Hearsay and circumstances of its admissibility - Multiple he...

Learning Outcomes

This article examines multiple hearsay (hearsay within hearsay) under the Federal Rules of Evidence, including how to approach typical MBE fact patterns and avoid common traps:

• Identifying when an offered statement contains more than one distinct hearsay layer and articulating who each declarant is.
• Distinguishing genuine hearsay layers from non-hearsay uses (such as verbal acts, effect on the listener, or circumstantial evidence of state of mind) so you do not waste time analyzing non-hearsay.
• Applying FRE 805 by testing each layer of a statement against hearsay exceptions or exclusions and recognizing when one missing exception makes the entire statement inadmissible for its truth.
• Analyzing common multiple-hearsay scenarios involving business records, public records, prior testimony, and party admissions, with particular attention to embedded outsider statements.
• Determining when portions of a statement may be admitted, redacted, or limited to non-hearsay purposes on the MBE, and how courts use limiting instructions.
• Comparing typical inner-layer solutions—such as excited utterances, present sense impressions, statements for medical diagnosis or treatment, and dying declarations—to decide which option best fits the facts in a multiple-choice question.

MBE Syllabus

For the MBE, you are required to understand hearsay and circumstances of its admissibility, with a focus on the following syllabus points:

• Recognizing out-of-court statements and determining whether they are offered for the truth of the matter asserted.
• Identifying when a statement contains multiple levels of hearsay (hearsay within hearsay).
• Understanding and applying Federal Rule of Evidence 805 to multiple-hearsay problems.
• Analyzing each level of a multiple-hearsay statement independently for an exception or exclusion (e.g., party admissions, prior statements, business records).
• Evaluating documents (business records, public records, medical records) that embed additional hearsay statements.
• Concluding whether the entire statement, or only certain portions, are admissible in light of hearsay and any constitutional limits (such as the Confrontation Clause).

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. Under FRE 805, for a statement containing hearsay within hearsay to be admissible, what is required?
   1. Only the outer layer of hearsay needs an exception.
   2. Only the inner layer of hearsay needs an exception.
   3. Both the inner and outer layers of hearsay must conform to a hearsay exception or exclusion.
   4. The statement is never admissible due to its unreliability.
2. A police officer testifies in court, "The witness told me that the victim yelled, 'The defendant is getting away!'" If offered to prove the defendant fled, how should this statement be analyzed?
   1. As non-hearsay because it was said by the victim.
   2. As admissible under a single hearsay exception for the witness's statement.
   3. As multiple hearsay requiring exceptions for both the victim's yell and the witness's statement to the officer.
   4. As inadmissible character evidence.
3. Which of the following scenarios presents a potential multiple hearsay issue?
   1. A witness testifies, "I saw the defendant run the red light."
   2. A diary entry offered to prove the author's state of mind.
   3. A business record containing a statement made by a customer recorded by an employee.
   4. A witness testifies, "The defendant told me he ran the red light."

Introduction

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Under FRE 801(c), such statements are generally inadmissible unless a hearsay exception or exclusion applies. Sometimes, however, an out-of-court statement contains another out-of-court statement. This is multiple hearsay (also called hearsay within hearsay).

Federal Rule of Evidence 805 addresses this situation. It provides that hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statement conforms with a hearsay exception. In practice, that means:

• Each distinct layer must either:
  • Be non-hearsay (e.g., verbal act, effect on listener), or
  • Fall within a hearsay exclusion (such as an opposing party’s statement under FRE 801(d)(2), or a prior statement under FRE 801(d)(1)), or
  • Satisfy a hearsay exception (e.g., present sense impression, excited utterance, business records, medical diagnosis).

Key Term: Multiple Hearsay
An out-of-court statement that incorporates another out-of-court statement (hearsay within hearsay), so that admissibility requires each level of hearsay to independently qualify under an exception or exclusion, or to be offered for a non-hearsay purpose.

