817057
Hearsay AND Exclusions
- Is the statement one made by a declarant outside of the trial or
hearing and offered in evidence to prove the truth of the matter
asserted? 801(c)
- No? Admissible, unless
some other rule prohibits its
use
- Yes? The statement is hearsay; consider possible bases for
admissibility
- Is there a non-hearsay purpose?
- No? Consider
exceptions under
803 and 804
- Yes? Permitted for its non-hearsay purpose; but not
permitted to prove the truth of the matter asserted,
unless an exception or exclusion applies; also consider
403, or whether some other rule would bar its use
- Yes? Does a Hearsay EXCLUSION apply?
- 1. Prior Statement by witness: Is the
statement a prior statement by the
witness who is presently testifying and
who is now subject to cross
concerning the statement? 801(d)(1)
- Yes? Is the prior
statement inconsistent
with the declarant's
testimony?
- Yes? Was the prior
statement given under
oath? 801 (d)(1)(a)
- Yes?
Admissible as
proof of the
truth of the
matter
asserted 801
(d)(1)(A)
- No. Admissible for impeachment purposes
only (613) (NOTE: Extrinsic evidence of a
prior inconsistent statement is admissible
only if the witness is afforded an opportunity
to explain or deny the statement and the
opposite party is afforded an opportunity to
interrogate the witness thereon, or the
interests of justice otherwise require.) 613(b)
- Yes?
Admissible as
proof of the
truth of the
matter
asserted 801
(d)(1)(A)
- No? Is the statement
consistent with the
declarant's testimony and is
it being offered to rebut a
charge of recent
fabrication? 801(d)(1)(B)
- Yes? Admissible.
- No? Is the statement one that
identifies a person as someone the
declarant perceived earlier?
801(d)(1)(C)
- Yes? Admissible
- No? Inadmissible, unless
another exclusion or exception
to the hearsay rule applies
- Yes? Admissible
- Yes? Admissible.
- Yes? Was the prior
statement given under
oath? 801 (d)(1)(a)
- No? Inadmissible, unless
another exception or
exclusion to the hearsay rule
applies
- Yes? Is the prior
statement inconsistent
with the declarant's
testimony?
- 2. Admission by Party
Opponent: Is the statement
being offered against a
party? 801 (d) (2)
- No? Inamissible,
unless another
exception or exclusion
to the hearsay rule
applies
- Yes? Is the statement the party's
own statement, in either an
individual or representative
capacity? 801(d)(2)(A)
- Yes? Admissible
- No? Is the statement one
that the party has adopted?
801 (d)(2)(B)
- Yes? Admissible
- No? is the statement made by a
person authorized by the party to
make a statement concerning the
subject? (C), OR one made by the
party's agent or servant concerning a
matter within the scope of the agency
or employment, made during the
existence of the relationship? (D), OR,
one made by a co-conspirator of a
party during the course of and in
furtherance of the conspiracy? (E)
NOTE: In establishing authority,
agency or employment relationship, or
existence of conspiracy, the contents
of the statement shall be considered
but are not alone sufficient to establish
these preliminary facts. 801(d)(2)
- Yes? Admissible
- Yes? Admissible
- No? Inamissible,
unless another
exception or exclusion
to the hearsay rule
applies
- 1. Prior Statement by witness: Is the
statement a prior statement by the
witness who is presently testifying and
who is now subject to cross
concerning the statement? 801(d)(1)
- No? Consider
exceptions under
803 and 804
- Is there a non-hearsay purpose?
- No? Admissible, unless
some other rule prohibits its
use
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