Also known as: hearsay exceptions · exceptions to hearsay · hearsay rule exception
Written by attorneys · grounded in primary & secondary sources — see below
A rule permitting admission of an out-of-court statement despite the general prohibition on hearsay when the circumstances surrounding the statement supply sufficient guarantees of trustworthiness. The exception applies only when the proponent satisfies the specific requirements of the governing rule or residual provision.
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Henry Harrison offers the transcript of a deposition given by a key eyewitness in an earlier proceeding. The witness now resides in another state and cannot be located despite service of process and repeated telephone attempts. The court admits the transcript because the proponent established unavailability without wrongful procurement.
The prosecution seeks to introduce a recorded statement made by the victim to police describing the attack. Hunter Hughes, the defendant, had no opportunity to cross-examine the victim before trial. The court excludes the statement because it is testimonial and the defendant lacked a prior chance to confront the declarant.
Hazel Hoffman offers a statement made by her husband minutes before he died from injuries sustained in a construction collapse. The proponent shows that reasonable efforts to locate the declarant failed. The court admits the statement under the dying-declaration exception because the declarant was unavailable and the statement concerned the cause of death.
Helios Energy offers an internal safety memorandum describing a turbine defect. No other document or witness directly addresses the defect, and the memorandum carries strong circumstantial guarantees of trustworthiness. The court admits the memorandum because it is more probative than any other available evidence and satisfies the residual exception requirements.
Prosecutors introduce a recorded call in which one alleged conspirator refers to Hunter Hughes by nickname while arranging a cocaine transaction. The court first determines that a conspiracy existed and that the statement was made in furtherance of it. The statement is admitted as non-hearsay under the co-conspirator exception.
Helena Hoffman calls 911 moments after her neighbor attacks her. The recording is offered at trial to prove the identity of the assailant. The court admits the call because the statements were made during an ongoing emergency and were not primarily testimonial.
Unavailability must be shown for exceptions under Rule 804, including former testimony and dying declarations. The proponent must demonstrate that the declarant cannot be present despite reasonable efforts and did not procure the absence. Rule 807 and Rule 803 exceptions do not require unavailability.
Testimonial hearsay may not be admitted against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Traditional hearsay exceptions cannot substitute for these constitutional requirements when the statement is testimonial.
…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…
…alive). [^maj-4]: " Roberts condition[ed] the admissibility of all hearsay evidence on whether it falls under a firmly rooted hearsay exception
…the Constitution. The Court's decision in Ohio v. Roberts laid down only "a general approach to the problem" of reconciling hearsay exceptions
…13–23 (hereinafter Innocence Network Brief). And as is true of many hearsay statements that fall within any of the 20 or more hearsay exceptions
…car. Plenty of time to dissemble or embellish. Moreover, even assuming that less than true immediacy will suffice for these hearsay exceptions
The statement must be supported by sufficient guarantees of trustworthiness after considering the totality of circumstances and any corroborating evidence. It must also be more probative on the point offered than any other evidence obtainable through reasonable efforts, and the proponent must give advance notice.
A statement by a co-conspirator made during and in furtherance of the conspiracy is excluded from the definition of hearsay under Rule 801(d)(2)(E). It therefore does not require a separate hearsay exception for admission.
Statements made during a 911 call are nontestimonial when the primary purpose is to enable police assistance to meet an ongoing emergency rather than to create evidence for later prosecution. The circumstances of the call determine whether the Confrontation Clause applies.