Also known as: hearsay exception · exceptions to hearsay · exceptions to the hearsay rule
Written by attorneys · grounded in primary & secondary sources — see below
A category of evidentiary rules that permit introduction of out-of-court statements otherwise barred by the hearsay prohibition when the statement possesses particular guarantees of trustworthiness or the declarant is unavailable.
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Hakeem Harris faces trial on fraud charges. The government seeks to introduce a transcript of prior testimony from a witness who died before trial. Prosecutors show they issued subpoenas and searched multiple states but could not locate the witness earlier. The court admits the transcript under the unavailable-declarant exception.
Holly Hayes stands trial for assault. The prosecution offers a recorded police interview in which the victim described the attack. The victim later moved abroad and refuses to return. Defense counsel had no prior chance to question the victim. The court excludes the recording because it is testimonial hearsay.
Hector Hernandez is prosecuted for murder. The state offers a statement the victim made to a nurse two hours before dying. Prosecutors prove they served process and hired an investigator but could not produce the now-deceased victim. The court admits the statement under the unavailable-declarant exception for dying declarations.
Harper Hill sues for breach of contract. She offers an email from a now-deceased supplier describing defective parts. The email was sent the day after delivery, contains specific details, and is corroborated by shipping records. No other exception fits. The court admits the email because it carries strong guarantees of trustworthiness and is more probative than other available proof.
Hannah Hale is tried for robbery. The state introduces a DNA report linking her to the crime scene. The analyst who performed the testing does not testify. A supervisor testifies instead. The court admits the report after finding it is not testimonial and the supervisor's testimony satisfies confrontation requirements.
Hakim Hall faces drug conspiracy charges. The government offers a recorded call in which a co-defendant discussed shipment details with Hall. The call occurred during the conspiracy. The court admits the statement under the co-conspirator hearsay exception after finding it meets the requirements of the applicable rule.
Unavailability under Rule 804(a)(5) requires the proponent to demonstrate that reasonable means were used to secure the declarant's attendance or testimony. Mere absence is insufficient if process or other efforts could have produced the witness. The rule distinguishes between different hearsay exceptions in subparagraphs (A) and (B).
Supporting sources
…that exceptions were invoked to admit testimonial statements against the accused in a criminal case.[^maj-6] Most of the hearsay exceptions covered statements that by their nature were not testimonial — for example, business records or statements in furtherance of a conspiracy. We do not infer from these that the Framers…
…(rejecting the "assumption that the core purpose of the Confrontation Clause of the Sixth Amendment is to prevent overly broad exceptions to the hearsay rule"). In Crawford , we recognized that this history could be squared with the language of the Clause, giving rise to a workable, and more accurate, interpretation of the Clause.…
…the Constitution. The Court's decision in Ohio v. Roberts laid down only "a general approach to the problem" of reconciling hearsay exceptions
…13–23 (hereinafter Innocence Network Brief). And as is true of many hearsay statements that fall within any of the 20 or more hearsay exceptions
…is firmly established that where made in furtherance of the objectives of a going conspiracy, such statements are admissible as exceptions to the hearsay rule
The Confrontation Clause bars admission of testimonial hearsay against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Traditional exceptions such as excited utterances or statements against interest do not substitute for this constitutional requirement when the statement is testimonial.
Supporting sources
Rule 807 permits admission when the statement is supported by sufficient guarantees of trustworthiness after considering the totality of circumstances and any corroborating evidence, and when the statement is more probative on the point offered than other reasonably obtainable evidence. The exception applies only when no other exception in Rules 803 or 804 covers the statement.
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Rule 807 does not require unavailability. The exception focuses instead on trustworthiness and comparative probative value. Courts may admit statements under the residual exception even when the declarant is available to testify.
Supporting sources