HEARSAY EXCLUSIONS AND EXCEPTIONS FLOWCHARTS
A guide to identify whether an out-of-court statement falls within an exclusion or exception to the rule against hearsay and is
therefore admissible in federal court to prove the content of the statement.
Practical Law Litigation
Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted (Federal Rule of Evidence
(FRE) 801). The statement can be an oral or a written assertion or nonverbal conduct that a person intends as an assertion. Outof-court statements are generally not admissible at trial in federal court to prove the contents of the statements, unless the
statement is relevant under FRE 401 and either:
„
„
Constitutes admissible nonhearsay because it falls under an exclusion to the rule against hearsay.
Falls under an exception to the rule against hearsay.
DETERMINING ADMISSIBLE NONHEARSAY
Is counsel offering an
opposing party’s out-of-court
statement against them?
This statement
is hearsay.
No
This statement
is hearsay.
Is the statement by a declarant who is
testifying in the current trial, hearing,
proceeding, or deposition and subject
to cross-examination?
Yes
Was the statement either:
„ Made by the opposing party in an individual
or a representative capacity?
„ Adopted or believed to be true by the
opposing party?
„ Made by a person who the opposing party
authorized to make the statement on the
subject?
„ Made by the opposing party’s agent or employee
on a matter within the scope of that relationship
while it existed?
„ Made by the opposing party’s co-conspirator
during and in furtherance of the conspiracy?
No
OR
Yes
No
This statement
is hearsay.
Is counsel using the prior statement to identify a person as
someone the declarant perceived earlier (FRE 801(d)(1)(C))?
Yes
Yes
No
This statement is
nonhearsay, and the
court may admit it for the
truth of the matter the
declarant asserts.
Is the prior statement consistent with
the declarant’s current testimony?
Yes
No
Yes
Did the declarant make the prior
inconsistent statement under penalty
of perjury at a trial, hearing, deposition,
or other proceeding (FRE 801(d)(1)(A))?
No
This statement
is hearsay.
Is the prior consistent statement
offered to either:
„ Rebut an express or implied claim that
the declarant recently fabricated the
statement?
„ Rebut an express or implied claim
that the declarant’s current testimony
results from some recent, improper
influence or motive?
„ Rehabilitate the declarant’s credibility
as a witness after being attacked on
another ground?
(FRE 801(d)(1)(B).)
Yes
Did the declarant make the prior consistent statement
before the attack on their current testimony (see Tome v.
United States, 513 U.S. 150, 167 (1995))?
Yes
No
This statement is
nonhearsay, and the
court may admit it for
the truth of the matter
the declarant asserts.
This statement
is hearsay.
No
This statement
is hearsay.
(continued on reverse)
(continued from reverse)
DETERMINING HEARSAY EXCEPTIONS
Is the out-of-court statement:
„ A present sense impression (FRE 803(1))?
„ An excited utterance (FRE 803(2))?
„ A statement of then-existing mental, emotional, or physical
condition (FRE 803(3))?
„ A statement made for medical diagnosis or treatment (FRE 803(4))?
„ A recorded recollection (FRE 803(5))?
„ A record of a regularly conducted activity or evidence indicating the
absence of one (FRE 803(6), (7))?
„ A foreign record of a regularly conducted activity
(18 U.S.C. § 3505(a))?
„
„
„
„
„
„
„
„
A public record or testimony or a certification indicating the
absence of one (FRE 803(8)-(10))?
A qualifying personal or family history record or information
(FRE 803(11)-(13), (19), and (23))?
A qualifying property record or information (FRE 803(14)-(15), (20),
and (23))?
A statement from an ancient document (FRE 803(16))?
A market report or similar commercial publication (FRE 803(17))?
A statement from a learned treatise, periodical, or pamphlet
(FRE 803(18))?
A statement about a person’s character reputation (FRE 803(21))?
A final judgment of conviction (FRE 803(22))?
Yes
No
The court may admit this
statement for the truth of the matter
the declarant asserts, unless the
Confrontation Clause bars it.
Do sufficient guarantees of trustworthiness exist about the statement given:
„ The totality of circumstances under which the declarant made the statement?
„ Independent evidence that supports the statement?
(FRE 807.)
Yes
No
Is the statement more probative than any other
evidence that the offering party can obtain using
reasonable efforts?
Yes
No
Before offering the statement into evidence,
did the offering party provide the adverse
party with reasonable notice that includes:
„ A description of the statement’s
substance that allows the adverse party a
fair opportunity to meet the evidence?
„ The declarant’s name?
Did counsel give that notice before trial?
No
Yes
Did counsel show cause
for delayed notice?
Was the notice
in writing?
This statement
does not
fall under
a hearsay
exception, and
the court may
not admit it.
Yes
Yes
This statement
falls under the
residual hearsay
exception, and the
court may admit
it for the truth of
the matter the
declarant asserts
(FRE 807).
No
Yes
No
Did the declarant make the statement:
„ During prior testimony (FRE 804(b)(1))?
„ Under the belief of imminent death (FRE 804(b)(2))?
„ Against the declarant’s interest (FRE 804(b)(3))?
„ About the personal or family history of the declarant
or the declarant’s close relative (FRE 804(b)(4))?
Yes
No
Is the declarant unavailable because they:
Invoked a privilege (for example, the privilege against selfincrimination)?
„ Refuse to testify despite a court order to do so?
„ Have a lapse in memory regarding the subject matter?
„ Died or cannot testify because of mental or physical illness?
„ Are absent from trial or hearing, and the statement’s proponent
cannot procure the declarant’s attendance or testimony as set
out in FRE 804(a)(5)?
(FRE 804.)
„
No
Yes
The court may admit this
statement for the truth of the
matter the declarant asserts,
unless the Confrontation
Clause bars it.
This statement does not fall
under a hearsay exception, and
the court may not admit it.
No
Yes
Is the declarant’s statement being
offered against a party that wrongfully
and intentionally caused the declarant’s
unavailability under FRE 804(b)(6)?
No
This statement does not fall under a hearsay
exception, and the court may not admit it.