Also known as: exceptions to the hearsay rule · hearsay exception · hearsay exceptions · Rule 803 · Rule 804
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A rule permitting admission of an out-of-court statement that would otherwise be excluded by the prohibition on hearsay. The rule applies when the declarant is unavailable and the statement meets criteria ensuring reliability, such as prior cross-examination opportunity or self-inculpatory character.
A rule permitting admission of an out-of-court statement that would otherwise be excluded by the prohibition on hearsay. The rule applies when the declarant is unavailable and the statement meets criteria ensuring reliability, such as prior cross-examination opportunity or self-inculpatory character.
Select any source to read its text and confirm it supports the definition.
A rule permitting admission of an out-of-court statement that would otherwise be excluded by the prohibition on hearsay when the statement satisfies the residual exception's trustworthiness and probative-value requirements.
Select any source to read its text and confirm it supports the definition.
A rule permitting admission of an out-of-court statement that would otherwise be excluded by the prohibition on hearsay when the statement satisfies the residual exception's trustworthiness and probative-value requirements.
Each sense below has its own examples, sources, and questions.
Eugene Ellsworth was charged with assault after a bar fight. The victim gave a detailed statement to police but later died of unrelated causes before trial. The prosecution offered the victim's prior testimony from a preliminary hearing at which Ellsworth's counsel had cross-examined the victim. The court admitted the testimony because the declarant was unavailable and the defendant had a prior opportunity for cross-examination.
Edward Everett faced murder charges. Police had interrogated his accomplice, who described Everett's role in the crime. The accomplice later became unavailable. The prosecution sought to introduce the interrogation transcript. The court excluded it because the statement was testimonial, the defendant had no prior cross-examination opportunity, and traditional hearsay exceptions could not override the confrontation requirement.
Emanuel Escobar was prosecuted for drug trafficking. A co-conspirator had made a statement admitting his own involvement and implicating Escobar, but the co-conspirator fled the jurisdiction. The defense offered the statement to show the co-conspirator acted alone. The court admitted it after finding the declarant unavailable despite reasonable efforts to secure attendance and that the self-inculpatory portion met the exception requirements.
Ella Emerson stood trial for bank robbery. Her alleged accomplice had told a friend that he alone planned and executed the robbery but mentioned Emerson only in passing as someone who drove him to the bank. The prosecution offered the entire narrative. The court admitted only the portions genuinely against the declarant's interest and excluded the reference to Emerson.
Emma Erickson was charged with sexual assault. A crime lab produced a DNA report matching a sample from the crime scene to Erickson. The analyst who performed the testing did not testify. The court permitted an expert to rely on the report because it was created for routine laboratory administration rather than for the primary purpose of proving a fact at trial, avoiding confrontation concerns.
The proponent must demonstrate that the declarant is absent and that reasonable efforts, including use of process, failed to procure the declarant's attendance or testimony. Mere incarceration outside the state is insufficient without a good-faith effort to secure presence.
Supporting sources
Testimonial hearsay, such as statements from police interrogations or prior judicial proceedings, may not be admitted against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine. Traditional hearsay exceptions cannot substitute for this constitutional requirement.
Supporting sources
Only those discrete remarks that are genuinely self-inculpatory as to the declarant qualify. Portions that merely incriminate another person remain inadmissible even if embedded in an overall inculpatory narrative.
Supporting sources
Eric Espinoza sued Empire Logistics for wrongful termination. A former supervisor had written an email describing the company's discriminatory practices shortly before resigning. The supervisor later moved abroad and could not be located. The court admitted the email under the residual exception because it carried sufficient guarantees of trustworthiness and was more probative than other available evidence on the point offered.
A statement not covered by Rules 803 or 804 may be admitted if it is supported by sufficient guarantees of trustworthiness considering the totality of circumstances, is more probative on the point than other reasonably obtainable evidence, and serves the interests of justice.
Supporting sources
…that exceptions were invoked to admit testimonial statements against the accused in a criminal case.[^maj-6] Most of the hearsay exceptions covered statements that by their nature were not testimonial — for example, business records or statements in furtherance of a conspiracy. We do not infer from these that the Framers…