- In a probate dispute, one potential heir seeks to introduce the diary of the decedent. An entry dated a week before the decedent's death reads: "My nephew visited today. He told me that his mother, my sister, said she never intended for me to inherit the family home." The sister is also a potential heir and a party to the dispute. The sister objects to the diary entry.
Answer: The entry is inadmissible because it contains two levels of hearsay to which no exceptions apply.
This presents three levels of hearsay. Level 1: The diary entry. Level 2: The nephew's statement to the decedent. Level 3: The sister's statement to the nephew. The sister's statement is a statement by an opposing party (FRE 801(d)(2)(A)), so it is not hearsay. However, the nephew's statement to the decedent is an out-of-court statement offered to prove the sister made her statement. The nephew is not an agent authorized to speak for the sister. No exception applies to the nephew's statement. Furthermore, the diary entry itself is hearsay. While some statements in a diary may reflect a then-existing state of mind (FRE 803(3)), this entry is a recitation of past events and statements, not a reflection of the decedent's own state of mind. With no exceptions for the diary entry or the nephew's statement, the evidence is inadmissible.
- A defendant is being prosecuted for arson. The prosecution calls a firefighter to testify. The firefighter is prepared to testify that while battling the blaze, he heard another, unidentified firefighter yell, "The chief just radioed in that a witness saw the defendant running from the building!" The defense objects to this testimony.
Answer: The testimony is inadmissible because it contains multiple levels of hearsay for which exceptions do not apply.
This testimony contains three levels of hearsay. Level 1: The witness's statement in court. Level 2: The unidentified firefighter's statement. Level 3: The chief's statement. Level 4: The original witness's statement to the chief. For the testimony to be admissible, an exception must apply to each level. The unidentified firefighter's statement might be an excited utterance, but the chief's statement is relaying what a witness said. That witness's statement is classic hearsay offered for its truth (to identify the defendant). There is no applicable exception for the witness's statement to the chief or the chief's radio call. Therefore, the entire statement is inadmissible.
- A patient sued a doctor for negligence, claiming the doctor failed to inform her of the risks of a surgical procedure. The doctor seeks to admit a note from the patient's file, written by a nurse, which states: "I was present when the doctor explained the risks of infection and nerve damage to the patient. I heard the patient's husband say to her, 'Well dear, it sounds like you understand the risks.'" The patient objects to the inclusion of the husband's statement.
Answer: The husband's statement is inadmissible hearsay.
The nurse's note is a business record (FRE 803(6)). The issue is the hearsay within the record: the husband's statement. This statement is offered to prove the truth of the matter asserted—that the patient appeared to understand the risks. The husband has no business duty to report, so his statement is not part of the business record. It is not offered to show its effect on the patient, but rather as proof of her understanding. It is not an adoptive admission because the patient did not hear and adopt the statement; rather, the statement was directed at her. There is no indication of her response or silence in the face of an accusation. It does not qualify as a present sense impression or excited utterance. Therefore, the husband's statement is inadmissible hearsay.
- In a product liability action against a car manufacturer, the plaintiff introduces testimony from a former employee of the defendant. The employee testifies, "My supervisor wrote a memo to the vice president after our team investigated the accidents. The memo said, 'The test driver's report confirms that he told the engineers the brakes felt spongy during pre-production trials.'" The test driver is deceased. The manufacturer objects.
Answer: The testimony is admissible because the supervisor's memo and the test driver's statement are statements by an opposing party's employees concerning matters in the scope of their employment.
This testimony contains hearsay within hearsay. The outer layer is the supervisor's memo. The inner layer is the test driver's statement/report. Both statements are being offered against the employer, the defendant manufacturer. Under FRE 801(d)(2)(D), a statement is not hearsay if it is offered against an opposing party and was made by the party's employee on a matter within the scope of that relationship and while it existed. The test driver's statement about the brakes was within the scope of his employment. The supervisor's memo about the investigation was also within the scope of his employment. Since both statements qualify as non-hearsay statements by an opposing party's employees, the entire statement is admissible.
