Hearsay rule and 31 exceptions to hearsay under the FRE

Under the Federal Rules of Evidence, hearsay generally is inadmissible unless a federal statute, an Evidence Rule, or another rule prescribed by the Supreme Court permits it. For a 2026 study outline, “31 exceptions” is useful shorthand for 23 Rule 803 exceptions, five Rule 804 exceptions, one Rule 807 residual exception, and two categories of Rule 801(d) exclusions, although the last two are technically not hearsay, rather than exceptions.[3][4][5][6][2]

Hearsay Rule

Definition

Fed. R. Evid. 801(c) defines hearsay as a statement that:

“(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.”[5]

A statement includes an oral assertion, written assertion, or nonverbal conduct intended as an assertion. The declarant is the person who made it.[5]

General prohibition

Fed. R. Evid. 802 provides:

“Hearsay is not admissible unless any of the following provides otherwise:
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.”[6]

Example: A witness testifies, “Alex told me the light was red.” Offered to prove the light actually was red, Alex’s statement is hearsay. Offered for a relevant purpose other than its truth, such as explaining notice or its effect on the listener, it may fall outside the definition. Fed. R. Evid. 801(c) & advisory committee’s note.[5]

The 31-Category Outline

1–23: Exceptions That Do Not Require Unavailability

The controlling introduction to Fed. R. Evid. 803 states:

“The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness.”[3]

Each row summarizes the cited exception and its principal limitations.[3]

No.	Exception and authority	Essential requirements or limits
1	Present sense impression, Fed. R. Evid. 803(1)	Describes or explains an event or condition while or immediately after the declarant perceived it.
2	Excited utterance, Fed. R. Evid. 803(2)	Relates to a startling event or condition while the declarant remains under the stress it caused.
3	Then-existing mental, emotional, or physical condition, Fed. R. Evid. 803(3)	Includes current intent, motive, plan, emotion, pain, or health. Generally excludes memory or belief offered to prove the remembered or believed fact, except concerning the validity or terms of the declarant’s will.
4	Medical diagnosis or treatment, Fed. R. Evid. 803(4)	Made for and reasonably pertinent to diagnosis or treatment; describes medical history, symptoms, their inception, or general cause.
5	Recorded recollection, Fed. R. Evid. 803(5)	Witness once knew the matter but cannot now recall sufficiently; record was made or adopted while fresh and accurately reflects the witness’s knowledge. May be read into evidence, but received as an exhibit only if offered by an adverse party.
6	Records of a regularly conducted activity, Fed. R. Evid. 803(6)	Timely record by or from someone with knowledge, kept in a regularly conducted activity, with regular recordmaking practice; foundation through a qualified witness or permitted certification. Opponent may show untrustworthiness.
7	Absence of a regularly kept record, Fed. R. Evid. 803(7)	Absence proves a matter did not occur or exist where records ordinarily would include it, subject to an untrustworthiness objection.
8	Public records, Fed. R. Evid. 803(8)	Covers office activities, specified duty-based observations, and qualifying investigative findings. Important criminal-case limits apply to law-enforcement observations and investigative findings; opponent may show untrustworthiness.
9	Public records of vital statistics, Fed. R. Evid. 803(9)	Birth, death, or marriage reported to a public office under a legal duty.
10	Absence of a public record, Fed. R. Evid. 803(10)	Diligent search failed to disclose a record, to prove its absence or a routinely recorded matter’s nonoccurrence. Criminal certifications are subject to notice and demand procedures.
11	Religious organization records, Fed. R. Evid. 803(11)	Personal or family history in a regularly kept religious organization record.
12	Marriage, baptism, and similar certificates, Fed. R. Evid. 803(12)	Authorized person certifies performing the ceremony or sacrament; certificate purports to have been issued then or within a reasonable time.
13	Family records, Fed. R. Evid. 803(13)	Personal or family history in a family Bible, genealogy, chart, engraving, inscription, or similar record.
14	Records of property-interest documents, Fed. R. Evid. 803(14)	Publicly recorded document affecting property interests, where a statute authorizes recording that kind of document.
15	Statements in property-interest documents, Fed. R. Evid. 803(15)	Statement relevant to the document’s purpose, unless later property dealings are inconsistent with its truth or the document’s purport.
16	Ancient documents, Fed. R. Evid. 803(16)	Authenticated document prepared before January 1, 1998. Not simply any document more than 20 years old.
17	Market reports and commercial publications, Fed. R. Evid. 803(17)	Quotations, lists, directories, or compilations generally relied on by the public or a particular occupation.
18	Learned treatises, periodicals, or pamphlets, Fed. R. Evid. 803(18)	Reliable authority called to an expert’s attention on cross-examination or relied on during direct examination. May be read into evidence, but not received as an exhibit.
19	Reputation concerning personal or family history, Fed. R. Evid. 803(19)	Reputation among family, associates, or the community about qualifying personal or family facts.
20	Reputation concerning boundaries or general history, Fed. R. Evid. 803(20)	Community reputation arising before the controversy concerning land boundaries, land-related customs, or important historical events.
21	Reputation concerning character, Fed. R. Evid. 803(21)	Reputation among associates or in the community. This resolves only the hearsay issue, not other character-evidence restrictions.
22	Judgment of a previous conviction, Fed. R. Evid. 803(22)	Final conviction after trial or guilty plea, not a nolo contendere plea, for an offense punishable by death or more than one year’s imprisonment; offered to prove an essential fact. Additional restrictions apply to prosecution use against someone other than the defendant.
23	Judgments concerning personal, family, or general history, or boundaries, Fed. R. Evid. 803(23)	Matter was essential to the judgment and could be proved by reputation evidence.

