The Two-Track Analysis
First decide whether the evidence is hearsay under Rule 801 and whether Rule 801(d) removes it from the hearsay definition. If it remains hearsay, analyze the exceptions in order. Then, in a criminal prosecution, run a separate Sixth Amendment Confrontation Clause analysis.
Evidence-rule admissibility does not itself satisfy confrontation. A statement can fit a hearsay exception yet still be constitutionally barred.
- Rule 803: Does an exception apply regardless of availability?
- Rule 804: If needed, is the declarant unavailable under Rule 804(a), and does a listed exception fit?
- Rule 805: If statements are layered, does every layer have its own basis?
- Rule 807: Only if Rules 803 and 804 do not fit, are trustworthiness, superior probative value, and notice satisfied?
- Confrontation: In a criminal case, is prosecution evidence a testimonial statement admitted for its truth against the accused?
Rule 803: Availability Is Immaterial
- 803(1) Present Sense Impression: describes or explains an event or condition while or immediately after the declarant perceived it. Excitement is not required; contemporaneity is.
- 803(2) Excited Utterance: relates to a startling event or condition and is made while the declarant remains under the stress it caused. No fixed stopwatch controls; continuing stress does.
- 803(3) Then-Existing Condition: covers then-existing motive, intent, plan, emotion, sensation, or health. It excludes memory or belief used to prove the remembered fact, except as to a will's validity or terms.
- 803(4) Medical Diagnosis or Treatment: the statement must be made for—and reasonably pertinent to—diagnosis or treatment and describe medical history, symptoms, inception, or general cause. Fault-identifying details are not ordinarily pertinent in routine treatment, though context can matter.
Recorded Recollection, Business Records & Rule 805
- 803(5) Recorded Recollection: the witness once knew, now cannot recall well enough to testify fully and accurately, and made or adopted an accurate record while the matter was fresh. If admitted, it may be read into evidence; only the adverse party may offer it as an exhibit.
- 803(6) Regularly Conducted Activity: requires a timely record made by—or from information transmitted by—someone with knowledge, kept and made as a regular practice, proved by a qualified witness or permitted certification, unless the opponent shows a lack of trustworthiness.
- Rule 805: every hearsay layer needs a valid basis. A business record does not automatically cure an outsider's embedded assertion.
- 803(8) Public Records: scope and criminal-case restrictions matter; law-enforcement observations are not freely admissible against a criminal defendant.
- 803(18) Learned Treatise: if established as reliable and relied on or called to an expert's attention, a statement may be read into evidence but the publication itself is not received as an exhibit.
Rule 804(a): What Counts as Unavailable?
Rule 804(b)'s exceptions require a declarant who is unavailable under Rule 804(a). The listed grounds are:
- a court ruling that privilege exempts testimony about the subject;
- refusal to testify despite a court order;
- testimony that the declarant does not remember the subject;
- death or then-existing infirmity, physical illness, or mental illness preventing presence or testimony; or
- absence despite process or other reasonable means. For (b)(1) and (b)(6), the proponent must be unable to procure attendance; for (b)(2), (3), and (4), attendance or testimony.
The proponent cannot invoke Rule 804(a) after procuring or wrongfully causing unavailability in order to prevent the declarant from attending or testifying.
Rule 804(b): The High-Yield Exceptions
- 804(b)(1) Former Testimony: testimony at a trial, hearing, or lawful deposition, now offered against a party who had an opportunity and similar motive to develop it. In a civil case, a qualifying predecessor in interest can suffice.
- 804(b)(2) Imminent Death: only in a homicide prosecution or civil case; the declarant must believe death is imminent, and the statement must concern its cause or circumstances. Rule 804(a) unavailability is still required, but actual death is not the only possible ground.
- 804(b)(3) Against Interest: viewed in context, a reasonable person would have spoken only if true because the statement was sufficiently adverse to proprietary, pecuniary, claim, civil-liability, or criminal-liability interests. In a criminal case, a criminal-liability statement also must have corroborating circumstances clearly indicating trustworthiness.
- 804(b)(6) Forfeiture by Wrongdoing: offered against a party who wrongfully caused—or acquiesced in wrongfully causing—the declarant's unavailability and intended that result. Giles v. California likewise requires conduct designed to prevent testimony for constitutional forfeiture.
Rule 807: Residual Exception—Current Text
If a statement is not admissible under Rule 803 or 804, Rule 807 can apply only when both substantive conditions and notice are met:
- sufficient guarantees of trustworthiness after considering the totality of the circumstances and any corroborating evidence;
- more probative on the offered point than other evidence obtainable through reasonable efforts; and
- reasonable notice that identifies the statement's substance and declarant so the opponent has a fair opportunity to meet it. Notice must be written before trial or hearing, unless the court for good cause excuses earlier notice and permits notice in any form during the proceeding.
Correction: the post-2019 rule does not list a separate “general purposes of the rules and interests of justice” element. Do not import that superseded formulation into the current test.
Sixth Amendment Confrontation Clause
Core rule: in a criminal prosecution, the government generally may not introduce a testimonial statement of an absent witness for its truth against the accused unless the witness is unavailable and the accused had a prior opportunity to cross-examine. Reliability alone is not a substitute.
Testimonial / primary purpose: ask objectively whether the statement's primary purpose was to create evidence for a later criminal prosecution. Statements aimed at resolving an ongoing emergency are usually nontestimonial; a structured account of past events for investigation is more likely testimonial.
Forensic evidence: certificates and analyst assertions made for prosecution can be testimonial. The prosecution ordinarily cannot substitute a witness who neither performed nor observed the critical analysis when it offers the absent analyst's assertions.
Smith v. Arizona (2024): an expert conveys an absent analyst's statement for its truth when that statement supports the opinion only if true. Calling it “basis” testimony does not change that. The Court did not decide whether the particular statements in Smith were testimonial.
Machine output: raw output generated without a human assertion may fall outside hearsay and confrontation, but human observations, interpretations, labels, certifications, and chain-of-custody assertions require separate analysis.
Forfeiture: a defendant may lose confrontation protection by wrongdoing intended to prevent testimony. Merely causing absence without that purpose is not enough under Giles.
Common Exceptions & Confrontation Traps
• Do not require excitement for present sense impression—or immediacy for excited utterance.
• Do not use Rule 803(3) to prove a remembered past event.
• Do not hand the jury a recorded recollection or learned treatise merely because its contents may be read.
• Do not let a business record cure an outsider's embedded statement; Rule 805 applies layer by layer.
• Do not use a Rule 804 exception before proving a specific Rule 804(a) ground.
• Do not treat every self-inculpatory narrative as wholly against interest; evaluate the particular statement in context.
• In a criminal case, corroboration for a criminal-liability statement under 804(b)(3) is mandatory.
• Do not invoke Rule 807 without current-form notice; the old “interests of justice” wording is not a current element.
• Do not merge hearsay and confrontation. A hearsay exception can coexist with a constitutional bar.
• Do not assume all police interactions are testimonial; focus on the objective primary purpose and any ongoing emergency.
• Do not treat an expert's “basis” label as a constitutional safe harbor after Smith.
• Do not find forfeiture merely because a defendant caused absence; intent to prevent testimony matters.
Study aid, not legal advice. Rule text checked against the official Federal Rules of Evidence amended through December 1, 2025—the current official compilation available in 2026—and current Supreme Court authority through 2026. Jurisdiction-specific law may vary.
Official FRE PDF ↗
Smith v. Arizona ↗
Giles v. California ↗