Key Term: Hearsay Layer
A distinct out-of-court assertion within the offered evidence. Each declarant’s asserted statement that is being used for its truth is a separate hearsay layer that must be analyzed.

Key Term: Outer Layer of Hearsay
The statement that is directly presented to the factfinder (for example, a witness’s in-court testimony about what someone else said, or a written record itself). It may itself contain embedded statements.

Key Term: Inner Layer of Hearsay
Any quoted or paraphrased out-of-court statement embedded within another out-of-court statement. It usually appears in quotes, in a summary (“he told me that…”), or within a record entry.

Key Term: Verbal Act
An utterance that has independent legal significance simply because it was made (such as words of offer, acceptance, defamation, or threat), so it is not offered for its truth and is therefore not hearsay.

Key Term: Effect on the Listener
An out-of-court statement offered not to prove its truth but to show its impact on the person who heard it (such as notice, knowledge, duress, or reasonableness), which is non-hearsay.

Before applying FRE 805, always confirm that each component actually meets the definition of hearsay. If a statement is offered as a verbal act or solely for its effect on a listener, it does not count as a hearsay layer and does not require an exception.

Multiple Hearsay and Non-Hearsay Uses

Not every embedded statement creates a multiple-hearsay problem. For example:

• A trapped accident victim shouts, "Tell my mother I love her," and the statement is offered only to show that the victim was alive after the crash. That use is not to prove any asserted fact; it is circumstantial evidence of life. There is no hearsay problem at all.
• By contrast, "The blue car ran the light" is an assertion that can be either true or false. If offered to prove that the blue car went through the red light, it is hearsay and triggers the hearsay rules.

Exam strategy:

• First ask: Is this statement being offered for its truth?
• If no, it is not hearsay and FRE 805 never comes into play.
• If yes, then dissect the statement to identify each hearsay layer and analyze each layer separately.

Analyzing Multiple Hearsay (FRE 805)

When confronted with a statement that appears to contain multiple levels of hearsay, proceed methodically.

Step 0: Confirm That the Statement Is Hearsay

• Identify the out-of-court declarant(s).
• Ask whether the statement is offered to prove the truth of what it asserts.
  • If it is offered as a verbal act or for effect on the listener, it is not hearsay.
  • If it is offered to prove the truth of the assertion, it is hearsay and you must look for exclusions or exceptions.

Step 1: Identify the Layers

Break the evidence down into its components:

• Who made each statement?
• When was each statement made?
• Is each statement being offered for its truth?

Common patterns:

• "A told me that B said, '…'" — B is the inner declarant; A’s repetition is the outer statement.
• A business or public record that quotes a patient, customer, or eyewitness — the record is the outer layer; the quoted person’s statement is the inner layer.
• A victim’s dying declaration that repeats what the defendant said — the victim’s statement and the defendant’s statement are separate layers.

Step 2: Analyze the Outermost Layer

Examine the statement that is actually being introduced (testimony or document):

• Is it hearsay?
• If so, does it fit:
  • A hearsay exclusion (e.g., opposing party’s statement, prior identification, prior consistent or inconsistent statement under FRE 801(d)), or
  • A hearsay exception (e.g., business records, public records, present sense impression, excited utterance)?

For documents, the outer layer is usually analyzed under:

• Business records (FRE 803(6)),
• Public records (FRE 803(8)),
• Past recollection recorded (FRE 803(5)), or
• Judgment of prior conviction (FRE 803(22)).

Step 3: Analyze the Inner Layer(s)

For each embedded statement:

• Treat the inner declarant as if that person were being quoted directly.
• Ask whether that inner statement is:
  • Non-hearsay (verbal act, effect on listener, etc.),
  • Excluded from hearsay (opposing party’s statement; prior identification; prior consistent or inconsistent statement when requirements are met), or
  • Within a hearsay exception (e.g., excited utterance, present sense impression, medical diagnosis/treatment, dying declaration, statement against interest).

