Hearsay and circumstances of its admissibility - Right to co...

Learning Outcomes

This article explains hearsay and the constitutional right to confront witnesses in criminal cases for MBE-style questions, including:

• How to identify hearsay, distinguish it from non-hearsay uses of out-of-court statements, and spot common exam traps
• How to apply the major hearsay exclusions and exceptions, with emphasis on unavailability-based exceptions such as former testimony, dying declarations, and statements against interest
• How to analyze whether a statement is testimonial or non-testimonial under the primary purpose test and related Supreme Court guidance
• How the Sixth Amendment Confrontation Clause restricts the prosecution’s use of testimonial hearsay and interacts with the Federal Rules of Evidence
• When prior testimony, forensic reports, 911 calls, and other recurring statement types may be admitted consistently with Crawford and subsequent cases
• How the Bruton doctrine operates in joint trials involving co-defendant confessions and what remedies courts use to avoid confrontation violations
• How forfeiture by wrongdoing removes both hearsay and Confrontation Clause objections when a defendant intentionally procures a witness’s unavailability
• How to structure a stepwise exam analysis that first resolves hearsay issues and then separately applies the Confrontation Clause to testimonial statements
• How to evaluate multiple-choice answer options that conflate evidentiary rules with constitutional requirements and select the most precise MBE answer

MBE Syllabus

For the MBE, you are required to understand hearsay and the right to confront witnesses in criminal cases, with a focus on the following syllabus points:

• Definition of hearsay; what is and is not hearsay under the Federal Rules
• Major hearsay exceptions, including those requiring unavailability (former testimony, dying declarations, statements against interest)
• Sixth Amendment Confrontation Clause: scope, purpose, and limits
• Distinction between testimonial and non-testimonial statements; “primary purpose” analysis
• Requirements for admitting testimonial hearsay: unavailability plus prior opportunity for cross-examination
• Co-defendant confessions and the Bruton rule in joint trials
• Forfeiture by wrongdoing and its effect on hearsay and confrontation
• Interaction between hearsay exceptions and the Confrontation Clause on the MBE

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT hearsay under the Federal Rules of Evidence?
   1. A witness testifies to what she heard another person say in court during the current trial.
   2. A witness testifies to what a declarant said out of court, offered to prove the truth of the matter asserted.
   3. A witness testifies to what a declarant said out of court, offered to show the effect on the listener.
   4. A witness testifies to what a declarant wrote in a letter, offered to prove the truth of the matter asserted.
2. Under the Confrontation Clause, a testimonial statement by an unavailable witness may be admitted in a criminal trial only if:
   1. The statement falls under a hearsay exception.
   2. The defendant had a prior opportunity to cross-examine the declarant.
   3. The statement was made to a friend during an emergency.
   4. The declarant is unavailable for any reason.
3. Which of the following is most likely to be considered "testimonial" for Confrontation Clause purposes?
   1. A 911 call describing an ongoing emergency.
   2. A statement made to police during a routine investigation after the emergency has ended.
   3. A statement made to a friend about a crime.
   4. A business record prepared in the ordinary course.

Introduction

Hearsay and the Confrontation Clause are heavily tested on the MBE. Evidence questions focus on the statutory rules: what counts as hearsay, which exceptions apply, and how to analyze purpose. Criminal procedure questions overlay the Sixth Amendment, asking when the prosecution may constitutionally use out-of-court statements against a criminal defendant.

The critical exam skill is to run both analyses:

• First: Is the statement hearsay under the rules of evidence, and does an exception apply?
• Second (criminal case, prosecution offering evidence against the accused): Is the statement testimonial? If so, were the Confrontation Clause requirements satisfied?

What Is Hearsay

Under the Federal Rules, hearsay has a specific definition.

Key Term: Hearsay
An out-of-court statement offered to prove the truth of the matter asserted in the statement.

“Statement” means an oral or written assertion, or nonverbal conduct intended as an assertion. The “declarant” is the person who made the statement. If the statement is offered to prove that what it asserts is actually true, it is hearsay unless an exclusion or exception applies.

A statement is “out-of-court” even if it was made in another proceeding (e.g., a prior trial, grand jury, 911 call, interview, affidavit, lab report).

When an Out-of-Court Statement Is Not Hearsay

Many out-of-court statements are not hearsay because they are offered for a purpose other than their truth.

Key Term: Not Hearsay (Purpose)
An out-of-court statement is not hearsay if offered for some non-truth purpose, such as showing its effect on the listener, providing notice, or demonstrating the declarant’s state of mind.