- At a preliminary hearing in a felony case, a witness testified for the prosecution and was subject to cross-examination by the defendant's counsel. The witness has since moved to another country and refuses to return. At trial, the prosecution offers a transcript of the witness's preliminary hearing testimony. In that testimony, the witness stated, "The victim, my friend, called me after he was attacked and cried, 'The defendant is the one who did this to me!'" The defense objects to the transcript.
Answer: The transcript is admissible as former testimony, and the victim's statement is admissible as an excited utterance.
This is hearsay within hearsay. The outer layer is the preliminary hearing testimony. Since the witness is unavailable and the defendant had an opportunity and similar motive to cross-examine at the hearing, the transcript is admissible as former testimony under FRE 804(b)(1). The Confrontation Clause is satisfied for the same reason. The inner layer is the victim's statement to the witness. The statement was made while the victim was crying shortly after the attack, placing it under the stress of a startling event. This qualifies it as an excited utterance under FRE 803(2). Because an exception applies to each level of hearsay, the entire portion of the transcript is admissible.
- A worker sued his employer for an injury caused by faulty scaffolding. The employer's attorney seeks to introduce a memorandum from the company's safety files. The memorandum, written by a site foreman, states: "Per my conversation with the supplier, the supplier confirmed that the worker's crew had been instructed on the weight limits of the scaffolding. The supplier said he keeps logs of all such trainings." The site foreman is testifying and has authenticated the memorandum.
Answer: The memorandum is inadmissible because the supplier's statement is hearsay not within an exception.
This is a classic hearsay-within-hearsay problem in the context of a business record. The memorandum itself, if made and kept in the ordinary course of business, may qualify as a business record under FRE 803(6). However, it contains a statement from an outsider, the supplier. The supplier has no business duty to the worker's company to make accurate reports for their records. The supplier's statement is therefore hearsay. No exception applies to the supplier's statement. It is offered for its truth (that the crew was trained). Therefore, the portion of the memorandum containing the supplier's statement is inadmissible.
- A woman sued a bus company after being injured on a bus. At trial, she seeks to introduce a letter written by her sister, who has since died. The letter, sent the day after the incident, reads: "I'm so sorry about your injury. I remember you called me right from the bus, screaming 'My arm is broken! The driver slammed the doors on me!' It was terrifying to hear." The bus company objects to the introduction of the letter.
Answer: The letter is inadmissible because although the woman's statement was an excited utterance, the letter itself is hearsay not within an exception.
The evidence contains two layers of hearsay. The inner layer is the woman's statement on the phone ('My arm is broken! The driver slammed the doors on me!'). This statement, made while under the stress of the event, qualifies as an excited utterance under FRE 803(2). The outer layer is the sister's letter, which is an out-of-court statement offered to prove the woman made the excited utterance. The letter itself is hearsay. It is not a recorded recollection because the sister is not testifying. It is not former testimony. No other exception applies to the letter itself. Therefore, even though the inner statement is subject to an exception, the outer hearsay statement makes the evidence inadmissible.
- In a conspiracy trial, an undercover officer testifies that he recorded a conversation with a co-conspirator. On the recording, the co-conspirator says: "Don't worry about the shipment. The boss called me this morning and said, 'The package is secure.'" The boss is the defendant on trial. The co-conspirator who made the statement is now a fugitive and unavailable. The defendant objects to the officer's testimony about the conversation.
Answer: The testimony is admissible because both the co-conspirator's and the boss's statements were made by co-conspirators in furtherance of the conspiracy.
This testimony contains two out-of-court statements. The inner statement is the boss's (defendant's) statement. The outer statement is the co-conspirator's statement to the officer. Under FRE 801(d)(2)(E), a statement is not hearsay if it is made by a party's co-conspirator during and in furtherance of the conspiracy. Here, the defendant is 'the boss'. His statement, 'The package is secure,' made to a co-conspirator, was in furtherance of the conspiracy. The co-conspirator's act of relaying this information to another member (the undercover officer, whom he believed to be a member) to reassure him was also in furtherance of the conspiracy. Because both statements fall under the co-conspirator exclusion from hearsay, the entire statement is admissible.
