Hearsay Exception

Hearsay Exception

Hearsay Exception

The rules recognize numerous exceptions grouped by whether the declarant's availability matters. Exceptions available regardless of availability include business records, excited utterances, present sense impressions, and statements for medical diagnosis or treatment. Others, such as statements against interest and former testimony, require the declarant to be unavailable.

A residual exception permits admission of otherwise excluded statements with equivalent guarantees of trustworthiness.

Alternative Names:

Exception to the Hearsay Rule

Why it Matters?

Nearly all documentary evidence in litigation enters through an exception, most often the business records rule. Knowing which exception applies determines what foundation must be laid, whether a custodian affidavit will suffice, and whether the declarant must be produced. Failing to identify the exception in advance is a common cause of otherwise avoidable exclusion at trial.

Frequently asked questions

Which hearsay exception is used most in civil litigation?

Which hearsay exception is used most in civil litigation?

The business records exception, which admits records made and kept in the regular course of business and covers most documentary evidence.

Do all exceptions require the declarant to be unavailable?

Do all exceptions require the declarant to be unavailable?

No. Most, including business records and excited utterances, apply regardless of availability. A smaller set under Rule 804 requires unavailability.