Remember that an inner statement does not automatically become admissible just because it is written in a business record or public record. Usually:

• The record can qualify as a business or public record.
• But statements from outsiders with no business duty to report require their own exceptions.

Step 4: Determine Overall Admissibility

Under FRE 805:

• The combined statement is admissible only if every hearsay layer is accounted for.
• If any hearsay component lacks an exception or exclusion, the portion of the evidence dependent on that component must be excluded or redacted.
• Courts may allow:
  • Admission of the record but with the problematic hearsay redacted, or
  • Admission with a limiting instruction (for a non-hearsay purpose only).

Worked Example 1.1

Witness testifies: "Officer Miller told me yesterday that the accident victim, just before losing consciousness, whispered, 'The blue car ran the light.'" The proponent offers this to prove the blue car ran the light. Is the full statement admissible?

Answer:
This is multiple hearsay and is not admissible for its truth as stated.

• Layer 1 (Outer): Officer Miller’s statement to Witness ("the accident victim… whispered, 'The blue car ran the light.'"). This is an out-of-court assertion offered to prove that the victim made that statement and, ultimately, that the blue car ran the light. On these facts, it does not fit any clear exception: it is a narrative given the next day, not an excited utterance or present sense impression; it is not a business or public record; and it is not an opposing party’s statement.
• Layer 2 (Inner): The victim’s whisper ("The blue car ran the light."). This is also hearsay if offered to prove the blue car ran the light. It might fit a hearsay exception such as a dying declaration (FRE 804(b)(2)) if the victim believed death was imminent and the case is a homicide or civil case, or possibly an excited utterance (FRE 803(2)) if made under the stress of the accident.
• Conclusion: Even if the inner layer qualifies (e.g., as a dying declaration), the outer layer (Officer Miller’s statement to Witness) does not. Because each hearsay layer must be admissible, Witness’s double-hearsay testimony cannot be admitted for its truth. At best, some portion might be admissible for a non-hearsay purpose (for example, to explain why Witness took certain actions), but not to prove that the blue car actually ran the light.

Worked Example 1.2

Plaintiff offers a properly authenticated hospital record (business record under FRE 803(6)) made by a nurse, containing the entry: "Patient stated, 'My chest started hurting right after the defendant punched me.'" This is offered in a battery case to prove the punch caused the chest pain. Is the Patient's statement within the record admissible?

Answer:
Yes. This is multiple hearsay, but both layers are admissible.

• Layer 1 (Outer): The hospital record itself. Assuming the required elements for a business record are satisfied (kept in the course of regularly conducted activity; made at or near the time by someone with knowledge and a business duty to report; and no indication of untrustworthiness), the record qualifies under FRE 803(6).
• Layer 2 (Inner): The patient’s statement ("My chest started hurting right after the defendant punched me.") is an out-of-court assertion offered to prove causation. It fits the hearsay exception for statements made for purposes of medical diagnosis or treatment (FRE 803(4)) because it describes symptoms and a cause reasonably related to treatment.
• Conclusion: The outer layer is admissible as a business record; the inner layer is admissible as a statement for medical diagnosis or treatment. Therefore, under FRE 805, the patient’s statement within the record is admissible to prove that the punch preceded the pain.

Worked Example 1.3 – Letter Quoting a Third Person

Witness wants to read a letter from her brother to her, which says: "Yesterday I was talking to Mom, and she told me that the red car was speeding." The letter is offered to prove that the red car was in fact speeding.

Answer:
This is multiple hearsay and, on these facts, is inadmissible for its truth.

• Layer 1 (Outer): Brother’s letter to Witness. The letter is an out-of-court written assertion. No facts suggest a hearsay exception: it is not a business record, public record, prior testimony, or statement for medical treatment. It is simply a personal letter, which is hearsay with no exception.
• Layer 2 (Inner): Mother’s statement ("the red car was speeding"). That statement might fit an exception such as present sense impression or excited utterance if it was made while watching the car or during an accident. But even if Mother’s statement qualifies, the letter itself (Brother’s reporting of Mother’s statement) does not.
• Conclusion: Because the outer layer lacks an applicable exception or exclusion, the combined statement is inadmissible to prove that the red car was speeding, even if the inner layer might independently qualify.

