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11.2 Hearsay Exceptions (FRE 803 & 804) & Sixth Amendment Confrontation

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11 Chapter 11: Evidence: Hearsay, Exceptions & Writings

11.1 The Hearsay Rule, Non-Hearsay Purposes & FRE 801(d) Exclusions 11.2 Hearsay Exceptions (FRE 803 & 804) & Sixth Amendment Confrontation 11.3 Evidentiary Privileges, Authentication & Best Evidence Rule

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11.2 Hearsay Exceptions (FRE 803 & 804) & Sixth Amendment Confrontation

Key Takeaways Explain This Topic AI

FRE 804 exceptions apply only when the declarant is unavailable under the 'PRISM' criteria: Privilege, Refusal to testify, Incapacity/Death, Subpoena/Process failure, or lack of Memory; unavailability cannot be procured by the proponent of the statement.

FRE 804(b) exceptions: Former Testimony (804(b)(1) requires prior opportunity and similar motive to cross-examine; grand jury testimony excluded), Dying Declarations (804(b)(2) requires belief of impending death concerning cause/circumstances; admissible only in homicide prosecutions and civil cases), Statements Against Interest (804(b)(3) contrary to pecuniary/penal interest when made; criminal penal interest requires corroborating circumstances), and Forfeiture by Wrongdoing (804(b)(6)).

FRE 803 exceptions apply regardless of declarant availability: Present Sense Impression (803(1) describing event while perceiving or immediately after), Excited Utterance (803(2) relating to startling event under stress), State of Mind (803(3) intent/motive/Hillmon future conduct doctrine), Medical Diagnosis/Treatment (803(4) medical narrative excluding fault attribution), Recorded Recollection (803(5)), Business Records (803(6) regular activity; Palmer v. Hoffman excludes litigation records), and Public Records (803(8)).

Sixth Amendment Confrontation Clause (Crawford v. Washington): in criminal prosecutions, testimonial hearsay is strictly inadmissible against the accused unless the declarant is unavailable AND the defendant had a prior opportunity to cross-examine the declarant.

The Primary Purpose Test (Davis, Bryant, Clark) distinguishes non-testimonial statements made to assist law enforcement during an ongoing emergency from testimonial statements made to establish or prove past events potentially relevant to later criminal prosecution; forensic laboratory certificates (Melendez-Diaz, Bullcoming) are testimonial.

Last updated: August 2026

11.2 Hearsay Exceptions (FRE 803 & 804) & Sixth Amendment Confrontation

Even if an out-of-court statement is offered for the truth of the matter asserted and fails to qualify as a non-hearsay exclusion under FRE 801(d), it may still be admissible under a recognized hearsay exception . The Federal Rules of Evidence bifurcate hearsay exceptions into two fundamental statutory schemes:

FRE 804 Exceptions: Applicable only if the declarant is unavailable as a witness.

FRE 803 Exceptions: Applicable regardless of whether the declarant is available to testify.

In criminal prosecutions, any hearsay statement offered against the defendant must additionally clear the constitutional hurdle of the Sixth Amendment Confrontation Clause under Crawford v. Washington .

1. Declarant Unavailability Under FRE 804(a)

To introduce hearsay under any FRE 804(b) exception, the proponent must establish as a preliminary fact under FRE 104(a) that the declarant is unavailable . Unavailability is governed by the "PRISM" mnemonic: +-----------------------------------------------------------------------------+

  • | THE FRE 804(a) UNAVAILABILITY CRITERIA (PRISM) |
  • | |
  • | [P] PRIVILEGE: Court rules that a privilege applies (e.g., 5th Amendment, |
  • | attorney-client, spousal immunity). |
  • | |
  • | [R] REFUSAL: Declarant refuses to testify despite a direct court order. |
  • | |
  • | [I] INCAPACITY: Declarant is dead, or suffers from severe physical or |
  • | mental illness/infirmity. |
  • | |
  • | [S] SUBPOENA / ABSENCE: Proponent cannot procure declarant's attendance |
  • | by process or other reasonable means. |
  • | |
  • | [M] MEMORY: Declarant testifies to a lack of memory of the subject matter.|
  • | |
  • | * PROHIBITION ON PROCUREMENT: Unavailability is NOT established if the |
  • | proponent wrongfully caused or procured the declarant's unavailability. |
  • +-----------------------------------------------------------------------------+
  • 2. FRE 804 Exceptions (Declarant Must Be Unavailable)
  • 1. Former Testimony (FRE 804(b)(1))

Rule: Testimony given by an unavailable declarant as a witness at a trial, hearing, or lawful deposition (whether during the current proceeding or a different one).

