Also known as: hearsay exception · nonhearsay · non-hearsay · FRE 801(d) · hearsay exemptions
Written by attorneys — see sources below.
A set of evidentiary rules that either designate specified out-of-court statements as nonhearsay or admit them under enumerated exceptions to the hearsay prohibition.
Hana Huang offered the deposition of a now-deceased witness against Harbor Shipping in a cargo-damage suit. The proponent showed that the witness had died before trial and that no reasonable effort could have secured his live attendance. The court admitted the deposition under the former-testimony exception.
Henry Hoffman testified that a manager had shorted his commissions. Defense counsel implied Hoffman fabricated the account after learning of a pending bonus dispute. The court excluded emails Hoffman wrote after the dispute arose but admitted earlier notes he had sent before any motive existed.
Hannah Hughes sought to introduce a dying declaration from a witness now imprisoned in another state. The proponent made no effort to obtain the witness by process or other reasonable means. The court ruled the statement inadmissible for lack of unavailability.
Hamid Hassan identified the defendant in a lineup but later could not recall the basis for the identification. The prosecution offered the lineup statement through a detective. The court admitted the identification because Hassan remained available for cross-examination.
Hakeem Harris offered a hospital record containing a nurse's note about a patient's description of an accident. The note was not covered by any specific exception yet bore strong circumstantial guarantees of trustworthiness and was more probative than other available evidence. The court admitted the note under the residual exception.
Hugo Hart faced charges after a lab matched his DNA to evidence from a crime scene. The prosecution's expert relied on an accredited laboratory report without calling the analyst who prepared it. The court permitted the expert testimony because the report was not offered for its truth and the defendant could call the analyst if desired.
On February 10, 2000, in Chicago, Illinois, a young woman named L. J. was abducted while walking home from work. The perpetrator forced her into his car, raped her, robbed her of money and other personal items, and pushed her out into the street. L. J. ran home and reported the attack to her mother, who called the police. An ambulance took L. J. to the hospital, where doctors treated her wounds and took a blood sample and vaginal swabs for a sexual-assault kit. A Chicago Police detective collected the kit, labeled it with an inventory number, and sent it under seal to the Illinois State Police (ISP) lab. At the ISP lab, a forensic scientist received the sealed kit. He conducted a chemical test that confirmed the presence of semen on the vaginal swabs, and he then resealed the kit and placed it in a secure evidence freezer. During the period in question, the ISP lab often sent biological samples to Cellmark Diagnostics Laboratory in Germantown, Maryland, for DNA testing. There was evidence that the ISP lab sent L. J.’s vaginal swabs to Cellmark for testing and that Cellmark sent back a report containing a male DNA profile produced from semen taken from those swabs. At this time, petitioner was not under suspicion for L. J.’s rape. Sandra Lambatos, a forensic specialist at the ISP lab, conducted a computer search to see if the Cellmark profile matched any of the entries in the state DNA database. The computer showed a match to a profile produced by the lab from a sample of petitioner’s blood that had been taken after he was arrested on unrelated charges on August 3, 2000. On April 17, 2001, the police conducted a lineup at which L. J. identified petitioner as her assailant. Petitioner was then indicted for aggravated criminal sexual assault, aggravated kidnaping, and aggravated robbery. Petitioner’s bench trial began in April 2006. In open court, L. J. again identified petitioner as her attacker. The State also offered three expert forensic witnesses to link petitioner to the crime through his DNA. First, Brian Hapack, an ISP forensic scientist, testified that he had confirmed the presence of semen on the vaginal swabs taken from L. J. by performing an acid phosphatase test. Second, Karen Abbinanti, a state forensic analyst, testified that she had used Polymerase Chain Reaction (PCR) and Short Tandem Repeat (STR) techniques to develop a DNA profile from a blood sample that had been drawn from petitioner after he was arrested in August 2000. Third, the State offered Sandra Lambatos as an expert witness in forensic biology and forensic DNA analysis. Lambatos testified that, based on her own comparison of the two DNA profiles, she concluded that petitioner cannot be excluded as a possible source of the semen identified in the vaginal swabs, and that the probability of the profile’s appearing in the general population was 1 in 8.7 quadrillion black, 1 in 390 quadrillion white, or 1 in 109 quadrillion Hispanic unrelated individuals. The Cellmark report itself was neither admitted into evidence nor shown to the factfinder. Lambatos did not quote or read from the report; nor did she identify it as the source of any of the opinions she expressed. The trial court found petitioner guilty of the charges against him. The state court of appeals affirmed in relevant part, concluding that Lambatos’ testimony did not violate petitioner’s confrontation rights because the Cellmark report was not offered into evidence to prove the truth of the matter it asserted. The Supreme Court of Illinois also affirmed. The Supreme Court granted certiorari.
View caseUnavailability is required for exceptions under Rule 804 such as former testimony and dying declarations. The proponent must demonstrate that the declarant cannot attend despite reasonable efforts and did not procure the absence. Availability is irrelevant for Rule 803 exceptions and nonhearsay designations.
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The statement must predate the alleged motive to lie or exaggerate. Statements made after the motive arose cannot rebut the charge even if consistent with trial testimony. This timing rule prevents bootstrapping after the witness has an incentive to fabricate.
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Yes. The identification qualifies as nonhearsay if the witness is subject to cross-examination about the statement regardless of present memory. The rule focuses on the opportunity for cross-examination rather than the witness's current recollection.
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The statement must possess sufficient guarantees of trustworthiness after considering the totality of circumstances and be more probative than other reasonably obtainable evidence. Courts apply the exception sparingly and only when the statement is not covered by Rules 803 or 804.
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…statement was inadmissible under the Confrontation Clause of the Sixth Amendment, it was admissible under a “firmly rooted” hearsay exception for statements against penal interest and that admitting it did not violate the Constitution. We granted certiorari to determine whether the State’s use of Sylvia’s statement violated the…