Hearsay flowchart: FRE 801 to 807 and the Crawford confrontation check

Is it hearsay?

1. Analyze an out-of-court statement for hearsay

   For law students and trial lawyers: run a statement through FRE 801 to 807 and, in criminal cases, the Crawford confrontation check.

   US Federal Rules of Evidence, as published by Cornell LII (read October 2026). State evidence codes often follow the FRE but differ in detail.

   Hearsay is not admissible unless a federal statute, the FRE or another Supreme Court rule provides otherwise (FRE 802).

2. Is it a person's assertion?

   A statement is a person's oral or written assertion, or nonverbal conduct the person intended as an assertion (FRE 801(a)). Conduct counts only when it was meant to communicate, such as a nod in answer to a question.

   • No: go to step 3, Not hearsay. It isn't a statement
   • Yes: go to step 4, Was it made while testifying at this trial or hearing?
3. Not hearsay. It isn't a statement

   Nonassertive conduct and things that aren't a person's assertions fall outside the hearsay rule.

   Check: it still has to be relevant and authenticated.

4. Was it made while testifying at this trial or hearing?
   • Yes: go to step 5, Not hearsay. It is live testimony
   • No: go to step 6, Is it offered to prove that what it says is true?
5. Not hearsay. It is live testimony

   Hearsay only covers statements the declarant does not make while testifying at the current trial or hearing (FRE 801(c)(1)).

6. Is it offered to prove that what it says is true?

   The test is the purpose. The same words can be hearsay for one purpose and not for another.

   • No: go to step 7, Not hearsay. Offered for a non-truth purpose
   • Yes: go to step 8, Who made the statement, and who offers it?
7. Not hearsay. Offered for a non-truth purpose

   Common non-truth purposes: effect on the listener (notice, fear, a reason to act), words with legal effect such as the words of a contract offer, and impeachment with a prior inconsistent statement.

   Check: name the purpose out loud and ask for a limiting instruction. The jury may use it only for that purpose.

Exclusions under FRE 801(d)

8. Who made the statement, and who offers it?

   It is hearsay unless an exclusion or exception fits. If the statement contains another statement, each layer needs its own (FRE 805).

   • The opposing party: go to step 9, Which kind of party statement?
   • A witness at this trial: go to step 14, Which kind of prior statement is it?
   • Someone else: go to step 18, Does a Rule 803 exception fit?
9. Which kind of party statement?

   FRE 801(d)(2) covers statements offered against a party. These are defined as not hearsay.

   Since December 2024, if a party's claim, defense or liability comes directly from a declarant or the declarant's principal, a statement admissible against the declarant is also admissible against that party.

   • Party's own words: go to step 10, Not hearsay. Opposing party's own statement
   • Adopted or authorized: go to step 11, Not hearsay. Adopted or authorized statement
   • Employee or agent: go to step 12, Not hearsay. Agent's statement within scope
   • Co-conspirator: go to step 13, Not hearsay. Co-conspirator statement
   • None of these: go to step 18, Does a Rule 803 exception fit?
10. Not hearsay. Opposing party's own statement

    A statement the party made in an individual or representative capacity (FRE 801(d)(2)(A)).

    Check: it must be offered against that party, not by them.

11. Not hearsay. Adopted or authorized statement

    A statement the party showed it believed true, or made by a person the party authorized to speak on the subject (FRE 801(d)(2)(B) and (C)).

    Check: the statement alone can't establish the authority. You need other evidence too.

12. Not hearsay. Agent's statement within scope

    Made by the party's agent or employee on a matter within the scope of that relationship, while it existed (FRE 801(d)(2)(D)).

    Check: prove the relationship and its scope with more than the statement itself.

13. Not hearsay. Co-conspirator statement

    Made by the party's coconspirator during and in furtherance of the conspiracy (FRE 801(d)(2)(E)).

    Check: the statement alone can't prove the conspiracy or the party's role in it.

14. Which kind of prior statement is it?

    FRE 801(d)(1) only applies when the declarant testifies now and is subject to cross-examination about the prior statement. If not, go to the exceptions.

