Loading
Federal Rules of Evidence
6 min read
Published Date:
Last Modified Date:
Federal Rules of Evidence 801 and 802 govern hearsay and can affect the records, reports, statements, and other materials that expert witnesses review or discuss in federal court. This article explains what qualifies as hearsay, when exclusions or exceptions may apply, how Rule 703 allows experts to rely on certain otherwise inadmissible information, and what attorneys should consider when evaluating the evidentiary basis of expert testimony.
Expert witnesses may review medical records, financial documents, investigative reports, and other materials containing out-of-court statements that may qualify as hearsay.
Federal Rule of Evidence 801 defines hearsay, while Rule 802 generally prohibits its admission unless an applicable legal provision permits otherwise. Under Rule 703, an expert may rely on certain otherwise inadmissible information without automatically making the underlying statements admissible.
This guide explains what qualifies as hearsay under Rules 801 and 802, how those rules affect expert testimony, and what attorneys should consider when evaluating an expert's supporting evidence.
This guide addresses proceedings governed by the Federal Rules of Evidence. State courts generally apply their own evidence rules, which may differ from the federal rules.
Under Federal Rule of Evidence 801(c), a statement qualifies as hearsay when both of the following conditions are met, unless an exclusion under Rule 801(d) applies:
The declarant did not make the statement while testifying at the current trial or hearing.
The statement is offered to establish the truth of the matter asserted.
Under Rule 801(a), a statement may consist of an oral assertion, a written assertion, or nonverbal conduct intended as an assertion.
For example, an engineering expert might review an employee's written account stating that equipment malfunctioned before an accident. If the statement is offered to establish that the malfunction occurred, it raises a hearsay issue.
However, if the employer received the employee's statement, it might instead be offered to show notice of the reported equipment problem, regardless of whether the malfunction occurred.
Rule 801(d) identifies categories of statements that are not hearsay when specified requirements are satisfied.
These include:
Certain prior statements of testifying witnesses: Qualifying prior inconsistent statements, prior consistent statements, and prior identifications when the declarant testifies and is subject to cross-examination about the prior statement.
Statements offered against an opposing party: Qualifying statements made, adopted, or authorized by a party, as well as certain statements by agents, employees, or coconspirators.
Under Rule 801(d)(1)(A) as printed in the December 1, 2025 Federal Rules of Evidence, qualifying prior inconsistent statements must have been made under penalty of perjury at a trial, hearing, other proceeding, or deposition. A Supreme Court-adopted amendment scheduled to take effect on December 1, 2026, unless Congress provides otherwise, would eliminate the oath and formal-proceeding requirements for qualifying prior inconsistent statements. The declarant would still have to testify and be subject to cross-examination about the prior statement.
Under the Supreme Court's order, the amendment would govern proceedings commenced on or after December 1, 2026, and, where just and practicable, proceedings pending on that date.
Expert witnesses may review medical records, financial documents, investigative reports, and other materials containing out-of-court statements that may qualify as hearsay.
Federal Rule of Evidence 801 defines hearsay, while Rule 802 generally prohibits its admission unless an applicable legal provision permits otherwise. Under Rule 703, an expert may rely on certain otherwise inadmissible information without automatically making the underlying statements admissible.
This guide explains what qualifies as hearsay under Rules 801 and 802, how those rules affect expert testimony, and what attorneys should consider when evaluating an expert's supporting evidence.
This guide addresses proceedings governed by the Federal Rules of Evidence. State courts generally apply their own evidence rules, which may differ from the federal rules.
Under Federal Rule of Evidence 801(c), a statement qualifies as hearsay when both of the following conditions are met, unless an exclusion under Rule 801(d) applies:
The declarant did not make the statement while testifying at the current trial or hearing.
The statement is offered to establish the truth of the matter asserted.
Under Rule 801(a), a statement may consist of an oral assertion, a written assertion, or nonverbal conduct intended as an assertion.
For example, an engineering expert might review an employee's written account stating that equipment malfunctioned before an accident. If the statement is offered to establish that the malfunction occurred, it raises a hearsay issue.
However, if the employer received the employee's statement, it might instead be offered to show notice of the reported equipment problem, regardless of whether the malfunction occurred.
