Hearsay Chart

Hearsay

Non-Hearsay

Hearsay Exceptions

Exemptions & Exclusions

Declarant Unavailable

DEFINITION FRE 801(c) “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. FRE 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.

FRE 801(d) Exemptions 1-Declarant Witness’ Prior Statement (Prior Consistent/ Inconsistent) 2-An opposing parties’ statement (Admissions)

Exclusions: Statements/ conduct that are either nonassertive or not offered for their truth are definitional exclusions as opposed to exemptions under FRE 801(d)

Unavailability Means: 1- exempted by privilege 2- refuses to testify despite court order 3- lack of memory 4- dead or physically or mentally ill 5- cannot be found *does not apply if the statement’s proponent caused the witness unavailability

FRE 804(b) 1-Prior Testimony 2-Statement Under the Belief of Imminent Death 3- Statement Against Interest 4-Statement of Personal or Family History 5-Other Exceptions (FRE 807) 6- Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability

FRE 803 -Declarant Availability Immaterial 1-Present Sense Impression 2- Excited Utterance 3- Then existing mental, emotional, or physical condition 4- Statement Made for Medical Diagnosis or Treatment 5- Recorded Recollection 6- Records of Regularly Conducted Activity 7- Absence of a Record of Regularly Conducted Activity 8- Public Records 9- Public Records of Vital Statistics 10- Absence of a Public Record 11- Records of Religious Organizations Concerning Personal or Family History 12- Certifications of Marriage, Baptism or Similar Ceremonies 13-Family Records 14- Records of Documents that Show an Interest in a Property 15- Statements in Documents that Show an Interest in a Property 16- Statements in Ancient Documents 17- Market Reports and Similar Commercial 18- Statements Learned in Certain Treatises, Periodicals, or Pamphlets 19- Reputation Concerning Personal or Family History 20- Reputation Concerning Boundaries or General History 21- Reputation Concerning Character 22-Judgement of a Previous Conviction 23- Judgments Involving Personal, Family, General history or Boundaries 24- Other Exceptions (FRE 807)

FRE 807 (formerly 803 24) Residual Exception may be allowable if it meets the 4 criterion and the other party is properly notified.