§ 31.01 OVERVIEW OF ARTICLE VIII

• Jurisdiction: United States

§ 31.01. OVERVIEW OF ARTICLE VIII

In the absence of an exception or exemption, Federal Rule 802 bars hearsay evidence. Rule 802 must be read in conjunction with Rule 801, which defines hearsay.

Exceptions. The exceptions to the hearsay rule are found in three rules.¹ Rule 803 specifies twenty-three exceptions that apply whether or not the declarant is available.² Rule 804 specifies five exceptions that apply only if the declarant is unavailable.³ Rule 807 recognizes a residual or "catch all" exception, under which some hearsay statements may be admitted on an ad hoc basis.⁴

Exemptions. In addition to the exceptions, there are two categories of hearsay statements that the drafters wanted to admit into evidence.⁵ However, for theoretical reasons, the drafters choose not to classify them as exceptions. Instead, these statements were simply defined out of the definition of hearsay in Rule 801(d). In order to distinguish these categories from the exceptions, they are often called "exemptions" or "exclusions." Note that the exemptions function like exceptions; statements falling within them are not barred by the hearsay rule.

The first category of exemptions involves prior statements of a witness. Rule 801(d)(1) provides that certain (1) prior inconsistent statements, (2) prior consistent statements, and (3) statements of identification are not hearsay. This represents a change from the common law. The second category, Rule 801(d)(2), covers admissions of a party-opponent. Under the common law, admissions were characterized as exceptions to the hearsay rule. The Federal Rules do not change this result; admissions are still admissible — albeit under a different theory. There are five types of admissions: (1) individual admissions, (2) adoptive admissions, (3) authorized admissions, (4) agent admissions, and (5) coconspirator admissions.

Multiple hearsay. Rule 805 governs the admissibility of multiple hearsay — i.e., hearsay within hearsay. If each part of a double hearsay statement falls within an exception, the statement is admissible.⁶

Impeachment of hearsay declarants. Rule 806 regulates the calling of hearsay declarants as well as the impeachment and rehabilitation of declarants. In effect, a hearsay declarant is a witness who, with a few modifications, may be impeached in the same manner as trial witnesses.⁷

Admissibility. Evidence that falls within one of the exceptions or exemptions is not automatically admissible. The statement must also satisfy the...