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How to Analyze Hearsay on an Evidence Essay (Pt. 3): Hearsay Exceptions (FRE 803-804)
HEARSAY (FRE 801(c)-(d))
An out-of-court statement that is offered to prove the truth of the matter asserted is hearsay UNLESS the statement satisfies a condition enumerated under Rule 801(d) of the Federal Rules of Evidence.
HEARSAY EXCEPTIONS: DECLARANT UNAVAILABILITY IS NOT REQUIRED (FRE 803)
(https://www.law.cornell.edu/rules/fre/rule_803)
The following are NOT excluded by the rule against hearsay (FRE 801), regardless of whether the declarant is available as a witness:
FRE 803(1): Present Sense Impression
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
FRE 803(2): Excited Utterance
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
FRE 803(3): Then-Existing Mental, Emotional, or Physical Condition
A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
FRE 803(4): Statement Made for Medical Diagnosis or Treatment
A statement that is: (1) made for — and is reasonably pertinent to — medical diagnosis or treatment; and (2) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
FRE 803(5): Recorded Recollection
A record that: (1) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (2) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (3) accurately reflects the witness’s knowledge.
FRE 803(6): Business Records
A record of an act, event, condition, opinion, or diagnosis if: (1) the record was made at or near the time by — or from information transmitted by — someone with knowledge; (2) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; and (3) making the record was a regular practice of that activity.
HEARSAY EXCEPTIONS: DECLARANT UNAVAILABILITY IS REQUIRED (FRE 804)
(https://www.law.cornell.edu/rules/fre/rule_804)
A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies; (2) refuses to testify about the subject matter despite a court order to do so; (3) testifies to not remembering the subject matter; (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or (5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure the declarant's attendance or testimony.
The following are not excluded by the rule against hearsay (FRE 801) if the declarant is unavailable as a witness:
FRE 804(b)(1): Former Testimony
Testimony that: (1) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (2) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
FRE 804(b)(2): Dying Declaration
In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
FRE 804(b)(3): Statement Against Interest
A statement that: (1) a reasonable person would not have made unless he believed it to be true; (2) was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and (3) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
FRE 804(b)(6): Forfeiture by Wrongdoing
A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.
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