The Hearsay Rule and What Is Not Hearsay
Most objections called hearsay fail at the definition rather than at an exception. A statement is only hearsay if the party offering it needs the jury to believe what the statement asserts, and often the party needs nothing of the kind.
The rule in short
Federal Rule of Evidence 801 defines hearsay as a statement the declarant did not make while testifying at the current trial or hearing, offered to prove the truth of the matter asserted. Rule 802 makes hearsay inadmissible unless a federal statute, the rules, or a Supreme Court rule provides otherwise. Rule 801(d) removes two categories from the definition altogether: certain prior statements by a testifying witness, and statements offered against an opposing party.
Hearsay has a technical definition and it is shorter than its reputation suggests. Under Federal Rule of Evidence 801, hearsay is a statement that the declarant did not make while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted in the statement. A declarant is simply the person who made the statement. Both halves of the definition must be satisfied.
Statement, out of court, offered for its truth
A statement is a person's oral assertion, written assertion, or nonverbal conduct intended as an assertion. Pointing at a photograph in answer to a question is a statement. A dog's alert is not, because a dog is not a person. Machine-generated output such as a timestamp or a meter reading is generally treated as outside the definition for the same reason, though the printout still has to be authenticated.
The out-of-court element covers everything said anywhere other than on the witness stand in this proceeding, including sworn testimony from an earlier case. The third element does the most work. The statement must be offered to prove that what it asserts is true. If the case does not depend on the statement being accurate, the rule does not apply at all.
Statements offered for something other than truth
Several recurring uses fall outside the definition. A statement may be offered to show its effect on the person who heard it — that a driver was warned, that a company was on notice of a defect, that a listener had reason to be afraid. Whether the statement was accurate is beside the point; what matters is that it was made and heard.
A statement may also be a verbal act, meaning the words themselves carry legal consequence. Words of offer and acceptance, a defamatory remark in a defamation suit, and the words accompanying a transfer of money are all in this category. Statements offered to show the declarant's knowledge, or to show that a speaker was capable of speech at a given moment, are likewise not offered for their truth.
Categories the rule defines out
Rule 801(d) removes two groups from the definition rather than creating exceptions to it. The first covers certain prior statements of a witness who testifies and is subject to cross-examination about the statement. A prior inconsistent statement qualifies only if it was given under penalty of perjury at a trial, hearing, other proceeding or deposition. A prior consistent statement qualifies when offered to rebut a charge of recent fabrication or improper motive, or to rehabilitate credibility on another ground. A prior identification of a person qualifies without those conditions.
The second group is statements offered against an opposing party. It includes the party's own statement, one the party adopted or believed true, one by a person the party authorized to speak, one by an agent or employee on a matter within the scope of that relationship and made while it existed, and one by a coconspirator during and in furtherance of the conspiracy. The label admission of a party opponent is still widely used for this group.
Rule 805 provides that hearsay within hearsay is admissible only if each part of the combined statements conforms with an exception or exclusion. A police report describing what a bystander said contains two layers: the officer's record and the bystander's account. A business record exception may carry the first and do nothing for the second. Offering a document without separating its layers is the most common way a well-founded record still fails at the point of admission.
| Category | Rule | Why it is or is not hearsay | Condition attached |
|---|---|---|---|
| Assertion offered for its truth | 801(a)-(c) | Hearsay by definition | Needs an exception under 803, 804 or 807 |
| Statement offered for effect on listener | Outside 801(c) | Truth of the statement is irrelevant | A limiting instruction is usually available |
| Words with legal effect | Outside 801(c) | The words are the operative act | The legal consequence must be at issue |
| Prior statement of a testifying witness | 801(d)(1) | Defined out of hearsay | Witness testifies and is subject to cross |
| Statement of an opposing party | 801(d)(2) | Defined out of hearsay | Offered against that party only |
| Coconspirator statement | 801(d)(2)(E) | Defined out of hearsay | During and in furtherance of the conspiracy |
The prohibition and the routes past it
Rule 802 states the prohibition: hearsay is not admissible unless a federal statute, the Rules of Evidence, or another rule prescribed by the Supreme Court provides otherwise. The exceptions are grouped by whether the declarant's availability matters. Rule 803 lists the exceptions that apply whether or not the declarant can be called, and Rule 804 lists those available only once unavailability is established.