Rule 801(d) identifies categories of statements that are not hearsay when specified requirements are satisfied.
These include:
Certain prior statements of testifying witnesses: Qualifying prior inconsistent statements, prior consistent statements, and prior identifications when the declarant testifies and is subject to cross-examination about the prior statement.
Statements offered against an opposing party: Qualifying statements made, adopted, or authorized by a party, as well as certain statements by agents, employees, or coconspirators.
Under Rule 801(d)(1)(A) as printed in the December 1, 2025 Federal Rules of Evidence, qualifying prior inconsistent statements must have been made under penalty of perjury at a trial, hearing, other proceeding, or deposition. A Supreme Court-adopted amendment scheduled to take effect on December 1, 2026, unless Congress provides otherwise, would eliminate the oath and formal-proceeding requirements for qualifying prior inconsistent statements. The declarant would still have to testify and be subject to cross-examination about the prior statement.
Under the Supreme Court's order, the amendment would govern proceedings commenced on or after December 1, 2026, and, where just and practicable, proceedings pending on that date.
Federal Rule of Evidence 802 generally prohibits hearsay unless a federal statute, the Federal Rules of Evidence, or another rule prescribed by the Supreme Court permits its admission. Rule 802 also governs whether hearsay statements contained in records reviewed by an expert can be admitted to prove their truth.
For example, a forensic accountant may examine an internal investigation report alleging that certain transactions were unauthorized. Reviewing the report does not automatically make the investigator's allegations admissible as proof that the transactions were unauthorized.
Federal Rule of Evidence 803 provides several hearsay exceptions that may apply to materials reviewed by experts, including:
Statements for medical diagnosis or treatment, Rule 803(4): Statements made for and reasonably pertinent to medical diagnosis or treatment that describe medical history, past or present symptoms or sensations, their onset, or their general cause.
Business records, Rule 803(6): Records of regularly conducted activities that satisfy the rule's requirements for timely preparation, regular recordkeeping, and appropriate foundation, unless the opponent shows that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
Learned treatises, Rule 803(18): Statements from publications established as reliable authorities may be read into evidence, but not received as exhibits, when relied on by an expert on direct examination or called to the expert's attention on cross-examination.
These exceptions require separate analysis. A medical chart, financial report, or technical publication is not automatically admissible merely because an expert reviewed it.
Yes. Federal Rule of Evidence 703 permits experts to base opinions on otherwise inadmissible facts or data when experts in the relevant field would reasonably rely on that type of information.
However, Rule 703 distinguishes between information an expert may rely on and information that may be disclosed to the jury.
When supporting facts or data would otherwise be inadmissible, the proponent may disclose them to the jury only if their probative value in helping the jury evaluate the expert's opinion substantially outweighs their prejudicial effect.
An expert's reliance on hearsay therefore does not automatically make the underlying hearsay admissible. The expert's testimony must also satisfy Rule 702, including its requirements for sufficient facts or data, reliable methods, and reliable application to the case.
In criminal prosecutions, the Sixth Amendment's Confrontation Clause may separately restrict the prosecution's use of testimonial out-of-court statements conveyed through an expert. In Smith v. Arizona, 602 U.S. 779 (2024), the Supreme Court held that, for Confrontation Clause purposes, an absent analyst's statements relayed by a testifying expert are offered for their truth when they support the expert's opinion only if true. The Court left unresolved whether the particular statements were testimonial.
Experts reviewing records containing out-of-court statements may need to distinguish documented findings, disputed allegations, and information supported by independent analysis.
Medical and healthcare disputes: A medical expert may examine treatment records, diagnostic findings, and patient histories. The expert can evaluate the medical significance of documented information while distinguishing clinical findings from disputed statements.
Financial and accounting disputes: A forensic accountant may review transaction records, financial statements, and internal investigation materials. Independent reconciliation or financial analysis may help distinguish documented transactions from allegations about their purpose or authorization.
Engineering and accident disputes: An engineering expert may compare witness accounts, inspection reports, photographs, and physical evidence. Testing, measurements, and technical analysis may help assess whether reported conditions are consistent with other findings.
When preparing expert testimony, attorneys can evaluate potential hearsay issues by asking:
Was the statement made outside the declarant's testimony at the current trial or hearing?