24–28: Exceptions Requiring an Unavailable Declarant

Fed. R. Evid. 804(b) provides:

“The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness.”[4]

Unavailability includes:

A court ruling that a privilege exempts the declarant from testifying.
Refusal to testify despite a court order.
Testimony that the declarant cannot remember the subject matter.
Death or then-existing infirmity or physical or mental illness preventing attendance or testimony.
Absence despite the proponent’s qualifying efforts through process or other reasonable means.

The proponent cannot rely on this provision if it procured or wrongfully caused unavailability to prevent attendance or testimony.[4]

Each row below summarizes the cited exception.[4]

No.	Exception and authority	Essential requirements or limits
24	Former testimony, Fed. R. Evid. 804(b)(1)	Testimony at a trial, hearing, or lawful deposition; offered against a party who had an opportunity and similar motive to develop it by direct, cross-, or redirect examination. In civil cases, a predecessor in interest may satisfy that requirement.
25	Dying declaration, Fed. R. Evid. 804(b)(2)	In a homicide prosecution or civil case, statement about the cause or circumstances of death made while believing death imminent. Actual death is not required if another basis of unavailability exists.
26	Statement against interest, Fed. R. Evid. 804(b)(3)	So adverse to the declarant’s financial or property interests, claim, or civil or criminal liability that a reasonable person would make it only if believing it true. Penal-interest statements offered in criminal cases require corroborating circumstances clearly indicating trustworthiness.
27	Personal or family history, Fed. R. Evid. 804(b)(4)	Qualifying facts about the declarant’s own history, or another person’s history where the declarant has the required family relationship or intimate association.
28	Forfeiture by wrongdoing, Fed. R. Evid. 804(b)(6)	Offered against a party who wrongfully caused, or acquiesced in causing, unavailability intending that result.

2026 update to remember: The 2024 amendment to the penal-interest corroboration provision expressly requires consideration of the circumstances surrounding the statement and any evidence supporting or undermining it. Fed. R. Evid. 804(b)(3)(B) & advisory committee’s note to 2024 amendment.[4]

29: Residual Exception

Under Fed. R. Evid. 807, hearsay not admissible under a listed exception may nevertheless qualify if:

It has sufficient guarantees of trustworthiness, considering the totality of the circumstances and any corroborating evidence.
It is more probative on the offered point than other evidence reasonably obtainable.
The proponent gives reasonable notice, including the statement’s substance and declarant’s name, ordinarily in writing before trial or hearing. The court may excuse earlier notice for good cause.[2]

Unavailability is not a formal requirement. The current standard is “sufficient guarantees,” not the older “equivalent circumstantial guarantees” formulation. Fed. R. Evid. 807 & advisory committee’s note to 2019 amendment.[2]

30–31: Exclusions Defined as “Not Hearsay”

These are two umbrella categories, with multiple subcategories.[5]

No.	Category	Requirements
30	Declarant-witness’s prior statements, Fed. R. Evid. 801(d)(1)	Declarant testifies and is subject to cross-examination about the statement. Covers qualifying prior inconsistent statements given under penalty of perjury in a proceeding or deposition; qualifying prior consistent statements used to rebut fabrication or improper influence or rehabilitate credibility; and prior identifications.
31	Opposing party’s statements, Fed. R. Evid. 801(d)(2)	Offered against an opposing party. Covers the party’s own statements, adopted statements, authorized statements, qualifying agent or employee statements, and coconspirator statements during and in furtherance of the conspiracy.

Important distinction: An opposing party’s statement need not have been against that party’s interest when made. That requirement belongs to the separate statement-against-interest exception. Fed. R. Evid. 801(d)(2) & advisory committee’s note to 2011 amendment.[5]

2026 update: The 2024 amendment also permits attribution where a party’s claim, defense, or potential liability derives directly from the declarant or the declarant’s principal, such as certain estate or assignment relationships. Fed. R. Evid. 801(d)(2) & advisory committee’s note to 2024 amendment.[5]

Practical Limits

“31” is not an official rule count. It results from counting the two major exclusion groups as single categories. The former residual provisions in Fed. R. Evid. 803(24) and Fed. R. Evid. 804(b)(5) were transferred to Fed. R. Evid. 807 and should not be counted again.[2][3][4]
Each hearsay layer needs its own basis for admission. A business record containing a third party’s statement does not automatically make that statement admissible.[1]
A hearsay exception does not eliminate other admissibility objections. The Rule 803 advisory committee note expressly preserves other grounds for exclusion.[3]
Criminal cases require a separate confrontation analysis. Satisfying a hearsay exception does not itself satisfy the Confrontation Clause. Fed. R. Evid. 807 advisory committee’s note to 2019 amendment.[2]