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Hearsay is an out-of-court statement offered to prove the truth of whatever it asserts, which is then offered in evidence to prove the truth of the matter. The problem with hearsay is that when the person being quoted is not present, it becomes impossible to establish credibility. As a result, hearsay evidence is generally not admissible in court. However, there are exceptions to the hearsay rule, which are explained below.

The first exception to the hearsay rule is the "excited utterance" exception. This exception applies when someone makes a statement during a startling event, in the heat of the moment, potentially providing an unguarded and accurate piece of information. This exception is most applicable in criminal cases, as the rationale behind it is that during or immediately following a criminal act, a person is not likely to have the presence of mind to lie or give false statements. In order for a statement to qualify as an excited utterance, it must have been made in conjunction with an event that would be so overwhelming as to discount the possibility of fabrication.

The second exception to the hearsay rule is the "statements against interest" exception. This exception applies to statements or actions that adversely affect the party who made the statement. These statements do not need to be formal admissions. The theory behind this exception is that a person would not fabricate a statement that is adverse to their own best interest. However, the witness offering the hearsay testimony may not be telling the truth, but that goes to credibility, not admissibility.

See: Federal Rules of Evidence 804(b)(3)

The third exception to the hearsay rule is the "matter of record" exception. This exception allows for official government records, private business records, prior court decisions or documents, and prior testimony of an unavailable witness to be admitted as evidence. In order for these records and documents to be admissible, they must be verifiable in some way, such as with a notarized original or a witness who can attest to their authenticity.

For federal trials, the rules for hearsay are contained within Article VIII of the Federal Rules of Evidence, Rules 801-807.

  • Rule 801(c) of the FRE defines hearsay. 
  • Rule 802 prohibits the admissibility of hearsay. 
  • Rule 803, Rule 804 and Rule 807 list exceptions to the rule against hearsay. 
  • Rule 805 discusses hearsay within hearsay.  
  • Rule 806 discusses the credibility of the declarant of the hearsay. 

See: Federal Rules of EvidenceARTICLE VIII. HEARSAYRule 803. Exceptions to the Rule Against Hearsay

It is important to remember that even with these exceptions, the judge has the discretion to determine whether or not to admit hearsay evidence.

[Last updated in January of 2023 by the Wex Definitions Team]