Hearsay

What is hearsay?

Under federal Rule 801, hearsay is a statement the declarant does not make while testifying at the current trial or hearing, offered to prove the truth of what it asserts. A statement is an oral assertion, written assertion, or nonverbal conduct intended as an assertion. The declarant made it. Rule 801(d) excludes statements that meet its conditions. This is the supplied federal framework, not a state-law survey. [2][1]

What counts as a "statement," and what is left out of the definition?

Rule 1101 identifies the federal courts and proceedings to which these evidence rules apply and the proceedings excepted from most of them. This page explains that federal framework, not a survey of other states' evidence procedures. [7]

Under the federal definition, a "statement" can be spoken, written, or nonverbal conduct, but only if the person meant it as an assertion. The "declarant" is simply the person who made the statement. [2]

Some statements that look like hearsay are defined as not hearsay. One group covers certain prior statements of a witness who testifies and can be cross-examined about them. Another covers an opposing party's own statement offered against that party, such as one the party made individually. [2]

How does hearsay come up in a criminal case?

In a federal criminal proceeding covered by the evidence rules, the hearsay question concerns a statement offered in evidence to prove the truth of what it asserts. Rule 802 bars hearsay unless a federal statute, these evidence rules or other rules prescribed by the Supreme Court provide otherwise. Rule 1101 identifies proceedings excepted from most evidence rules. [2][1][7]

Rule 803 lists exceptions that apply regardless of whether the declarant is available as a witness, each with its own conditions. Its excited-utterance exception covers a statement relating to a startling event or condition made while the declarant was under the stress of excitement it caused. This example does not establish that any particular statement qualifies. [3]

Rule 804's exceptions require unavailability as that rule defines it. Its former-testimony exception concerns testimony given at a trial, hearing or lawful deposition. In a criminal case, it must be offered against a party who had an opportunity and similar motive to develop it by direct, cross- or redirect examination. The separate civil-case predecessor-in-interest alternative is not a criminal-case shortcut. [6]

Rule 807 provides a residual exception even if a statement is not admissible under an exception in Rule 803 or Rule 804. It requires sufficient trustworthiness support after considering the totality of the circumstances and any corroborating evidence, and a statement more probative on the point than any other evidence the proponent can obtain through reasonable efforts. Reasonable notice of the intent to offer it, including its substance and the declarant's name, must give the adverse party a fair opportunity to meet it. Notice must be written before trial or hearing, or in any form during it if the court excuses the lack of earlier notice for good cause. [8]

This definition explains the supplied federal evidence rules. It does not analyze Confrontation Clause decisions, supply a constitutional admissibility test or determine whether a particular statement can be used in a case. [2][1]

Who decides whether hearsay is admitted?

Federal Rule 104(a) assigns preliminary questions about witness qualification, privilege, and admissibility of evidence to the court. In deciding those questions, the court is not bound by evidence rules other than those on privilege. [9]

Under Rule 104(c), any hearing on a preliminary question must be conducted so the jury cannot hear it if the hearing involves a confession's admissibility, a defendant in a criminal case is a witness and requests it, or justice requires it. Rule 104(e) preserves a party's right to introduce before the jury evidence relevant to the weight or credibility of other evidence. [9]

Does the hearsay rule apply at federal bail hearings, grand juries, or sentencing?

Rule 1101 says the federal evidence rules other than privilege do not apply to grand-jury proceedings, preliminary examinations in criminal cases, sentencing or consideration of release on bail or otherwise. This describes those federal-rule exceptions, not an individual admissibility decision or other states' procedures. [7]

What is "hearsay within hearsay"?

Rule 805 addresses hearsay within hearsay: it is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception. Meeting that rule does not itself establish that a particular item is admissible under every other rule. This definition does not decide a particular item's admissibility. [4]

Can the credibility of someone whose hearsay was admitted be challenged?

Yes, under the federal rules. When a hearsay statement is admitted, the declarant's credibility may be attacked, and then supported, with evidence that would be allowed if the declarant had testified as a witness. [5]

What makes a declarant "unavailable" under the federal rules?

Rule 804(a) lists specific unavailability criteria: a court's privilege ruling; refusal to testify about the subject matter despite a court order; testimony that the declarant does not remember the subject matter; inability to be present or testify because of death or then-existing infirmity, physical illness, or mental illness; or absence meeting Rule 804(a)(5). For absence, the proponent must have been unable, by process or other reasonable means, to procure attendance for Rule 804(b)(1) or Rule 804(b)(6), or attendance or testimony for Rule 804(b)(2), Rule 804(b)(3), or Rule 804(b)(4). Subdivision (a) does not apply if the proponent procured or wrongfully caused unavailability intending to prevent attendance or testimony. [6]