Hearsay, as defined in Rule 801, is admissible if it falls into one of two categories of exceptions: (i) hearsay which is admissible whether or not the declarant is available as a witness,56 and (ii) hearsay which is admissible only if the declarant is unavailable as a witness.57 The exceptions listed under the first category, which do not require a showing that the person who made the statement is not available as a witness, are based upon the theory that those exceptions “possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial.”58 The exceptions listed under the second category, which do require a showing that the person who made the statement is unavailable as a witness, are based upon the theory that the exceptions covered by that category do not equal in quality testimony of the declarant on the stand but are “preferred over complete loss of the evidence of the declarant.”59
The fact that the proffered evidence falls into one of the two categories of exceptions does not automatically assure its admissibility. The introduction to the exception rules makes it clear that they merely provide that meeting the requirements of the exceptions will preclude the evidence being rejected on grounds of hearsay. The evidence may still be excludable on other grounds.
56. D.R.E. 803.
57. D.R.E. 804(b).
58. Fed. R. Evid. 803 advisory committee’s note.
59. Fed. R. Evid. 804 advisory committee’s note.
© 2010 David L. Finger