    • Inconsistent, under oath: go to step 15, Not hearsay. Prior inconsistent statement
    • Consistent: go to step 16, Not hearsay. Prior consistent statement
    • Identification: go to step 17, Not hearsay. Prior identification
    • None of these: go to step 18, Does a Rule 803 exception fit?
15. Not hearsay. Prior inconsistent statement

    Inconsistent with the trial testimony and given under penalty of perjury at a trial, hearing, other proceeding or deposition (FRE 801(d)(1)(A)).

    Check: an unsworn inconsistent statement can still be used to impeach, but not as proof of its contents.

16. Not hearsay. Prior consistent statement

    Offered to rebut a charge of recent fabrication or improper influence or motive, or to rehabilitate the witness's credibility (FRE 801(d)(1)(B)).

    Check: show the attack on credibility it answers.

17. Not hearsay. Prior identification

    Identifies a person as someone the declarant perceived earlier, such as at a lineup (FRE 801(d)(1)(C)).

Exceptions

18. Does a Rule 803 exception fit?

    Rule 803 exceptions apply whether or not the declarant is available as a witness. There are 23 of them.

    • Spontaneous statement: go to step 19, Which kind of spontaneous statement?
    • For medical care: go to step 23, Medical diagnosis exception applies
    • A record: go to step 24, Which kind of record?
    • Another listed exception: go to step 27, Another Rule 803 exception applies
    • None: go to step 28, Is the declarant unavailable under FRE 804(a)?
19. Which kind of spontaneous statement?
    • Describing an event: go to step 20, Present sense impression applies
    • Under stress: go to step 21, Excited utterance applies
    • State of mind or body: go to step 22, Then-existing condition applies
20. Present sense impression applies

    Describes or explains an event or condition, made while or immediately after the declarant perceived it (FRE 803(1)).

    Then go to step 37, Is it offered against the accused in a criminal case?

21. Excited utterance applies

    Relates to a startling event, made while the declarant was under the stress of excitement it caused (FRE 803(2)).

    Then go to step 37, Is it offered against the accused in a criminal case?

22. Then-existing condition applies

    The declarant's then-existing state of mind (motive, intent, plan) or emotional, sensory or physical condition (FRE 803(3)).

    It does not cover a statement of memory or belief offered to prove the fact remembered, except about the declarant's will.

    Then go to step 37, Is it offered against the accused in a criminal case?

23. Medical diagnosis exception applies

    Made for, and reasonably pertinent to, medical diagnosis or treatment. Covers history, symptoms and their general cause (FRE 803(4)).

    Then go to step 37, Is it offered against the accused in a criminal case?

24. Which kind of record?
    • Business record: go to step 25, Business records exception applies
    • Public record: go to step 26, Public records exception applies
25. Business records exception applies

    Made at or near the time by someone with knowledge, kept in a regularly conducted activity, as a regular practice, shown by a custodian, qualified witness or certification (FRE 803(6)).

    The opponent can defeat it by showing a lack of trustworthiness.

    Then go to step 37, Is it offered against the accused in a criminal case?

26. Public records exception applies

    A public office's record of its activities, matters observed under a legal duty, or factual findings from a legally authorized investigation (FRE 803(8)).

    In a criminal case, it excludes matters observed by law-enforcement personnel, and findings can only be used against the government.

    Then go to step 37, Is it offered against the accused in a criminal case?

27. Another Rule 803 exception applies

    Others include recorded recollection, market reports, learned treatises, ancient documents, family records, judgments of previous conviction and reputation evidence.

    Check: a recorded recollection (FRE 803(5)) is read into evidence and becomes an exhibit only if the adverse party offers it. Learned treatise statements (FRE 803(18)) are read in, never received as exhibits.

    Then go to step 37, Is it offered against the accused in a criminal case?

28. Is the declarant unavailable under FRE 804(a)?

    Unavailable means: privilege applies, refuses despite a court order, testifies to not remembering, death or illness, or absent despite reasonable efforts.

    Not unavailable if the side offering the statement procured or wrongfully caused the absence to keep the declarant from attending or testifying.