Common non-hearsay purposes on the MBE:

• Effect on listener: “He said the brakes were cut” offered to show why the listener refused to drive, regardless of whether the brakes were actually cut.
• Notice: A letter complaining about a dangerous condition offered to show the defendant had notice, not that the condition actually existed.
• Verbal acts or operative facts: Words that themselves have legal significance (e.g., contractual offers and acceptances, libel, threats, defamation).

Some out-of-court statements are also defined as “not hearsay” by the rules regardless of purpose.

Key Term: Opposing Party Statement
A statement made by a party and offered against that party; not hearsay under the Federal Rules (FRE 801(d)(2)).

So a defendant’s own prior statements offered by the prosecution are not hearsay at all. That matters for hearsay analysis, but Confrontation Clause issues can still arise when those statements are introduced through another witness or recording.

Hearsay Exceptions

Even if a statement is hearsay, it may be admissible under an exception.

Key Term: Hearsay Exception
A rule allowing certain hearsay statements to be admitted, even though they are out-of-court statements offered for their truth.

On the MBE, you must know:

• Exceptions that do not require unavailability (e.g., present sense impression, excited utterance, statements for medical diagnosis or treatment, business records).
• Exceptions that do require the declarant to be unavailable (e.g., former testimony, dying declarations, statements against interest).

The exceptions are evidence rules. In criminal cases, however, they must also be checked against the Confrontation Clause if the statement is testimonial and offered against the accused.

The Right to Confront Witnesses

In criminal prosecutions, the Sixth Amendment guarantees the accused the right “to be confronted with the witnesses against him.”

Key Term: Confrontation Clause
The Sixth Amendment right of a criminal defendant to confront and cross-examine witnesses who give testimonial evidence against them in a criminal prosecution.

Key features for exam purposes:

• Applies only in criminal cases.
• Protects only the accused, and only against statements offered by the prosecution.
• Focuses on testimonial statements by non-testifying declarants.

If the declarant testifies at trial and is subject to cross-examination about the prior statement, the Confrontation Clause is generally satisfied even if the earlier statement was testimonial.

Testimonial vs. Non-Testimonial Statements

The central Confrontation Clause question is whether a statement is “testimonial.”

Key Term: Testimonial Statement
A statement made in circumstances where an objective person would understand that the primary purpose is to establish or prove past facts for use in a later criminal prosecution.

Key Term: Non-Testimonial Statement
A statement made in circumstances where the primary purpose is something other than creating evidence for prosecution, such as addressing an ongoing emergency or conducting ordinary business.

The Supreme Court’s “primary purpose” test drives this analysis.

Typical testimonial statements on the MBE:

• Statements made during police interrogations once any emergency has ended, aimed at establishing what happened in the past and who did it.
• Affidavits, sworn certificates, and written statements prepared for trial (e.g., a sworn lab report identifying a substance as cocaine).
• Prior testimony at a preliminary hearing, prior trial, or grand jury, when offered against the defendant.

Typical non-testimonial statements:

• Statements to 911 operators and police made to describe events as they are happening during an ongoing emergency.
• Casual remarks to friends or family members.
• Statements to doctors for medical diagnosis or treatment.
• Business records created for administrative purposes, not primarily for use in prosecution.
• Statements made to non-law-enforcement personnel (e.g., teachers) when their primary purpose is to protect a child, not to build a case.

The same statement can change character over time. A 911 call may begin as non-testimonial when describing an active assault, but statements later in the call, after the scene is secure, may become testimonial.

Admissibility of Testimonial Hearsay

The Crawford line of cases defines the core rule.

Key Term: Crawford Doctrine
Testimonial hearsay may not be admitted against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.

Key Term: Prior Opportunity for Cross-Examination
A previous chance to cross-examine the declarant about the statement, such as at a prior trial, preliminary hearing, or deposition.

For testimonial statements, all three must be true:

• The statement is offered against a criminal defendant.
• The statement is testimonial.
• The declarant does not testify at trial and is not subject to cross-examination.

If those are met, the statement is barred unless:

• The declarant is unavailable, and
• The defendant had a prior opportunity to cross-examine that declarant about the statement, or
• The defendant forfeited the right by wrongdoing (see below).

A hearsay exception (like business records or excited utterance) is not enough by itself to satisfy the Sixth Amendment if the statement is testimonial and these conditions are not met.

Admissibility of Non-Testimonial Hearsay

For non-testimonial statements, Crawford does not apply. The Confrontation Clause is not violated, and admissibility is governed solely by the ordinary hearsay rules.

