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hearsay

Hearsay is a statement that (1) the person making it (the declarant) does not make while testifying at the current trial or hearing (in other words, the statement is made out of court); and (2) a party offers as evidence to prove the truth of the matter asserted in the statement.

Hearsay is generally not admissible as evidence—but there are many exceptions to hearsay, and statements that are non-hearsay. The law governing hearsay is usually located in the applicable state or federal rules of evidence, which are interpreted and applied by courts in court opinions or cases.

In Texas, hearsay is addressed under the Texas Rules of Evidence, specifically Rule 801 and 802, which align with the general definition of hearsay as an out-of-court statement offered to prove the truth of the matter asserted. As a rule, hearsay is not admissible in court because the declarant is not present to be cross-examined, which raises concerns about the reliability of the statement. However, Texas law, similar to federal law, provides numerous exceptions to the hearsay rule. These exceptions are found in Rules 803 and 804 of the Texas Rules of Evidence and include situations where the declarant is unavailable or where the statement falls under a category that is deemed inherently trustworthy. Examples of exceptions include, but are not limited to, present sense impressions, excited utterances, statements of personal or family history, and records of regularly conducted activity. It is important for an attorney to carefully analyze whether a statement qualifies as hearsay and whether an exception applies when considering the admissibility of such evidence in a Texas court.


Texas Statutes & Rules

Federal Statutes & Rules

Federal Rules of Evidence, Rule 801 - Definitions That Apply to This Article; Exclusions from Hearsay
Rule 801 defines what constitutes hearsay and what does not, which is foundational for understanding the admissibility of certain statements in federal courts.

Under Rule 801, hearsay is defined as a statement that the declarant does not make while testifying at the current trial or hearing and a party offers in evidence to prove the truth of the matter asserted in the statement. This rule also provides definitions for 'statement,' 'declarant,' and 'matter asserted.' Importantly, Rule 801 outlines several exclusions from hearsay, including certain prior statements by witnesses and statements of identification.

Federal Rules of Evidence, Rule 802 - The Rule Against Hearsay
Rule 802 establishes the general rule that hearsay is not admissible in federal courts, with noted exceptions.

Rule 802 is a short but pivotal rule that states hearsay is not admissible unless any of the following provides otherwise: a federal statute, these rules, or other rules prescribed by the Supreme Court. This rule sets the stage for the numerous exceptions that follow in the subsequent rules.

Federal Rules of Evidence, Rule 803 - Exceptions to the Rule Against Hearsay
Rule 803 lists specific exceptions to the hearsay rule, allowing certain hearsay statements to be admissible even if the declarant is available to testify.

Rule 803 enumerates 23 exceptions to the rule against hearsay, which apply regardless of whether the declarant is available as a witness. These exceptions include, but are not limited to, present sense impressions, excited utterances, then-existing mental, emotional, or physical condition, statements made for medical diagnosis or treatment, recorded recollection, records of regularly conducted activity (business records), and public records.

Federal Rules of Evidence, Rule 804 - Hearsay Exceptions; Declarant Unavailable
Rule 804 provides exceptions to the hearsay rule that are applicable when the declarant is unavailable to testify.

Rule 804 sets forth exceptions to hearsay that are applicable when the declarant is considered unavailable, which includes criteria such as privilege, refusal to testify despite a court order, lack of memory, death, or infirmity. The exceptions under this rule include former testimony, statements under belief of imminent death, statements against interest, and statements of personal or family history.

Federal Rules of Evidence, Rule 805 - Hearsay Within Hearsay
Rule 805 addresses situations where a hearsay statement contains another hearsay statement, known as 'double hearsay' or 'hearsay within hearsay.'

Rule 805 states that hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the hearsay rule provided in the rules of evidence.

Federal Rules of Evidence, Rule 807 - Residual Exception
Rule 807 provides a 'catch-all' or 'residual' exception for hearsay statements that do not fit within the other specific exceptions but have equivalent guarantees of trustworthiness.

Rule 807 allows for the admission of a hearsay statement not covered by Rule 803 or 804 if the statement has sufficient guarantees of trustworthiness, is offered as evidence of a material fact, is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts, and admitting it will best serve the purposes of these rules and the interests of justice. The proponent must give an advance notice of the intent to use the statement, including its particulars and the reasons for its admissibility.