Federal Rule 803: Exceptions to the Rule Against Hearsay

What is Federal Rule 803?

Article 8 of the Federal Rules of Evidence deals with hearsay evidence. Hearsay evidence consists of an out-of-court statement offered to prove the truth of what the statement asserts.

Historically, hearsay evidence has been frowned upon because its reliability is questionable at best. “I heard him say she stole the car” risks convincing a jury she stole the car without at all proving she did steal the car. Also, hearsay cannot be tested via cross-examination, because the actual speaker of the statement isn’t present to answer questions. As an attorney, I can ask you what you heard him say, but I cannot ask him how he knows she stole the car.

Prohibitions of hearsay have been part of US statutory law since 1898 when the Massachusetts Hearsay Statute laid out a hearsay rule and some exceptions. The general ban on hearsay, however, has been part of US common law since its inception, arising in English common law in the late 1600s.

Main Principles of Federal Rule of Evidence 803

Rule 803 lays out exceptions to the general rule against hearsay evidence. These exceptions apply “regardless of whether the declarant is available as a witness.”

Exceptions under Rule 803 are recognized as such because they are generally considered trustworthy evidence, despite their nature as hearsay. These “trustworthy exceptions” generally fall into two categories:

Res gestae

Exceptions like the present sense impression, excited utterance, and then-existing condition exceptions are known as “res gestae” exceptions (Latin for “things done”). It’s generally believed these forms of hearsay are reliable because they occur as an event occurs, leaving little or no time for dissembling.

Recorded events

Exceptions for recorded recollections and records of regularly conducted activities appear in Rule 803 because courts believe that records made at the time of an event, or made in the ordinary course of business or other activities, are likely to be reliable. Their reliability comes from their nearness in time to the event, their tendency to record basic facts in a uniform manner, or both.

Key Exceptions Under FRE Rule 803

Key exceptions under Rule 803 include:

Present Sense Impression

“A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it” is generally excepted from the hearsay rule. For example, a witness says “Wait, the light’s red!” just before a collision. The statement may be admitted under Rule 803 as a present sense impression.

Excited Utterance

“A statement related to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” For instance, the statement “You shot me!” made by a murder victim when the shot was fired might be admissible as an excited utterance.

Then-Existing Mental, Emotional, or Physical Condition

Here, a declarant verbalizes its existing state of mind, feelings, sense impressions, or physical condition. These statements are often used to show intent. This category often overlaps with the hearsay exclusion for statements of a party opponent when the declarant is a party to the case.

This category does not include statements of memory or belief in one’s memory unless the case relates to the terms or validity of a will.

Statement Made for Medical Diagnosis and Treatment

Statements made for medical diagnosis or treatment that are pertinent to that diagnosis or treatment are generally accepted under FRE 803(4). The underlying assumption is that people are incentivized to tell their doctors the truth when they need medical care.

Recorded Recollection

A record made when an event occurred, that accurately reflects the witness’s knowledge at the time, can be used to refresh the witness’s recollection in the present. This exception often applies in criminal cases when a police officer cannot recall the details of a case immediately but can do so upon reviewing their own police report.

Records (or Absence Thereof) of a Regularly Recorded Activity

Regularly-recorded business or other activities fall under an 803 exception if the record is made at or near the time of the event by someone with knowledge of it, is part of the regular course of business and a regular practice, and a records custodian can certify the record was made according to procedure. Opponents can challenge this exception by showing either the source or method of recordkeeping “indicate a lack of trustworthiness.”

Similarly, the absence of a record that would otherwise have been kept can be admitted. This may appear in cases to demonstrate that a certain transaction, appointment, etc. did not occur.

Public and Personal Records

Public records, religious records, and certificates of marriage, baptism, etc. also fall under FRE 803 in circumstances similar to those for records of regularly recorded activities.

FRE 803 covers other exceptions as well, such as commercial publications, learned treatises, and family records.

Unique Properties and Additional Considerations

Rule 803 is not the only Federal Rule of Evidence that deals with evidence that is admissible despite meeting the definition of hearsay. Rule 801, which defines hearsay, also lists several statements that are “not hearsay,” or are excluded from the hearsay rule.

Some of these exclusions seem to overlap with exceptions. The 803 exception for present sense impressions or then-existing conditions, for instance, may overlap with the 801 exclusion of statements of an opposing party, if a plaintiff or defendant’s statement at the time of an event is admitted. For instance, a defendant who posts to social media “feeling great about this awesome car I just stole” may see that statement admitted under FRE 801’s party-opponent exclusion, although it also meets the definition of a then-existing emotional condition under FRE 803.