Worked Example 1.4 – Business Record with Customer’s Statement

A grocery store offers an incident report prepared by the store manager, a record kept in the regular course of business. The report states: "At 3 p.m., I spoke with Shopper, who said, 'I saw the plaintiff running and then he tripped over his own feet.'" The store offers this to show the plaintiff caused his own fall.

Answer:
This is multiple hearsay.

• Layer 1 (Outer): The incident report can qualify as a business record under FRE 803(6): the store regularly makes such reports, the manager had a business duty to record, and the record was made close in time. So the report itself is admissible.
• Layer 2 (Inner): Shopper’s statement ("I saw the plaintiff running and then he tripped over his own feet.") is hearsay if offered to prove plaintiff was running and tripped. Shopper is an outsider with no business duty to report accurately to the store, so her statement does not ride into evidence via the business-records exception. You must find a separate hearsay exception—none is apparent from the facts (no medical treatment, no excited utterance facts, etc.).
• Conclusion: The report may be admitted to show, for example, that the manager conducted an investigation, but Shopper’s quoted statement cannot be used substantively to prove the plaintiff caused his own fall. That portion should be redacted or limited to a non-hearsay purpose if relevant.

Worked Example 1.5 – Police Report in a Civil Case

In a civil negligence case, the plaintiff offers a certified police accident report stating: "Officer’s observations: skid marks present. Bystander Jones stated, 'The defendant went through the light at full speed.'" The report is offered to prove the defendant ran the light.

Answer:
Again, multiple hearsay.

• Layer 1 (Outer): The police report may qualify either as a business record (FRE 803(6)) or a public record (FRE 803(8)) in a civil case. Records of an agency’s activities and observations made under a duty to report generally fit a hearsay exception, absent untrustworthiness.
• Layer 2 (Inner): Jones’s statement ("The defendant went through the light at full speed") is hearsay. Jones is a mere bystander, not under a business duty to report. His statement does not automatically become admissible simply because it is written down. You need a separate exception (excited utterance, present sense impression, prior inconsistent statement under oath, etc.). If none applies, Jones’s statement is inadmissible hearsay.
• Conclusion: The portions of the report reflecting the officer’s own observations (e.g., skid marks) can be admitted under a records exception. Jones’s embedded statement, however, must be excluded for its truth unless it independently qualifies under a hearsay exception.

Worked Example 1.6 – Dying Declaration Containing a Party Admission

In a homicide prosecution, the victim said while believing death was imminent, "The defendant did this to me. He told me he used a slow-acting poison." The victim dies. A nurse testifies to this statement, and the prosecution offers it to prove the defendant poisoned the victim.

Answer:
This is classic multiple hearsay where both layers are admissible.

• Layer 1 (Outer): The victim’s statement ("The defendant did this to me. He told me he used a slow-acting poison.") is made under belief of imminent death and describes the cause or circumstances of impending death. In a homicide prosecution (or any civil case), that fits the dying declaration exception (FRE 804(b)(2)), assuming the victim is unavailable.
• Layer 2 (Inner): The defendant’s statement incorporated in the victim’s account ("He told me he used a slow-acting poison") is an opposing party’s statement, excluded from hearsay under FRE 801(d)(2)(A). Party admissions do not need to be against interest at the time; they are admissible simply because they are offered against the party.
• Conclusion: Both hearsay layers are admissible (dying declaration plus party admission), so the entire combined statement is admissible under FRE 805.

Worked Example 1.7 – Medical Record with Fault Details

A hospital record states: "Patient reports, 'I was hit by a car that ran the stop sign at high speed.'" The plaintiff offers the record in a personal injury case to prove the car ran the stop sign and was speeding.

