This Brieflex Deep Dive explains hearsay on the bar exam in the order you use it on an Evidence essay: define it, test the statement against each element, check the exclusions, then look for an exception. It works from the text of Federal Rules of Evidence 801 to 804 and adds the Confrontation Clause check that applies in criminal cases. The takeaway: hearsay analysis is a sequence, so run every step in order.
The Rule: Hearsay
Rule: Under FRE 801(c), hearsay is 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.
Rule 802 then states the consequence. Hearsay is not admissible unless a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court provide otherwise.
Elements:
- A statement: a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion (FRE 801(a)).
- Made by a declarant, the person who made the statement (FRE 801(b)), out of court, meaning not while testifying at the current trial or hearing.
- Offered for its truth: to prove the matter the statement asserts.
Miss any one element and the statement is not hearsay. That is why the rule rewards slow reading of the facts.
The Hypo
W testifies at D’s robbery trial: “Right after the robbery, V ran up to me shaking and shouted, ‘D just took my wallet!’” The prosecution offers W’s testimony to prove that D took the wallet.
Result:
- Statement: yes. V’s shout is an oral assertion.
- Out of court: yes. V made it on the street, not while testifying at trial.
- Offered for its truth: yes. The prosecution wants the jury to believe D took the wallet.
It is hearsay. Now the analysis moves to exclusions and exceptions.
Now suppose the prosecution offers the same shout only to show that V was upset. The purpose changes. Element 3 is the one to argue, because hearsay turns on what the statement is offered to prove.
Exclusions: Statements That Are Not Hearsay
Rule 801(d) lists statements that are declared not hearsay. Label them as exclusions, not exceptions.
801(d)(1): A declarant-witness’s prior statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
- is inconsistent with the testimony and was given under penalty of perjury at a trial, hearing, other proceeding, or deposition;
- is consistent with the testimony and is offered to rebut a charge of recent fabrication or improper influence, or to rehabilitate credibility attacked on another ground; or
- identifies a person as someone the declarant perceived earlier.
801(d)(2): An opposing party’s statement. The statement is offered against an opposing party and was:
- made by the party in an individual or representative capacity;
- one the party manifested that it adopted or believed to be true;
- made by a person the party authorized to speak on the subject;
- made by the party’s agent or employee on a matter within the scope of that relationship while it existed; or
- made by the party’s coconspirator during and in furtherance of the conspiracy.
The statement itself must be considered, but it does not by itself establish the authority, the agency relationship, or the conspiracy.
Exam Tip: In the hypo, if D had told a friend “I took the wallet,” the prosecution would offer it against D under 801(d)(2)(A). Your answer should call it an opposing party’s statement, not an admission “exception.”
Exceptions That Apply Whether or Not the Declarant Is Available (FRE 803)
Rule 803 lists 23 exceptions that apply “regardless of whether the declarant is available as a witness.” Three fit fact patterns like the hypo:
- Present Sense Impression, 803(1): a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
- Excited Utterance, 803(2): a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
- Then-Existing Condition, 803(3): a statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition, but not a statement of memory or belief offered to prove the fact remembered, unless it relates to the validity or terms of the declarant’s will.
Applied to the hypo: V was shaking and shouting right after a robbery. That supports an excited utterance: a startling event, and a statement made while V was under the stress it caused. Argue present sense impression in the alternative, since V spoke immediately after perceiving the event.
Rule 803 also covers statements for medical diagnosis or treatment (803(4)), recorded recollection (803(5)), records of a regularly conducted activity (803(6)), and public records (803(8)).
Exceptions That Require Unavailability (FRE 804)
Rule 804 exceptions apply only if the declarant is unavailable. Under 804(a), a declarant is unavailable who:
- is exempted from testifying by a court ruling that a privilege applies;
- refuses to testify despite a court order;
- testifies to not remembering the subject matter;
- cannot be present or testify because of death or a then-existing infirmity, physical illness, or mental illness; or
- is absent, and the proponent could not procure the declarant’s attendance (or testimony, for some exceptions) by process or other reasonable means.
None of these count if the proponent procured or wrongfully caused the unavailability to keep the declarant from attending or testifying.
The 804(b) exceptions:
- Former testimony: given as a witness at a trial, hearing, or lawful deposition, and offered against a party who had an opportunity and similar motive to develop it by direct, cross-, or redirect examination. In a civil case, a predecessor in interest’s opportunity counts.
- Statement under the belief of imminent death: only in a homicide prosecution or a civil case, about the cause or circumstances of what the declarant believed was imminent death.
- Statement against interest: when made, so contrary to the declarant’s proprietary or pecuniary interest, or so likely to invalidate the declarant’s claim against someone else or expose the declarant to civil or criminal liability, that a reasonable person would have said it only if true. In a criminal case, a statement exposing the declarant to criminal liability also needs corroborating circumstances that clearly indicate its trustworthiness.
- Statement of personal or family history.
- Statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability, intending that result.
Memory hook: 803 = availability doesn’t matter. 804 = unavailability first.
The Confrontation Clause Check in Criminal Cases
Passing the hearsay rules is not the last step when the prosecution offers the statement. The Sixth Amendment gives the accused, “in all criminal prosecutions,” the right “to be confronted with the witnesses against him,” and as noted by Cornell LII’s Wex entry, that right applies to the states through the Fourteenth Amendment.
In Crawford v. Washington (2004), the Supreme Court held that where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy the Constitution is confrontation. The Court reasoned that the Framers would not have permitted testimonial statements of a witness who did not appear at trial unless the witness was unavailable and the defendant had a prior opportunity for cross-examination.
Exam Tip: In a criminal fact pattern, write two conclusions: one on the hearsay rules, and one on the Confrontation Clause for any testimonial statement offered against the defendant.
Pro Tips
- Always run the three elements before you name an exception.
- Always label 801(d) items as “not hearsay,” and 803 and 804 items as exceptions.
- Always establish unavailability under 804(a) before you argue any 804(b) exception.
- Always argue a second exception in the alternative when the facts support one.
- Always add the Confrontation Clause when the prosecution offers a testimonial statement against the accused.
For how this fits the wider subject, see our guide to studying Evidence Law for the bar exam. For turning the sequence into points on an essay, read what makes a good bar exam essay and our post on issue spotting.
FAQ
- What is the definition of hearsay under the Federal Rules of Evidence? A statement the declarant does not make while testifying at the current trial or hearing, offered to prove the truth of the matter asserted (FRE 801(c)).
- Is an opposing party’s statement hearsay? No. FRE 801(d)(2) defines a statement offered against an opposing party, in the five forms it lists, as not hearsay.
- What is the difference between Rule 803 and Rule 804 exceptions? Rule 803 exceptions apply regardless of whether the declarant is available. Rule 804 exceptions apply only when the declarant is unavailable under 804(a).
- Does a dying declaration apply in every case? No. Under FRE 804(b)(2), the exception applies only in a prosecution for homicide or in a civil case.
- Can hearsay that fits an exception still be excluded in a criminal case? Yes. Crawford v. Washington held that where testimonial statements are at issue, confrontation is the only sufficient indicium of reliability, so a testimonial statement offered against the accused also needs a Confrontation Clause analysis.