Opposing Party Requirement: The party against whom the testimony is now offered (or, in a civil case, a predecessor in interest ) must have had an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Grand Jury Exclusion: Grand jury testimony never qualifies against a criminal defendant under FRE 804(b)(1) because the defendant had no opportunity to cross-examine witnesses before the grand jury.

Predecessor in Interest: In civil cases only, if a prior party had an identical economic or legal stake in cross-examining the witness on the exact same issue, their prior cross-examination satisfies the rule for a successor party.

2. Statement Under the Belief of Impending Death / Dying Declaration (FRE 804(b)(2))

Rule: A statement made by a declarant who believed that their death was imminent , concerning the cause or circumstances of what the declarant believed to be impending death.

Scope of Proceedings: Admissible only in civil cases and homicide criminal prosecutions . It is inadmissible in non-homicide criminal prosecutions (e.g., attempted murder, battery, armed robbery).

Declarant Survival: The declarant does not actually need to die , but must be unavailable at the time of trial (e.g., in a persistent vegetative state, comatose, or missing).

3. Statement Against Interest (FRE 804(b)(3))

Rule: A statement that, at the time of its making, was so contrary to the declarant's proprietary or pecuniary interest , or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability (penal interest) , that a reasonable person in the declarant's position would have made it only if believing it to be true.

Distinguished from Party Admissions (801(d)(2)):

  • Statements against interest can be made by any non-party declarant (who must be unavailable);
  • Must have been against interest when made ;

Declarant must have personal knowledge under FRE 602.

Criminal Corroboration Requirement: In a criminal case, a statement tending to expose the declarant to criminal liability (offered to inculpate or exculpate the accused) must be supported by corroborating circumstances that clearly indicate its trustworthiness .

4. Statement Offered Against a Party That Wrongfully Caused Declarant's Unavailability (FRE 804(b)(6))

Rule (Forfeiture by Wrongdoing): A statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant's unavailability , and did so with the intent to cause that unavailability ( Giles v. California ).

Effect: The wrongdoing party forfeits both hearsay objections and Sixth Amendment Confrontation Clause protections.

3. FRE 803 Exceptions (Declarant Availability Immaterial)

Under FRE 803, the following statements are admissible regardless of whether the declarant is available or testifies: +-----------------------------------------------------------------------------+

  • | FRE 803 EXCEPTIONS (AVAILABILITY IMMATERIAL) |
  • | |
  • | RULE & EXCEPTION TIMING & FOUNDATIONAL REQUIREMENTS |
  • | -------------------------- -------------------------------------------- |
  • | FRE 803(1) - Statement describing or explaining an event |
  • | Present Sense Impression or condition; |
  • | - Made WHILE or IMMEDIATELY AFTER perceiving |
  • | it (No time for calculated reflection). |
  • | |
  • | FRE 803(2) - Statement relating to a STARTLING event; |
  • | Excited Utterance - Made while UNDER THE STRESS OF EXCITEMENT |
  • | caused by the event or condition. |
  • | |
  • | FRE 803(3) - Statement of then-existing state of mind |
  • | Then-Existing Mental, (motive, intent, plan) or physical/emotional|
  • | Emotional, or Physical feeling (pain, bodily health); |
  • | Condition - Hillmon Doctrine: Intent to do an act in the|
  • | future proves act was done; |
  • | - EXCLUDES memory/belief to prove past fact. |
  • | |
  • | FRE 803(4) - Made for—and reasonably pertinent to— |
  • | Statement for Medical medical diagnosis or treatment; |
  • | Diagnosis or Treatment - Describes medical history, symptoms, cause; |
  • | - General fault/liability attribution EXCLUDED|
  • | |
  • | FRE 803(5) - Witness once knew, but now lacks memory; |
  • | Recorded Recollection - Made/adopted when fresh in memory; accurate;|
  • | - Read into evidence; NOT exhibit unless |
  • | offered by adverse party. |
  • | |
  • | FRE 803(6) - Record of acts, events, conditions; |
  • | Business Records - Made at/near time by someone with knowledge;|
  • | - Kept in course of regularly conducted |
  • | business activity; regular practice; |
  • | - Palmer v. Hoffman: Litigation records out. |
  • | |
  • | FRE 803(8) - Public office records: (A) Office activities|
  • | Public Records (B) Matters observed under legal duty |
  • | (EXCLUDING police reports vs criminal D) |
  • | (C) Factual findings in civil/against gov. |
  • +-----------------------------------------------------------------------------+
  • Detailed Doctrines for Key FRE 803 Exceptions

Present Sense Impression (803(1)) vs. Excited Utterance (803(2)):

Present sense impressions require strict contemporaneity (during or seconds after the event) and need not involve a startling event (e.g., "Look, the traffic light is turning yellow").