- In a medical malpractice suit, the plaintiff seeks to introduce a hospital record entry made by a nurse. The entry reads: "Patient was admitted complaining of severe abdominal pain. Patient's husband, who was in the room, stated that the patient told him yesterday, 'The doctor must have left a sponge in me during surgery.'" The patient is the plaintiff in the case. The defendant-doctor objects to the portion of the note containing the husband's statement.
Answer: The statement is inadmissible hearsay because it contains a statement from the patient that does not fall under an exception.
This is double hearsay. The first level is the hospital record itself, which is a business record (FRE 803(6)). The second level is the husband's statement to the nurse. The third level is the patient's statement to the husband. For the entry to be admissible, each level of hearsay needs an exception. The hospital record is a business record. However, the husband's statement to the nurse is hearsay, as he has no business duty to report. Even if an exception applied to the husband's statement, the patient's statement to her husband ('The doctor must have left a sponge in me') was made the previous day and not for the purpose of medical diagnosis. It is a simple out-of-court assertion offered for its truth. No exception applies to the patient's statement to her husband, so the entire layered statement is inadmissible.
- You are defending a client charged with bank robbery. The prosecution's key evidence is a note found at the scene. To connect the note to your client, the prosecution offers a page from a diary belonging to your client's ex-girlfriend. The entry reads: "My friend who works at the bank told me she recognized the handwriting on the robber's note. She said, 'I'm certain it was my old boyfriend's writing,' referring to the defendant." The ex-girlfriend will testify and authenticate the diary. The friend is unavailable.
Answer: The entry is inadmissible because both the diary entry and the friend's statement are hearsay.
This evidence contains multiple levels of hearsay. The first level is the diary entry itself. The second level is the friend's statement to the ex-girlfriend. The diary entry is an out-of-court statement offered for its truth. It is not a recorded recollection under FRE 803(5) because the witness (ex-girlfriend) did not have personal knowledge of the underlying event (the friend's recognition). The friend's statement is also hearsay offered for its truth. While FRE 801(d)(1)(C) provides a non-hearsay definition for statements of identification, it applies to identifications made after perceiving the person. It generally does not apply to handwriting identification in this context. Since no exception applies to either the diary entry or the friend's statement, the evidence is inadmissible.
- In a personal injury trial following a warehouse accident, the plaintiff offers into evidence a properly authenticated accident report prepared by the warehouse's safety officer. The report contains the officer's own observations and concludes with the following entry: "An employee, who was working nearby, told me that he heard the victim shout, 'The safety latch is broken!' moments before the machine activated." The employee who made the statement is on an extended leave of absence overseas and is unavailable to testify.
Answer: The entire entry is admissible because the report is a business record and the victim's statement is an excited utterance.
This involves hearsay within hearsay under FRE 805. The accident report is admissible as a business record under FRE 803(6) if made in the regular course of business. Within that report, the employee's statement to the officer qualifies as part of the business record because the employee had a business duty to report safety incidents. The victim's quoted statement 'The safety latch is broken!' made moments before the accident qualifies as an excited utterance under FRE 803(2). Since both levels of hearsay fall within exceptions, the entire entry is admissible.
- You represent the defendant in a breach of contract action. The plaintiff, a corporation, seeks to introduce an internal email written by one of its own managers, who has since left the company. The email states: "We need to document this. I just got off the phone with our supplier's representative, and she admitted that they shipped the wrong grade of materials to the defendant." The supplier is not a party to the lawsuit.
Answer: The email is inadmissible because the supplier representative's statement is hearsay not covered by an exception.
This is hearsay within hearsay. The email itself is the outer layer of hearsay. The statement from the supplier's representative is the inner layer. The plaintiff offers the email, which is its own statement, so it's not a statement of an opposing party. It might be a business record (FRE 803(6)) if it was made and kept in the course of regularly conducted business activity. Assuming it is, we must analyze the inner hearsay: the supplier representative's admission. This statement is offered for its truth. It is not a statement by an opposing party, as the supplier is not a party. It is not a statement against the representative's interest unless it would subject her to liability. Simply admitting a mistake on behalf of her company is unlikely to meet that standard. Since no exception applies to the inner statement, the entire entry is inadmissible.
