Free tool · Evidence Law
Is It Hearsay?
Hearsay is an out-of-court statement offered to prove the truth of what it asserts, and it is inadmissible unless the rules say otherwise. To analyse it, ask in order: is it a statement; was it made out of court; is it offered for its truth; is it excluded from the definition (for example a party-opponent’s statement); and does an exception apply (such as an excited utterance, a business record or a statement against interest)? Answer the questions to see where the statement ends up.
Tool · Hearsay Analyzer
Hearsay, with no exclusion or exception identified: probably inadmissible (Rule 802).
A ‘statement’: There is an assertion, so keep going.
Made out of court: The declarant made the statement other than while testifying at this proceeding, so keep going.
Offered for its truth?: The statement is offered to prove that what it asserts is true. It is hearsay unless it is excluded from the definition or fits an exception.
Excluded from the definition?: No exclusion applies, so the statement is hearsay and is inadmissible unless an exception applies.
An exception: No exception has been identified. Check the Rule 803 exceptions (the declarant’s availability is immaterial) and the Rule 804 exceptions (the declarant must be unavailable).
- Look at the Rule 803 exceptions: present sense impression, excited utterance, state of mind, medical statements, recorded recollection, business and public records.
- Look at the Rule 804 exceptions if the declarant is unavailable.
- Consider a non-hearsay purpose, or the residual exception (Rule 807).
Asks the questions in the order the Federal Rules of Evidence ask them: is it a statement, made out of court, offered for its truth, excluded from the definition, or within an exception? State courts have their own rules, which often follow the federal ones. A teaching aid, not a prediction of how a judge would rule, and not legal advice. Runs in your browser; nothing is stored or sent.
How to use it
- Say whether the statement is an assertion and was made out of court.
- Say why it is offered: for its truth, or for another purpose such as its effect on the listener.
- Choose any exclusion or exception, and say whether the speaker is unavailable.
- Read each step and what to check next.
Common questions
What makes a statement hearsay?
It must be a statement, made out of court, and offered to prove the truth of what it asserts (Federal Rule of Evidence 801). If it is offered for another purpose, it is not hearsay.
What is the difference between Rule 803 and Rule 804 exceptions?
Rule 803 exceptions apply whether or not the speaker is available as a witness. Rule 804 exceptions apply only if the speaker is unavailable.
What is hearsay within hearsay?
A statement that contains another out-of-court statement. Each level needs its own exclusion or exception (Rule 805).
Learn the law behind the tool
This tool is part of our Evidence Law course, with lectures, concept maps, flashcards, interactive exercises and a capstone case. Evidence Law: Hearsay Basics.
More free law tools
General information, simplified, mainly on American law, not legal advice. States and countries differ, and real cases turn on facts that a tool cannot capture.