Rule 807 supplies a residual exception for a statement not covered by the listed exceptions that is supported by sufficient guarantees of trustworthiness and is more probative on the point than other evidence the proponent can reasonably obtain. Notice to the adverse party is required. Courts apply it sparingly, and a party that builds a case on the residual exception is usually in trouble already.
Confrontation in criminal cases
In a criminal prosecution the rules of evidence are not the only constraint. Under Crawford, the Confrontation Clause bars admission against a defendant of a testimonial statement by a person who does not appear at trial, unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. The analysis is independent: a statement can satisfy a hearsay exception and still be excluded.
What makes a statement testimonial has been worked out case by case, with formal statements to investigators at the core and statements made to address an ongoing emergency generally outside it. Forensic reports have generated their own line of decisions about which analyst must testify. Documents gathered abroad raise both problems at once, which is why the procedure for obtaining evidence through letters of request matters to the trial plan, along with the separate showing that a document is what it is claimed to be.
Points to carry away
- A statement is an oral or written assertion or nonverbal conduct intended as an assertion.
- Hearsay requires that the statement be offered to prove the truth of what it asserts.
- Statements offered to show effect on the listener, notice or legal consequence are not hearsay.
- Rule 801(d)(1) excludes certain prior inconsistent, consistent and identification statements.
- Rule 801(d)(2) excludes statements offered against an opposing party, including agent statements.
- In criminal cases the Confrontation Clause bars testimonial statements independently of the rules.
Questions readers ask
Is a document automatically hearsay because it was written outside court?
Not automatically. A writing is a statement, so it can be hearsay, but only if it is offered to prove what it asserts. A contract offered to show the terms the parties agreed to is a verbal act with legal effect rather than an assertion offered for its truth. A letter offered to show the recipient was warned is offered for its effect. A memorandum offered to prove that the event it describes happened is hearsay and needs an exception or an exclusion to come in.
Can a party's own statement be offered by that party?
Generally no. Rule 801(d)(2) removes from the definition a statement offered against an opposing party, which means the provision runs one way. A party cannot use it to introduce its own helpful out-of-court statements, because the rationale is that a party can hardly complain about being confronted with what it said. A party wanting its own prior statement in must find another route, such as a present sense impression, an excited utterance, or a prior consistent statement admitted under the conditions in Rule 801(d)(1)(B).
What is a statement by a coconspirator and when does it come in?
Rule 801(d)(2)(E) treats a statement as not hearsay when it was made by the party's coconspirator during and in furtherance of the conspiracy. The judge decides the preliminary questions — whether a conspiracy existed, whether the declarant and the party were members, and whether the statement furthered it. The statement itself may be considered on those questions but cannot alone establish them. Idle conversation between members, or a narrative told after the objective has failed, generally does not qualify as furthering the venture.
Sources
- Cornell Legal Information Institute — Federal Rule of Evidence 801, Definitions and ExclusionsStatement, declarant, the truth requirement, and the categories that are not hearsay.
- Cornell Legal Information Institute — Federal Rule of Evidence 802, The Rule Against HearsayHearsay is inadmissible unless another authority provides otherwise.
- Cornell Legal Information Institute — Federal Rule of Evidence 803, Exceptions Regardless of AvailabilityThe exceptions that apply whether or not the declarant can be called.
- Cornell Legal Information Institute — Federal Rule of Evidence 805, Hearsay Within HearsayEach layer of an embedded statement needs its own exception or exclusion.
- Cornell Legal Information Institute — Federal Rule of Evidence 807, The Residual ExceptionThe narrow route for statements with equivalent guarantees of trustworthiness.
- Cornell Legal Information Institute — Federal Rule of Evidence 104, Preliminary QuestionsHow the court resolves the foundational questions that hearsay rulings depend on.
Liberty Law Library is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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