708.1Availability Immaterial [Rule 803]
Key Concepts
- Hearsay evidence is generally not admissible unless it is allowed by statute or another rule of evidence.
- Rule 803 sets forth several exceptions to the hearsay rule, which apply even if the declarant is available to testify.
- Evidence that satisfies a hearsay exception may nevertheless be excluded on other grounds such as relevance, prejudice, or confrontation rights.
The Basic Rule
Rule 803 – Hearsay Exceptions; Availability of Declarant Immaterial
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The following are not excluded by the hearsay rule, even though the declarant is available as a witness… |
As discussed in the related Evidence entry on Hearsay: Definition and Admissibility, Rules of Evidence 801 and 802 generally bar the introduction of hearsay (that is: a statement by the declarant, made other than while testifying, and offered for the truth of the matter asserted) into evidence unless the hearsay is admissible under an exception set forth by statute or another rule of evidence.
Rule 803 provides many such exceptions, and directs that the exceptions shall apply regardless of whether “the declarant is available as a witness.” G.S. 8C-803.
If one or more of the exceptions listed below apply, the statement is not barred by the hearsay rules; however, the evidence may still be excluded on other grounds such as relevance or prejudice. See G.S. 8C-803, Official Commentary (“The exceptions are phrased in terms of nonapplication of the hearsay rule, rather than in positive terms of admissibility, in order to repel any implication that other possible grounds for exclusion are eliminated from consideration.”).
Crawford and Confrontation
Hearsay statements that are admissible under one of the Rule 803 hearsay exceptions, such as an excited utterance or a business record, will rarely be “testimonial” in nature and therefore they usually do not implicate the confrontation clause. See, e.g., State v. Miller, 371 N.C. 273 (2018) (victim's statements to officer responding to emergency call were excited utterances and were not testimonial statements under the confrontation clause, even though victim described events that had occurred before the officer's arrival, since statements were made during the course of an ongoing emergency, the information prompted the officer to enter the apartment to ensure that defendant had departed and no longer posed a threat to victim's safety, and the victim's statements were not made in a formal and tranquil environment).
However, confrontation issues could potentially arise in a case where, for example, the declarant made a statement to a law enforcement officer in response to questioning designed to elicit information for use in prosecuting the offense. See, e.g., State v. Allen, 162 N.C. App. 587 (2004) (concluding that witness statements to responding officer were admissible as excited utterances); 358 N.C. 546 (2004) (remanded for reconsideration in light of Crawford v. Washington, 541 U.S. 36 (2004)); 171 N.C. App. 71 (2005) (reversing, and holding that even if statements were excited utterances, they were also testimonial and therefore inadmissible under Crawford).
Therefore, when utilizing any of the hearsay exceptions listed below or relying on any supporting cases decided prior to 2004, prosecutors must also consider whether admission of the statement implicates Crawford and the defendant’s confrontation rights. For further discussion, see Jessica Smith, “Guide to Crawford and the Confrontation Clause,” N.C. Superior Court Judges’ Benchbook, July 2018.
Rule 803 Exceptions
The hearsay exceptions in Rule 803 that most freqeuently arise in criminal cases are discussed separately and in greater detail in the following entries:
Present Sense Impression [Rule 803(1)]
Excited Utterance [Rule 803(2)]
Mental/Physical Condition [Rule 803(3)]
Medical Diagnosis/Treatment [Rule 803(4)]
Recorded Recollection [Rule 803(5)]
Business Records [Rule 803(6)]
Absence of Records [Rule 803(7)]
Commercial Publications [Rule 803(17)]
Learned Treatises [Rule 803(18)]
Reputation/Character [Rule 803(21)]