- In a civil commitment hearing, a hospital seeks to prove a patient is a danger to others. The hospital offers the patient's medical chart, which contains a note by a psychiatrist. The note reads: "Patient's mother reported on the phone today that the patient told her last night, 'I'm going to hurt the first person I see when I get out of here.'" The patient's attorney objects.
Answer: The note is admissible because the patient's statement shows intent, and the mother's statement is for the purpose of medical diagnosis.
This involves three layers of statements within the medical chart. Layer 1: The medical chart (business record, FRE 803(6)). Layer 2: The mother's statement to the psychiatrist. Layer 3: The patient's statement to the mother. The chart is a business record. The patient's statement to his mother, 'I'm going to hurt...', is a statement of intent, admissible under the state-of-mind exception, FRE 803(3). It is also a statement by a party opponent (FRE 801(d)(2)(A)). The crucial step is the mother's statement to the psychiatrist. A statement made by a family member on behalf of a patient for the purpose of getting that patient medical diagnosis or treatment can fall under FRE 803(4). The mother's report of the threat is clearly for the purpose of diagnosis and treatment of the patient's dangerousness. Thus, an exception or exclusion applies at each level.
- You are representing a client in a wrongful death action against a trucking company. The plaintiff calls a witness who was a close friend of the decedent. The witness is prepared to testify, "The decedent called me from the hospital right after the accident and said, 'I'm in so much pain. The doctor just told me my injuries are fatal and I only have hours to live.'" The decedent died the next day. You object to this testimony.
Answer: The testimony is admissible because the doctor's statement is for medical diagnosis and the decedent's statement shows then-existing state of mind.
This fact pattern presents hearsay within hearsay. The decedent's statement to the friend is the first level of hearsay. The doctor's statement to the decedent is the second level. The doctor's statement ('your injuries are fatal') is not offered to prove the injuries were, in fact, fatal. It is offered to show its effect on the listener—the decedent—to establish that the decedent believed his death was imminent. Used for this purpose, it is not hearsay. The decedent's subsequent statement to his friend ('I'm in so much pain') is admissible as a statement of then-existing physical condition under FRE 803(3). His repetition of the doctor's diagnosis shows his state of mind. Therefore, the statement is admissible because the inner statement is not offered for its truth and the outer statement falls under the state of mind exception.
- At a child custody hearing, the father's attorney calls the child's therapist to testify. The therapist states, "During our last session, the child, who is seven, told me that his mother said to him, 'Don't tell your father we are moving to another state.'" The mother's attorney objects on hearsay grounds.
Answer: The testimony is admissible because the mother's statement is a statement by an opposing party and the child's statement was for medical diagnosis.
This testimony involves two levels of out-of-court statements. The inner level is the mother's statement to the child. The outer level is the child's statement to the therapist. The mother is a party to the custody hearing, so her statement, 'Don't tell your father we are moving,' is being offered against her. It qualifies as a statement by an opposing party under FRE 801(d)(2)(A) and is therefore not hearsay. The child's statement to the therapist, relaying the mother's statement, was made in the course of therapy. Statements made for the purpose of medical diagnosis or treatment are an exception to the hearsay rule under FRE 803(4), and this applies to statements made to a psychiatrist or therapist. Thus, with an exclusion for the inner statement and an exception for the outer one, the testimony is admissible.
- At a murder trial, the prosecution seeks to introduce a police report. The report contains a transcription of a 911 call from a neighbor. The neighbor stated on the call, "I'm watching from my window right now. The man in the blue coat is trying to break into the house next door." The man in the blue coat was later identified as the defendant. The neighbor died before trial. The 911 operator who took the call is testifying.
Answer: The report is inadmissible hearsay, but the operator could testify to the statement as a present sense impression.
This involves hearsay within hearsay. Under FRE 803(8)(A)(ii), law enforcement observations are inadmissible against defendants in criminal cases, so the police report is inadmissible. However, the 911 operator can testify directly about the neighbor's statement, which qualifies as a present sense impression under FRE 803(1) because the neighbor was describing events as they occurred. Emergency 911 calls are generally non-testimonial, avoiding Confrontation Clause issues.