Excited utterances require a startling event and that the declarant remains under the physiological stress of excitement ; they can occur minutes or even hours later if the emotional shock persists.

State of Mind and the Hillmon Doctrine (803(3)): Under Mutual Life Insurance Co. v. Hillmon (1892), a declarant's statement of then-existing intent (e.g., "I am going to Colorado with Walters next week") is admissible to prove that the declarant subsequently carried out that intent, and circumstantially that the third party acted in accordance with the declarant's plan.

Medical Diagnosis or Treatment (803(4)): Statements describing symptoms, past history, and the general cause of an injury are admissible if reasonably pertinent to diagnosis or treatment. Statements assigning fault (e.g., "I was hit by a red truck that ran the red light") are redacted to exclude the fault attribution ("I was hit by a truck"). Exception: In child abuse or domestic violence cases, identity of the abuser is often pertinent to medical diagnosis and safety planning.

Business Records (803(6)) & Palmer v. Hoffman : Records prepared primarily for litigation or anticipation of lawsuits lack the circumstantial guarantee of routine business reliability and are inadmissible ( Palmer v. Hoffman ). Double hearsay within business records must independently satisfy a hearsay exception or exclusion (FRE 805).

Public Records (803(8)) Police Report Restriction: In criminal cases, police reports, observations, and investigative findings cannot be introduced by the prosecution against the defendant under FRE 803(8). Furthermore, the prosecution cannot circumvent this restriction by offering the police report as a business record under FRE 803(6).

4. Sixth Amendment Confrontation Clause ( Crawford Doctrine)

Under the Sixth Amendment, "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Under Crawford v. Washington (2004), the Confrontation Clause imposes an independent constitutional bar that applies even if evidence satisfies a hearsay exception . +-----------------------------------------------------------------------------+

  • | CONFRONTATION CLAUSE THREE-PART TEST |
  • | |
  • | The Sixth Amendment Confrontation Clause BARS hearsay if: |
  • | 1. The proceeding is a CRIMINAL PROSECUTION; |
  • | 2. The evidence is offered AGAINST THE DEFENDANT; |
  • | 3. The statement is TESTIMONIAL; |
  • | 4. The declarant is UNAVAILABLE at trial; AND |
  • | 5. The defendant had NO PRIOR OPPORTUNITY FOR CROSS-EXAMINATION. |
  • +-----------------------------------------------------------------------------+
  • The Primary Purpose Test ( Davis / Bryant / Clark )

Whether an out-of-court statement is testimonial depends on the primary purpose of the interrogation or conversation under an objective assessment of the circumstances: +-----------------------------------------------------------------------------+

  • | TESTIMONIAL VS. NON-TESTIMONIAL ANALYSIS |
  • | |
  • | NON-TESTIMONIAL STATEMENTS (Admissible if Hearsay Exception Met): |
  • | - Primary purpose is to assist law enforcement in meeting an |
  • | ONGOING EMERGENCY (Davis v. Washington, Michigan v. Bryant). |
  • | - Informal, chaotic environment (e.g., initial 911 calls for help). |
  • | - Focus is on ending an immediate threat to life/safety. |
  • | |
  • | TESTIMONIAL STATEMENTS (Confrontation Clause BARS Unless Prior Cross-Exam)|
  • | - Primary purpose is to ESTABLISH OR PROVE PAST EVENTS potentially |
  • | relevant to later criminal prosecution (Davis, Crawford). |
  • | - Formal, structured settings (e.g., station-house interrogations, |
  • | sworn affidavits, structured police interviews after threat has ended). |
  • | - Forensic Laboratory Reports: Certificates of drug analysis or blood- |
  • | alcohol concentration created for trial (Melendez-Diaz, Bullcoming). |
  • +-----------------------------------------------------------------------------+
  • Forensic Certificates and Surrogate Testimony

Under Melendez-Diaz v. Massachusetts (2009) and Bullcoming v. New Mexico (2011), forensic lab certificates (e.g., chemical analysis of cocaine, blood-alcohol reports) are testimonial statements.

The prosecution cannot introduce forensic results through a "surrogate" supervisor who did not perform or observe the actual testing; the accused has the constitutional right to confront the analyst who performed the test.