Navigating the Hearsay Rule and Its Exceptions

Step One: Is It Hearsay?

Is It An Out-of-Court Statement?

Was it said by someone who is not present at trial? Remember "statements" include oral and written assertions as well as nonverbal conduct.

What Is It Being Offered to Prove?

A statement offered in evidence to prove the truth of the matter asserted in the statement is hearsay. Example: "Sam told me he saw Diane run out the door."

Step Two: Does An Exception Apply?

If you're dealing with an out-of-court statement offered to prove the truth of its content, that's hearsay. But, it might still be admissible.

Is It In Rule 803?

Some of the most common exceptions are:

• Present sense impression
• Excited utterance
• Then-existing state of mind 
• Records of regularly conducted business activity

Is The Declarant Unavailable?

Have they refused to testify? Are they exempted because of some type of privilege? Are they dead, or seriously ill?