§ 31.10 DOUBLE HEARSAY: FRE 805

• Jurisdiction: North Carolina

§ 31.10. DOUBLE HEARSAY: FRE 805

Rule 805 governs the admissibility of multiple hearsay. The rule permits the admission of hearsay within hearsay if each part of the hearsay chain falls within an exception or exemption.¹⁰⁰ Multiple hearsay issues often arise in connection with the public¹⁰¹ and business records exceptions.¹⁰² Those exceptions encompass a double-hearsay component if both declarants are under a business duty¹⁰³ or an official duty.¹⁰⁴ In this situation, there is no need to resort to Rule 805.

If, however, only the entrant is under such a duty, the statement is inadmissible in the absence of another hearsay exception. Here Rule 805 comes into play. The federal drafters provided several examples:

Thus a hospital record might contain an entry of the patient's age based on information furnished by his wife. The hospital record would qualify as a regular entry except that the person who furnished the information was not acting in the routine of the business. However, her statement independently qualifies as a statement of pedigree (if she is unavailable) or as a statement made for purposes of diagnosis or treatment, and hence each link in the chain falls under sufficient assurances. Or, further to illustrate, a dying declaration may incorporate a declaration against interest by another declarant.¹⁰⁵

Other examples are found in the cases,¹⁰⁶ including one involving triple hearsay.¹⁰⁷

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Notes:

^[100] See Fed. R. Evid. 805 advisory committee's note ("On principle it scarcely seems open to doubt that the hearsay rule should not call for exclusion of a hearsay statement which includes a further hearsay statement when both conform to the requirements of a hearsay exception."). See also Burns v. Board of County Comm'rs of Jackson County, 330 F.3d 1275, 1284 n.5 (10th Cir. 2003) ("[T]he comment was reported to Burns by a third party, Jim Batiste, who may or may not have heard it himself. Hearsay within hearsay is admissible only 'if each part of the combined statements conforms with an exception to the hearsay rule.' Fed.R.Evid. 805. Burns identifies no exception to the hearsay rule that would apply to Batiste's out-of-court statement.").

^[101] Fed. R. Evid. 803(8).

^[102] Fed. R. Evid. 803(6).

^[103] See infra § 33.10 (discussing business records; double hearsay).

^[104] See infra § 33.12[B] (discussing public records; matters observed-legal duty).

^[105] Fed. R. Evid. 805 advisory committee's note.

^[106] E.g., United States v. Steele, 685 F.2d 793...