Chapter 44 – Rule 805 Hearsay Within Hearsay

Written documents often contain statements made by 3 rd Parties

Ex: PO talking to several witnesses while investigating an accident. Officer records the witness
statements as well her own observations.
- Hearsay if offered in court to prove the truth of the matter asserted.
- Consist of secondhand statements: the officers record of what other witnesses said.
- Two levels of hearsay

Hearsay within Hearsay/ Double Hearsay/Multiple Hearsay –

R805 allows hearsay within hearsay to be admitted as long as each out-of-court statement is admissible
under an exception.
Ex: Harry was stabbed by an intruder in his apt. Roommate, Dale came home and found Harry
lying on the floor. H told D to call an ambulance, I was stabbed in the stomach with a switchblade. Dale
dialed the 911 operator. Prosecutor wishes to prove that Harry was stabbed in the stomach with a
switchblade knife. Calls the 911 operator to the stand to testify about what Dale told her about Harry’s
statements
Analysis: Dales statement to the operator qualifies as an excited utterance. It is admissible for
TOMA by H.
Step 1: Determine whether the operator can testify about what Dale told her.
- Dale’s statement to the operator qualifies as an excited utterance, so Dale’s statement is
admissible

Dale: “My friend Harry says he was stabbed in the stomach with a switchblade” (Must fit with some
hearsay exception). In order to be used for the TOMA
Here: Harry’s statement was made for the purpose of medical diagnosis/treatment

Harry – I was stabbed in the stomach

Dale- My friend Harry said he was stabbed in the stomach
Operator: Dale told me that his friend Harry was stabbed in the stomach
*Each layer of hearsay fits into its own exception, the operator’s statement is admissible.

If either of the layers fails to satisfy an exception, the entire statement is inadmissible to prove the truth
of the matter asserted by the original declarant.

Rule 805
Hearsay within hearsay is not excluded by the rules against hearsay if each part of the combined
statements conforms with an exception to the rule.

Watch for situations in which 1 out of court statement is embedded with another one. If a party offers
both layers for the truth of the matter of asserted, each layer must have its own hearsay exception in
order for the statement to be admissible.