- In a civil trial for battery, the plaintiff's attorney calls a witness to the stand. The witness testifies, "I was standing next to the defendant's best friend, who was watching the fight. The friend pointed at the plaintiff on the ground and said to me, 'The defendant just told me he planned to do that all week.'" The defendant objects.
Answer: The testimony is inadmissible because the friend's statement to the witness is hearsay not covered by an exception.
This is hearsay within hearsay. The defendant's statement to his friend ('I planned to do that all week') is the inner layer. The friend's statement to the witness is the outer layer. The defendant's statement is a statement by an opposing party under FRE 801(d)(2)(A) and is therefore not hearsay. However, the friend's statement relaying this information to the witness is an out-of-court statement offered to prove the truth of the matter asserted (that the defendant made the statement). The friend's statement does not qualify as an excited utterance or present sense impression, as there are no facts to support the required elements of spontaneity or excitement. Since the outer layer of hearsay does not fall within an exception, the entire testimony is inadmissible.
- A man is on trial for the murder of his business partner. The prosecution calls the victim's spouse to the stand. The spouse testifies, "A week before he died, my husband came home very agitated and told me, 'I just found out my partner has been embezzling. Our accountant showed me records proving it.'" The defense objects to the testimony about what the accountant allegedly showed the victim.
Answer: The statement is admissible only to show that the victim was agitated, but the content of what the accountant showed him is inadmissible hearsay.
This statement contains multiple layers. The victim's statement to his spouse is the first layer of hearsay. The implicit statement by the accountant (via the records) is the second layer. The victim's statement, 'I just found out my partner has been embezzling,' might be offered to show his state of mind (fear, anger) towards the defendant, which could be relevant to motive. However, the part of the statement that functions as a narrative of a past event—'Our accountant showed me records proving it'—is offered to prove the truth of the matter asserted: that there were records proving embezzlement. This is hearsay. The accountant's implicit assertion through the records is also hearsay. No exception applies to this part of the statement. Therefore, while the part of the statement showing the victim's agitation might be admissible under FRE 803(3), the factual basis for it is inadmissible hearsay.
- At trial for insurance fraud, the insurance company introduces the deposition testimony of its former investigator, who is now deceased. In the deposition, the investigator testified, "The defendant's neighbor told me that she saw the defendant removing valuable antiques from his house the day before the fire." The defendant's attorney was present at the deposition and cross-examined the investigator. The defendant objects to the admission of this portion of the deposition.
Answer: Inadmissible, because the neighbor's statement within the former testimony is hearsay not within an exception.
This is hearsay within hearsay. The outer layer is the investigator's deposition testimony. Since the investigator is unavailable (deceased) and the defendant had an opportunity and similar motive to cross-examine him at the deposition, the deposition itself qualifies as former testimony under FRE 804(b)(1). However, the inner layer is the neighbor's out-of-court statement to the investigator. This statement is offered to prove the truth of the matter asserted (that the defendant was removing valuables). No hearsay exception applies to the neighbor's statement. It is not an excited utterance or present sense impression. Therefore, even though the deposition testimony is admissible, the hearsay contained within it is not.
- A man was prosecuted for passing counterfeit bills. The prosecution introduced a certified copy of a report from a Secret Service agent who investigated the case but has since died. The report states: "The cashier at the convenience store told me that the man who gave her the bill said, 'My boss gave me this hundred to buy supplies.'" The defendant is the man who passed the bill. The defendant objects to the report.
Answer: The report is inadmissible against a criminal defendant, and the cashier's statement is also hearsay.
This involves hearsay within hearsay within hearsay. The Secret Service report is the first level, the cashier's statement is the second, and the defendant's statement is the third. While the defendant's statement ('My boss gave me this...') would normally be admissible as a statement by an opposing party under FRE 801(d)(2)(A), the entire report is inadmissible against the defendant in a criminal case. Under FRE 803(8)(A)(ii), public records containing matters observed by law enforcement personnel are inadmissible against the defendant in criminal cases. Additionally, the cashier's statement to the agent is hearsay for which no exception applies. The cashier has no business duty to report to law enforcement and no other exception covers her statement.
