Hearsay is an out-of-court statement being offered to prove the truth of the matter asserted. The Federal Rules of Evidence prohibit introducing hearsay statements during applicable federal court proceedings, unless one of nearly thirty exemptions or exceptions applies.^[1] The Federal Rules of Evidence define hearsay as:

A statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. (F.R.E. 801(c)).^[2]

The "declarant" is the person who makes the out-of-court statement. (F.R.E. 801(b)).^[2]

The Federal Rules define a "statement" as "a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion." (F.R.E. 801(a)).^[2] The Supreme Court has further clarified that a "statement" refers to "a single declaration or remark, rather than a report or narrative."^[3] Thus, a trial court must separately analyze each individual statement, "sentence-by-sentence,"^[4] rather than analyzing the narrative as whole for hearsay content or exceptions.

"The truth of the matter asserted" means the statement itself is being used as evidence to prove the substance of that statement. For example, if a witness says, "Margot told me she loved Matt" to prove that Margot did in fact love Matt, the witness's statement is hearsay. Thus, the reason a party offers a statement is central to determining whether it qualifies as excludable hearsay.

If a statement is being used to prove something other than the truth of what the statement asserts, it is not hearsay and will not be prohibited by this rule. A quintessential example appears in the Malaysian case, Subramaniam v Public Prosecutor. The defendant-declarant testified that terrorists told him he would be killed if he refused to carry ammunition. On appeal, this statement was held not hearsay because it was being used to prove defendant's duress defense - that he reasonably believed he would be killed if he did not comply with the terrorists. The statement was not being used to show that the terrorists were in fact going to kill him if he did not comply (which would qualify as hearsay).

In cases like Subramaniam v Public Prosecutor where a statement is being offered for a purpose other than the truth of what it asserts, trial judges have discretion to give the jury a limiting instruction, mandating the jury consider the evidence only for its intended, non-hearsay purpose.^[5]

Although the Federal Rules of Evidence govern federal proceedings only, 38 states have adopted the Uniform Rules of Evidence, which closely track the Federal Rules.^[6]

The rule excluding hearsay arises from a concern regarding the statement's reliability. Courts have four principle concerns with the reliability of witness statements: the witness may be lying (sincerity risk), the witness may have misunderstood the situation (narration risk), the witness's memory may be wrong (memory risk), and the witness's perception was inaccurate (perception risk).^[7] Despite these risks, courts allow testimonial evidence because of in-court safeguards "calculated to discover and expose in detail its possible weaknesses, and thus to enable the tribunal (judge or jury) to estimate it at no more than its actual value".^[8]

These three safeguards reveal possible weaknesses in a statement^[7]:

1. Witnesses must testify under oath
2. Witnesses must be subject to cross-examination
3. Witnesses must be present in court for the fact-finder to assess their demeanor and credibility

Thus, courts prohibit hearsay because of the three missing safeguards intended to assuage reliability concerns of testimonial statements.^[7][9]

In the above example, the witness's statement "Margot told me she loves Matt" is unreliable because Margot is not under oath, she is not subject to cross-examination, and she is not present in court for the fact-finder to assess her credibility. The statement is just too unreliable to be permitted as evidence in court.

Under the Federal Rules of Evidence, a statement that meets one of the two following conditions is considered not hearsay, and thus not inadmissible. (F.R.E. 801(d)(1))^[10]

A prior statement by a witness is not hearsay if:

• (a) the previous statement is inconsistent with the witness's current testimony and the previous statement was made in a proceeding under oath, subject to penalty of perjury. (801(d)(1)(a))^[10]; OR
• (b) the previous statement is consistent with the witness's current testimony and the previous statement is being used to rehabilitate the witness's credibility. (801(d)(1)(b)); OR
• (c) it is the witness's own prior identification of a person. (801(d)(1)(c))

For these circumstances to apply, a witness (the "declarant") must be presently testifying in the proceeding and available for cross-examination.

If the prior statement is inconsistent with the current statement, the prior statement may be used both for impeachment (to prove the witness is lying) and substantively (for the truth of what the first statement asserts). Similarly, prior consistent statements being used to rebut an attack on the declarant's credibility, e.g. that the declarant is lying or biased, can be used for rehabilitation and substantively. The drafters of this section of the rules "felt that the jury should not be required to do mental gymnastics here—the jurors should not be asked to separate credibility use from substantive use."^[9]

The identification exemption applies, for example, where a witness previously identified someone but cannot remember that identification while testifying during trial. In United States Supreme Court Case United States v. Owens, 484 U.S. 554 (1988), the Court held a victim's previous identification of the defendant as his assailant was admissible under Federal Rule of Evidence 801(d)(1)(c), despite memory problems like being unable to remember seeing his attacker.^[11] The rationale of this rule is that prior identifications are more reliable because they happened closer in time to the event than to the court proceeding, and thus are more likely to be accurate than an identification (or lack thereof) in court.^[7]

Any statement made by one party is admissible as non-hearsay if offered by their opposing party. In civil cases, the plaintiff can introduce all statements made by the defense, and the defense can enter all statements made by the plaintiff into evidence. In criminal cases, the prosecution may introduce statements made by the defendant. But because the defendant's party opponent is "the People of X State" or "the United States," functionally, the defendant has no party opponent. Police officers, complaining witnesses, and victims are not the defendant's party opponents in a criminal case and the defendant may not admit their statements under this rule.

The Rules list five circumstances in which an opposing party's statement is admissible as non-hearsay:^[10]

The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

Bootstrapping. The Rules further explain that the offered statement "does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E)."^[10] This requires the offering party to introduce some independent, corroborative evidence proving the circumstances of C, D, or E are met (as opposed to permitting "bootstrapping," where the statement itself can prove the existence of the conditions). The trial judge then decides, by a preponderance of the evidence, whether these conditions have been proven by evaluating the statement itself and the independent evidence.^[12][13]

Rationale. Unlike other hearsay rules which are concerned principally with reliability, this rule extends common law ideals of adversarial fairness.^[7][9]

Under the Federal Rules of Evidence, certain statements that qualify as hearsay are nevertheless admissible as exceptions to the hearsay exclusion rule. Some of these exceptions apply regardless of the declarant's availability to testify in court. See F.R.E. 803(1)-(23).^[14] Others apply only when the declarant is unavailable to testify at the trial or hearing. See F.R.E. 804.^[15]

Many of the exceptions listed below are treated more extensively in individual articles.

Hearsay-within-hearsay, or "double hearsay," occurs when multiple out-of-court assertions appear in one statement. For example, if a witness testifies, "Officer Lincoln told me that interviewed the defendant Claire, who admitted that she committed the robbery." There are two layers of hearsay here; two out-of-court declarants. The first layer is what Officer Lincoln told the witness about conducting an interview. Officer Lincoln is the first declarant: "I interviewed the defendant." The second layer is what the defendant Claire told Officer Lincoln during that interview. Defendant Claire is the second declarant: "I committed the robbery."

The Federal Rules clarify that each layer of hearsay must have an exemption or exception for the entire statement to be admissible. (F.R.E. 805)^[16] The second layer of hearsay, what Defendant Claire said about the robbery, can be admitted as an opposing party's statement. But the first layer, Officer Lincoln's statement to the witness, still needs an exception or exemption for the entire statement to be admissible under the hearsay rules.

Rationale. As legal evidence scholar Paul F. Rothstein describes the double-hearsay problem:

"One child whispers to the next a message, who whispers it to the next, who whispers it to the next, etc., on down a long line of children. When the last child and the first child compare the message, it is usually found that the two are not very alike."^[9]

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