Overcoming Hearsay Objections Using FRE 803 Exceptions

Overcoming Hearsay Objections Using FRE 803 Exceptions

Hearsay evidence can often be a major roadblock in trials. But luckily, there are a number of exceptions that can help you get hearsay admitted into evidence. In this article, we’ll break down the various exceptions under Federal Rule of Evidence 803 that can help you overcome those pesky hearsay objections.

What is Hearsay?

First, a quick refresher on what hearsay is. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. In other words, if you’re trying to admit a statement that was made outside of court to prove that what was said is true, then it’s hearsay.

There are a few reasons why hearsay is generally prohibited:

• No opportunity to cross-examine the declarant
• Statement could be unreliable
• Jury can’t assess declarant’s demeanor

So unless a hearsay exception applies, hearsay evidence will be excluded. This is where FRE 803 comes in!

FRE 803 – The Hearsay Exceptions

Federal Rule of Evidence 803 contains 24 exceptions to the hearsay rule. These exceptions allow hearsay to be admitted into evidence, regardless of whether the declarant is available to testify. Let’s break down some of the most useful FRE 803 exceptions for overcoming those hearsay objections:

Present Sense Impression

A present sense impression is a statement describing an event or condition made while or immediately after the declarant perceived it. For example, a witness testifies that when she heard a crash outside, she ran to the window and heard a bystander say “That car just ran the red light!” The bystander’s statement would likely be admissible under 803(1).

Excited Utterance

An excited utterance is a statement relating to a startling event made while under the stress or excitement caused by the event. So if a witness is still emotional or distraught from an incident when they make a statement about it, that statement would likely fall under 803(2). For example, a witness tells police “He shot me!” minutes after being shot would be admissible as an excited utterance.

Then-Existing Mental, Emotional, or Physical Condition

Under 803(3), a statement of the declarant’s then-existing state of mind, emotion, sensation, or physical condition is not excluded by the hearsay rule. So a victim’s statements that they were feeling scared of the defendant would likely be admissible under this exception.

Statements for Medical Diagnosis or Treatment

Statements made for medical diagnosis or treatment are admissible under 803(4). For example, a sexual assault victim’s statements to a nurse about how the assault occurred would likely be admissible under this exception. The rationale is that statements made for medical treatment are reliable because the declarant has a self-interest in being truthful to receive proper care.

Recorded Recollection

Under 803(5), a record that memorializes a matter about which the witness once had knowledge, but now has insufficient recollection, can be admitted as an exception to hearsay. For example, if a witness can no longer remember details of an event, you could show them their diary entry or email written at the time to prove what happened.

Records of a Regularly Conducted Activity

Also referred to as the business records exception, 803(6) allows records of a regularly conducted activity to be admitted into evidence as an exception to hearsay. This covers things like medical records, employment records, and other business documents. As long as they were made in the regular course of that business, these records can be admitted over a hearsay objection.

Public Records

Under 803(8), records, reports, statements or data compilations made by a public office can be exempted from the hearsay rule. Police reports, court records, and other public documents could potentially come into evidence this way.

Learned Treatises

Statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art can also be exempted from the hearsay rule under 803(18). So if an expert witness is testifying, you may be able to read excerpts from authoritative texts to prove the theories upon which the expert is relying.

Reputation Concerning Character

Under 803(21), reputation evidence regarding a person’s character may be admitted into evidence over a hearsay objection. So you may be able to have a witness testify to the defendant’s reputation in the community for being peaceful or violent.

Judgment of a Previous Conviction

Finally, 803(22) allows evidence of a final judgment of conviction to be admitted into evidence if offered to prove any fact essential to the judgment. So certified copies of convictions can come in as non-hearsay.

How to Use These Exceptions

When you’re seeking to admit hearsay statements, think creatively about how they might fit into one of these exceptions. Present sense impressions, excited utterances, and statements of medical diagnosis are especially useful in the context of first responder or victim statements. Business and public records also come up frequently.

When you want to admit hearsay, lay the proper foundation to establish that an exception applies. Be prepared to explain why the statement bears guarantees of trustworthiness satisfying the rationale behind the hearsay rule. And keep in mind that the availability of the declarant may affect the admissibility analysis – for example, if the declarant is available to testify, prior inconsistent statements offered for impeachment may be preferable to hearsay exceptions.

While hearsay objections can often stand in the way of introducing important evidence, FRE 803 gives you plenty of tools to overcome them. With the right preparation and foundation, you can get that hearsay admitted by fitting it into one of the exceptions. It takes creativity and understanding the rationale behind the rules, but it can be done!