Answer:
This is multiple hearsay, and you must separate causation from fault.

• Layer 1 (Outer): The hospital record can qualify as a business record (FRE 803(6)), assuming the usual requirements are satisfied.
• Layer 2 (Inner): Patient’s statement may fall under the medical diagnosis/treatment exception (FRE 803(4)) only to the extent it is reasonably related to diagnosis or treatment. Statements describing that the patient was hit by a car and the nature of the impact ("I was hit by a car," "I was thrown onto the pavement") are usually relevant because they help determine the type of injuries. Specific blame details ("the car ran the stop sign," "the driver was texting") are generally not relevant to medical care and do not fall within FRE 803(4).
• Conclusion: The record is admissible, and the portion of the patient’s statement describing being hit by a car at high speed is likely admissible to show mechanism of injury. The details assigning fault (that the driver ran the stop sign) should be excluded or disregarded for their truth because they are not within the medical-treatment exception.

Exam Warning

A frequent MBE trap is to spot one applicable hearsay exception and conclude that the entire statement is admissible. Under FRE 805, that is incorrect. You must:

• Identify each hearsay layer.
• Find an exception or exclusion for each layer.
• If any hearsay layer is unsupported, the statement is inadmissible to prove the matter that depends on that layer (unless it can be used for a non-hearsay purpose).

Another trap is to assume that once a document qualifies as a business or public record, everything in it is admissible for its truth. That is wrong. Outsiders’ statements in those records require independent exceptions.

Summary

Multiple hearsay arises whenever an out-of-court statement itself contains another out-of-court statement. Under FRE 805, a combined statement is admissible only if every hearsay layer is independently admissible—either because it is non-hearsay, excluded from hearsay (e.g., opposing party’s statement, prior statement of a witness), or within a hearsay exception.

On MBE questions:

• Start by checking whether the statement (or parts of it) are even hearsay, or whether they are offered as verbal acts, effect on the listener, or circumstantial evidence of state of mind.
• Once you confirm hearsay, identify each declarant and each asserted proposition.
• Apply the appropriate exceptions or exclusions to each layer:
  • Outer layers often depend on business records, public records, or past recollection recorded.
  • Inner layers often involve party admissions, excited utterances, present sense impressions, statements for medical diagnosis/treatment, or dying declarations.
• Remember that some portions of a combined statement may be admitted while others are redacted or limited to non-hearsay purposes.

Careful, layer-by-layer analysis of complex statements is essential to correctly answer multiple-hearsay questions on the MBE.

Key Point Checklist

This article has covered the following key knowledge points:

• Multiple hearsay occurs when an out-of-court statement incorporates another out-of-court statement offered for its truth.
• FRE 805 provides that hearsay within hearsay is admissible only if each hearsay layer independently fits an exception or exclusion, or is offered for a non-hearsay purpose.
• A hearsay layer is any distinct out-of-court assertion being used for its truth; each declarant’s assertion must be isolated and analyzed.
• The outer layer is typically the document or testimony being introduced; the inner layer is the embedded statement.
• Non-hearsay uses such as verbal acts and effect on the listener do not trigger FRE 805 and do not require exceptions.
• Business and public records frequently contain embedded hearsay; the record may be admissible while quoted statements from outsiders may not be.
• Common inner-layer solutions on the MBE include opposing party’s statements, excited utterances, present sense impressions, statements for medical diagnosis or treatment, and dying declarations.
• Portions of a combined statement that lack an applicable exception must be redacted or limited; only the supported layers can be used substantively.
• Accurately answering MBE evidence questions requires explicit, layer-by-layer analysis of any statement that appears to involve hearsay within hearsay.

Key Terms and Concepts

• Multiple Hearsay
• Hearsay Layer
• Outer Layer of Hearsay
• Inner Layer of Hearsay
• Verbal Act
• Effect on the Listener