So if a child tells her mother, “Uncle hit me,” and the mother testifies about it, the main question is hearsay and exceptions (e.g., state-of-mind, excited utterance), not confrontation, because that statement to a family member is non-testimonial.

Special Confrontation Clause Doctrines

Two doctrines are frequently tested in conjunction with hearsay and confrontation: Bruton and forfeiture by wrongdoing.

Key Term: Bruton Doctrine
In a joint criminal trial, a non-testifying co-defendant’s confession that directly implicates another defendant cannot be used against the other defendant, because that defendant has no opportunity to cross-examine the co-defendant.

Key Term: Forfeiture by Wrongdoing
A defendant who intentionally procures a witness’s unavailability for the purpose of preventing testimony forfeits both hearsay and Confrontation Clause objections to that witness’s prior statements.

The Bruton Problem: Co-Defendant Confessions

A defendant’s own statements are always admissible against that defendant as opposing party statements. The problem arises when co-defendants are tried together and one has confessed, naming the other.

If the confessing co-defendant does not testify:

• The confession is admissible against the confessor.
• The same confession cannot be used against the other defendant, because that defendant cannot cross-examine the declarant.

Courts handle this by:

• Severing the trials,
• Redacting the confession to eliminate reference to the co-defendant (not just blanking out the name in an obvious way), or
• Excluding the confession entirely as to the co-defendant.

A limiting instruction alone is not enough when the confession directly names the co-defendant.

Forfeiture by Wrongdoing

If a defendant intentionally causes a witness to be unavailable, specifically to prevent that witness from testifying, the defendant forfeits Confrontation Clause protection.

In that situation:

• The witness’s hearsay statements may be admitted if an applicable hearsay exception is satisfied, and
• The defendant cannot claim a confrontation violation.

This doctrine often appears where a defendant threatens or kills a witness after charges are filed.

Confrontation Clause and Common Hearsay Exceptions

On the MBE, you must be able to see how evidence rules and the Sixth Amendment interact:

• Former testimony (FRE 804(b)(1)): In a criminal case, prior testimony from a preliminary hearing or prior trial is admissible only if the defendant (or a predecessor in interest in civil cases) had an opportunity and similar motive to cross-examine. That requirement aligns with Crawford’s prior-opportunity requirement.
• Business records: Routine business records (e.g., bank records, phone bills) are generally non-testimonial, so the Confrontation Clause is not a barrier. But forensic lab reports prepared for prosecution are usually testimonial and cannot be admitted unless the analyst testifies or the defendant has had a prior opportunity to cross-examine.
• Dying declarations: Traditionally admissible hearsay in homicide prosecutions and civil cases. The Supreme Court has suggested that dying declarations may remain admissible even if testimonial because of their historical status, but this detail is rarely outcome-determinative on the MBE.
• Statements against interest: When offered against the accused and made to police in anticipation of prosecution, they can be testimonial and thus raise confrontation problems unless the declarant is unavailable and previously cross-examined.

A good MBE habit: whenever a hearsay exception is invoked in a criminal case, ask “testimonial?” If yes, apply Crawford; if no, proceed under the evidence rules alone.

Worked Example 1.1

A witness in a robbery trial testifies that the victim told her, “The man who robbed me was wearing a red jacket,” shortly after the crime. The prosecution offers this statement for its truth, and the victim is unavailable.

Answer:
First, the statement is hearsay (out-of-court, offered for its truth). It might fit an excited utterance or present sense impression exception. Next, Confrontation Clause: was it testimonial? If the victim made the statement to a friend at the scene during the ongoing emergency, it is non-testimonial, and the Confrontation Clause does not bar it; only the hearsay exception analysis matters. If instead the statement was made in response to structured police questioning after the scene was secure, with the primary purpose of establishing what had occurred for later prosecution, it is testimonial. Because the victim is unavailable and the defendant had no prior opportunity to cross-examine, admitting the statement would violate the Confrontation Clause.

Worked Example 1.2

During a 911 call, a caller describes an ongoing assault. The recording is offered at trial, but the caller does not testify.

Answer:
The call is hearsay, but may qualify as a present sense impression or excited utterance. Under the Confrontation Clause, statements made to address an ongoing emergency are generally non-testimonial. If the caller is describing events in real time to obtain immediate police assistance, the primary purpose is to resolve the emergency, not to create evidence. The Confrontation Clause does not bar the recording; admissibility turns on the hearsay exception.

