Hearsay

Cheat Sheet
Many law students
consider hearsay a
challenging subject,
but it doesn’t have to
be! We’ve compiled
eight essential tips
to help you better
understand hearsay.
1
Break the rule into questions.
What sort of evidence implicates the hearsay rule?
When you’re confronted with a piece of evidence, ask
yourself this series of quick questions:

> Is the evidence a statement? (Remember, this can

include writings and assertive conduct!)

> Was it made by a declarant? (Remember, the declarant

must be a person!)
> Was it made outside of court?

> Is it being offered to prove the truth of the matter asserted?

If the answer to any question is “no,” there is no hearsay

issue. If the answer is “yes” to all of them, you have
hearsay. Breaking the basic rule into these four
questions will help you identify the type of evidence
that requires a hearsay analysis and remind you of the
complications that can arise during that analysis.

Hearsay Cheat Sheet // 3

2 It’s all about reliability.
There’s more to hearsay, but it helps to think about all
parts of the hearsay rule in the context of reliability.

Why is hearsay generally excluded?

Why is nonhearsay treated as an exclusion
instead of an exception?
We are less concerned about the reliability of this evidence
because the declarants in question are part of the litigation,
either as witnesses or as parties. They can be cross-examined
in court, and the judge or jury can evaluate their credibility.
Because we have concerns about the reliability of out-
of-court statements that are offered to prove truth.

What’s the common theme among the

“declarant’s availability immaterial” exceptions?
The statements are inherently reliable. Official documents
and statements made instinctively (e.g., an excited utterance),
for example, are unlikely to be fabricated.
3
The common rules for nonhearsay.
Rule 801(d) provides the conditions that a statement must
meet to be considered nonhearsay. Remember that for all three
types of prior statements under Rule 801(d)(1), the declarant of
the hearsay statement must be a witness in the case and subject
to cross-examination. If the declarant of the statement is not a
witness in the current case, look elsewhere (e.g., an applicable
hearsay exception) to bring in the evidence.

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4
Impeachment versus substantive evidence.
Remember that you may be confronted with evidence that is excluded by the hearsay rule and
cannot be introduced as substantive evidence, but may still be admissible for the limited purpose of
impeaching the credibility of a witness. In particular, look for prior inconsistent statements that were
not made under oath. This type of statement can be used to impeach a witness, but it would not come
in as substantive evidence to prove the truth of the matter asserted.
5
The Rule of Fives for the unavailability exceptions.
Remember that there are five basic ways that someone is
considered unavailable for the purposes of the hearsay rule
[Rule 804(a)], and five key exceptions that may apply when
the declarant is unavailable as a witness [Rule 804(b)].

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6
The broad definition of unavailability.
Our five basic categories of unavailability go beyond
what a person would normally think of when
defining “unavailable.” Death and physical absence,
of course. However, a person can be a witness at trial
and still be considered unavailable for the purposes of
the hearsay rule. Lack of memory about the subject
matter, exemption due to privilege, and refusal
despite a court order are the other ways that a
declarant can be alive and sitting in the courtroom
and still be considered unavailable.
7
The difference between Rule 803 and Rule 804.
The “declarant’s availability immaterial” exceptions in
Rule 803 apply for any category of declarant. The declarant
can be alive and on the witness stand, dead, or anything in
between. This means that statements by unavailable
declarants can come in under Rule 803 and Rule 804.
But Rule 804 applies only if the declarant is unavailable.
We cannot use Rule 804 exceptions to bring in a hearsay
statement if the declarant is available.

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8
Opposing party’s statements vs. statement against interest.
For the purposes of the hearsay rule, “an opposing party’s statement” is a type of nonhearsay under Rule 801(D)(2).
A “statement against interest” is a hearsay exception that applies to bring in certain statements if the declarant is
unavailable. It’s important to remember that these are two different ideas. It’s true that many of the statements you
evaluate as an “opposing party’s statement” will be against the interest of that opposing-party declarant, but it is not
a requirement. Read both of the rules very carefully and understand when and how they apply.
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