailable

(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant--

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the declarant's statement; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

(5) [Transferred to Rule 807]

(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Rule 805. Hearsay Within Hearsay

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

Rule 805 is also known as the "food chain" or "telephone" rule. It is invoked when the declarant makes a statement to a third party, who then retells the statement to the reporter. There can be any number of intermediaries in the chain, so long as each statement between declarant and reporter corresponds to a hearsay exception.

For example, a patient complains to their doctor (803(4)), and the doctor writes down the complaint in a medical record (803(6)), which frightens a nurse and causes him to run to tell an orderly (803(2)), who writes another medical record (803(6)), which is introduced as evidence. Since each statement in the chain falls under a hearsay exception, the statement is admissible.

If any one of the above links constituted inadmissible hearsay, the statement would be inadmissible. Each witness in the chain must also be competent, and each piece of physical evidence has to be authenticated.

Rule 806. Attacking and Supporting Credibility of Declarant

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

Rule 807. Residual Exception

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.