    • Yes: go to step 29, Which Rule 804(b) exception fits?
    • No: go to step 34, Does the residual exception in FRE 807 apply?
29. Which Rule 804(b) exception fits?
    • Former testimony: go to step 30, Former testimony exception applies
    • Dying declaration: go to step 31, Dying declaration exception applies
    • Against interest: go to step 32, Statement against interest applies
    • Wrongdoing or family: go to step 33, Another Rule 804 exception applies
    • None of these: go to step 34, Does the residual exception in FRE 807 apply?
30. Former testimony exception applies

    Testimony at a trial, hearing or deposition, offered against a party who had an opportunity and similar motive to examine the witness then (FRE 804(b)(1)).

    Then go to step 37, Is it offered against the accused in a criminal case?

31. Dying declaration exception applies

    Only in a homicide prosecution or a civil case. Made while believing death was imminent, about its cause or circumstances (FRE 804(b)(2)).

    Then go to step 37, Is it offered against the accused in a criminal case?

32. Statement against interest applies

    So contrary to the declarant's financial interest, or so likely to expose them to liability, that a reasonable person would only say it if true (FRE 804(b)(3)).

    In a criminal case it also needs corroborating circumstances that clearly indicate trustworthiness.

    Then go to step 37, Is it offered against the accused in a criminal case?

33. Another Rule 804 exception applies

    Covers statements of personal or family history (FRE 804(b)(4)) and statements offered against a party who wrongfully caused the declarant's unavailability, intending that result (FRE 804(b)(6)).

    Then go to step 37, Is it offered against the accused in a criminal case?

34. Does the residual exception in FRE 807 apply?

    The statement must have sufficient guarantees of trustworthiness, considering all the circumstances and any corroboration, and be more probative on the point than other evidence you can reasonably get.

    You must give the other side reasonable written notice before trial of the statement's substance and the declarant's name, unless the court excuses it for good cause.

    • Yes: go to step 35, Residual exception applies
    • No: go to step 36, Inadmissible hearsay. Object to exclude it
35. Residual exception applies

    Then go to step 37, Is it offered against the accused in a criminal case?

36. Inadmissible hearsay. Object to exclude it

    No exclusion or exception fits, so the rule against hearsay keeps it out (FRE 802).

    Check: you must object at trial. Unobjected hearsay usually comes in.

Confrontation Clause

37. Is it offered against the accused in a criminal case?

    The Sixth Amendment gives the accused the right to be confronted with the witnesses against them. It does not apply in civil cases.

    • No: go to step 38, Admissible under the hearsay exception
    • Yes: go to step 39, Is the statement testimonial?
38. Admissible under the hearsay exception

    The evidence rules alone decide admissibility.

    Check: the judge can still exclude it if unfair prejudice substantially outweighs its value.

39. Is the statement testimonial?

    Crawford v. Washington (2004): what matters is whether a statement is testimonial, not whether it seems reliable. Police interrogations fall squarely in that class.

    Davis v. Washington (2006): statements to police whose primary purpose is to meet an ongoing emergency are not testimonial. Statements to prove past events for a prosecution are.

    • No: go to step 40, Admissible. No confrontation problem
    • Yes: go to step 41, Unavailable, with a prior chance to cross-examine?
40. Admissible. No confrontation problem

    Nontestimonial hearsay only needs to satisfy the evidence rules.

41. Unavailable, with a prior chance to cross-examine?

    Forensic lab certificates are testimonial too (Melendez-Diaz, 2009). The accused can confront the analyst who certified the result (Bullcoming, 2011).

    • Yes: go to step 42, Admissible despite the Confrontation Clause
    • No: go to step 43, Excluded under the Confrontation Clause
    • Not sure: go to step 44, Brief the primary purpose test and ask the court
42. Admissible despite the Confrontation Clause

    Crawford admits testimonial statements of an absent witness only if the witness is unavailable and the defendant had a prior opportunity to cross-examine.

43. Excluded under the Confrontation Clause

    The hearsay exception does not cure this. Confrontation is the only reliability test the Constitution accepts for testimonial statements.

    Check: it can still come in for a non-truth purpose, which Crawford does not bar.

44. Brief the primary purpose test and ask the court

    Whether a statement is testimonial turns on the objective circumstances. Ask for a ruling before trial.