Worked Example 1.3

Police respond to a reported shooting. When they arrive, the scene is secure, and the victim is lying on the ground. An officer asks, “Who shot you?” The victim replies, “It was Dan; he shot me because I testified against him last year.” The victim dies; Dan is prosecuted for murder, and the statement is offered through the officer.

Answer:
The statement is hearsay; it might be a dying declaration (if the victim believed death was imminent) or an excited utterance. Confrontation analysis: at the time of questioning, there is no ongoing emergency; police are gathering information about past events to identify and prosecute the shooter. The primary purpose is investigatory, so the statement is testimonial. Because the victim is unavailable and Dan had no prior opportunity for cross-examination, the Confrontation Clause would normally bar the statement—even if a hearsay exception applies. On some exams, a dying declaration might be treated as a historical exception, but the safer exam answer follows Crawford: testimonial plus no prior cross means the statement is inadmissible against Dan.

Worked Example 1.4

Two defendants, A and B, are tried together for armed robbery. Before trial, A gave a signed confession to police: “I robbed the store with B; B held the gun.” At trial, A does not testify. The prosecution offers A’s confession.

Answer:
A’s confession is an opposing party statement and admissible against A, but not automatically against B. The statement is testimonial (police interrogation after the crime). Because A does not testify, B has no opportunity to cross-examine A. Under the Bruton doctrine, A’s confession, as written, cannot be used against B in a joint trial. The court must either exclude the confession as to B, sever the trials, or genuinely redact the confession so it no longer refers to B. A limiting instruction alone is not enough.

Worked Example 1.5

The government charges D with drug distribution. At trial, it offers a certified lab report stating that the substance seized from D’s car was cocaine. The analyst who prepared the report does not testify; instead, a supervisor testifies that the report was prepared in the ordinary course of lab business.

Answer:
The lab report is hearsay. It might look like a business or public record, but because it was prepared specifically to prove an element of a criminal offense, it is testimonial. Introducing the report without producing the analyst denies D the opportunity to cross-examine the actual declarant. Under the Crawford doctrine (as applied in cases like Melendez-Diaz), admission of the report violates the Confrontation Clause unless D had a prior opportunity to cross-examine the analyst or forfeited his rights by wrongdoing. The supervisor’s testimony is not an adequate substitute.

Exam Warning

Statements made to police or similar agents after an emergency has ended and under circumstances suggesting they will be used in prosecution are very likely testimonial. A common MBE trap is a victim’s description of past events given calmly at the station hours after the crime, offered through an officer when the victim does not testify. Even if an evidence rule exception fits, this often violates the Confrontation Clause if the defendant never had a chance to cross-examine the victim.

Revision Tip

On criminal-procedure-style MBE questions involving hearsay:

• Ask: Is the statement offered against a criminal defendant?
• If yes: Is it hearsay, and does an exception apply?
• Then: Is it testimonial under the primary purpose test?
• If testimonial: Was the declarant unavailable and did the defendant have a prior opportunity to cross-examine, or forfeit by wrongdoing?

Only if both evidence and constitutional requirements are met is the statement admissible.

Key Point Checklist

This article has covered the following key knowledge points:

• Hearsay is an out-of-court statement offered for its truth; non-truth purposes (effect on listener, notice, state of mind) are not hearsay.
• Opposing party statements (party admissions) are defined as non-hearsay under the Federal Rules.
• Hearsay exceptions allow certain hearsay to be admitted; some require unavailability, others do not.
• The Confrontation Clause applies only in criminal cases, protects only the accused, and focuses on testimonial statements offered by the prosecution.
• Testimonial statements are those made with the primary purpose of establishing or proving past facts for later prosecution; non-testimonial statements are governed only by the evidence rules.
• Under the Crawford doctrine, testimonial hearsay may be used against a defendant only if the declarant is unavailable and the defendant had a prior opportunity to cross-examine, or has forfeited the right by wrongdoing.
• Business records and similar routine records are usually non-testimonial, but forensic lab certificates prepared for trial are typically testimonial.
• In joint trials, the Bruton doctrine bars using a non-testifying co-defendant’s confession that directly implicates another defendant, absent severance or adequate redaction.
• Forfeiture by wrongdoing permits admission of a witness’s prior statements and eliminates Confrontation Clause objections when the defendant intentionally makes the witness unavailable to prevent testimony.

Key Terms and Concepts

• Hearsay
• Not Hearsay (Purpose)
• Opposing Party Statement
• Hearsay Exception
• Confrontation Clause
• Testimonial Statement
• Non-Testimonial Statement
• Prior Opportunity for Cross-Examination
• Crawford Doctrine
• Bruton Doctrine
• Forfeiture by Wrongdoing