Hearsay and Its Exceptions: A Comprehensive Guide

90 questions on hearsay and its exceptions, answered and cited by the UpLaw editorial team.

• Are implied assertions hearsay under the Federal Rules?
• Are questions and commands hearsay?
• Are statements of fault admissible under the medical treatment exception?
• Can a declarant's statement of intent be used to prove another person's conduct?
• Can the prosecution use a police report as a public record?
• Can the same statement be admissible against one party but not another?
• Can you attack the credibility of a hearsay declarant who never testifies?
• Does recording a statement on a machine make it non-hearsay?
• Does satisfying the excited utterance exception satisfy the Confrontation Clause?
• Does the corroboration requirement for statements against penal interest apply to the prosecution?
• Does Tome apply to the 2014 rehabilitation prong of Rule 801(d)(1)(B)?
• Do "factual findings" in a government report include opinions and conclusions?
• How are the hearsay exceptions organized?
• How can a business record be admitted without a live custodian?
• How can a statement be circumstantial evidence of the declarant's state of mind?
• How do courts police the "background" or "course of investigation" gambit?
• How does California hearsay law differ from the Federal Rules?
• How does hearsay within hearsay work?
• How does New York hearsay law differ from the Federal Rules?
• How does the Confrontation Clause affect forensic reports?
• How does the Confrontation Clause analysis differ from hearsay analysis?
• How does the notice or effect-on-the-listener theory work?
• How do the present sense impression and excited utterance exceptions differ?
• How do you lay a foundation for an excited utterance?
• How do you prove unavailability at trial?
• Is a witness's own prior statement hearsay when she is on the stand?
• Is machine-generated output hearsay?
• Is sworn testimony from a prior proceeding hearsay?
• Must a statement be made to a physician to qualify under Rule 803(4)?
• What are the canonical hearsay-within-hearsay failures?
• What are the elements of a dying declaration?
• What are the elements of the business records exception?
• What are the elements of the recorded recollection exception?
• What are the four testimonial dangers that the hearsay rule guards against?
• What are the main non-truth purposes for offering an out-of-court statement?
• What are the requirements of the residual hearsay exception?
• What counts as a "statement" under Rule 801(a)?
• What did Bourjaily decide about coconspirator statements?
• What did Giles v. California decide about forfeiture by wrongdoing?
• What did Shepard v. United States hold about state-of-mind evidence?
• What did United States v. Salerno hold about the similar motive requirement?
• What did Williamson v. United States hold about parsing confessions?
• What does Rule 803(3) exclude, and why?
• What does the public records exception cover?
• What does the then-existing state of mind exception cover?
• What elements must be established for an employee's statement to bind the employer?
• What happens to hearsay that is admitted without objection?
• What is an excited utterance?
• What is an opposing party statement under Rule 801(d)(2)?
• What is a "predecessor in interest" for former testimony purposes?
• What is a present sense impression?
• What is a repeatable method for handling any hearsay objection at trial?
• What is a statement against interest, and how does it differ from an opposing party statement?
• What is a verbal act, and why is it not hearsay?
• What is forfeiture by wrongdoing?
• What is hearsay under the Federal Rules of Evidence?
• What is the bootstrapping rule in Rule 801(d)(2)?
• What is the correct trial sequence for using a document to help a forgetful witness?
• What is the difference between impeaching with a prior statement and using it substantively?
• What is the difference between procuring a declarant's attendance and her testimony?
• What is the difference between refreshing recollection and recorded recollection?
• What is the double-hearsay trap in business records?
• What is the Hillmon doctrine?
• What is the learned treatise exception?
• What is the near-miss problem under the residual exception?
• What is the single test for whether evidence is offered for its truth?
• What is the Tome premotive rule?
• What makes a declarant unavailable under Rule 804(a)?
• What makes a statement "testimonial" for Confrontation Clause purposes?
• What sentence wins a hearsay motion?
• What statements qualify under the medical diagnosis or treatment exception?
• What two disciplines make the "offered for its truth" test usable?
• When can a prior inconsistent statement be used as substantive evidence?
• When can silence be an adoptive admission?
• When is a coconspirator's statement admissible?
• When is a prior consistent statement admissible?
• When is a prior criminal conviction admissible as a hearsay exception?
• When is former testimony admissible under Rule 804(b)(1)?
• Which opposing party statements are excluded from Rule 806 impeachment?
• Who bears the burden on trustworthiness under the business records exception?
• Who can lay the foundation for a business record?
• Why are accident reports and incident reports often not business records?
• Why are prior identifications treated so favorably under the hearsay rules?
• Why doesn't the opposing party statement rule require any showing of reliability?
• Why does Rule 801(d) say certain statements "are not hearsay" rather than calling them exceptions?
• Why does the hearsay rule exist?
• Why does the oath requirement for prior inconsistent statements matter so much in practice?
• Why is Rule 801(d)(2)(D) the civil litigator's power tool?
• Why is the identity of an abuser admissible under Rule 803(4) in child abuse cases?
• Why was the ancient documents exception narrowed?