Is the statement being offered to establish the truth of what it asserts?
Does Rule 801(d) exclude the statement from hearsay?
Does a hearsay exception or another provision recognized by Rule 802 permit admission?
If the expert relies on otherwise inadmissible information, is it the kind that experts in the field would reasonably rely on under Rule 703?
If the proponent seeks to disclose that information to the jury, does its probative value in helping the jury evaluate the opinion substantially outweigh its prejudicial effect?
Does every out-of-court statement qualify as hearsay?
No. Under Rule 801, an out-of-court statement generally qualifies as hearsay only when offered to prove the truth of what it asserts. Certain statements are also expressly excluded from hearsay under Rule 801(d).
Can an expert witness testify based on hearsay?
Yes. Rule 703 permits experts to rely on certain otherwise inadmissible information if experts in the relevant field would reasonably rely on that type of information. The resulting opinion remains subject to applicable admissibility requirements.
Can an expert repeat hearsay statements during trial?
Not automatically. Rule 703 restricts a proponent's disclosure of otherwise inadmissible supporting information to the jury. Other evidentiary provisions may still permit the admission of particular statements.
Are medical records automatically exempt from the hearsay rule?
No. Medical records must satisfy an applicable hearsay exception or another basis for admissibility. If a medical record contains multiple levels of hearsay, Rule 805 requires each hearsay layer to satisfy an applicable exception. A layer that meets the requirements of Rule 801(d) is not hearsay, so it needs no exception. Each remaining hearsay layer must still satisfy an exception of its own.
Federal Rule of Evidence 802 generally prohibits hearsay unless a federal statute, the Federal Rules of Evidence, or another rule prescribed by the Supreme Court permits its admission. Rule 802 also governs whether hearsay statements contained in records reviewed by an expert can be admitted to prove their truth.
For example, a forensic accountant may examine an internal investigation report alleging that certain transactions were unauthorized. Reviewing the report does not automatically make the investigator's allegations admissible as proof that the transactions were unauthorized.
Federal Rule of Evidence 803 provides several hearsay exceptions that may apply to materials reviewed by experts, including:
Statements for medical diagnosis or treatment, Rule 803(4): Statements made for and reasonably pertinent to medical diagnosis or treatment that describe medical history, past or present symptoms or sensations, their onset, or their general cause.
Business records, Rule 803(6): Records of regularly conducted activities that satisfy the rule's requirements for timely preparation, regular recordkeeping, and appropriate foundation, unless the opponent shows that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
Learned treatises, Rule 803(18): Statements from publications established as reliable authorities may be read into evidence, but not received as exhibits, when relied on by an expert on direct examination or called to the expert's attention on cross-examination.
These exceptions require separate analysis. A medical chart, financial report, or technical publication is not automatically admissible merely because an expert reviewed it.
Yes. Federal Rule of Evidence 703 permits experts to base opinions on otherwise inadmissible facts or data when experts in the relevant field would reasonably rely on that type of information.
However, Rule 703 distinguishes between information an expert may rely on and information that may be disclosed to the jury.
When supporting facts or data would otherwise be inadmissible, the proponent may disclose them to the jury only if their probative value in helping the jury evaluate the expert's opinion substantially outweighs their prejudicial effect.
An expert's reliance on hearsay therefore does not automatically make the underlying hearsay admissible. The expert's testimony must also satisfy Rule 702, including its requirements for sufficient facts or data, reliable methods, and reliable application to the case.
In criminal prosecutions, the Sixth Amendment's Confrontation Clause may separately restrict the prosecution's use of testimonial out-of-court statements conveyed through an expert. In Smith v. Arizona, 602 U.S. 779 (2024), the Supreme Court held that, for Confrontation Clause purposes, an absent analyst's statements relayed by a testifying expert are offered for their truth when they support the expert's opinion only if true. The Court left unresolved whether the particular statements were testimonial.
Experts reviewing records containing out-of-court statements may need to distinguish documented findings, disputed allegations, and information supported by independent analysis.
Medical and healthcare disputes: A medical expert may examine treatment records, diagnostic findings, and patient histories. The expert can evaluate the medical significance of documented information while distinguishing clinical findings from disputed statements.
Financial and accounting disputes: A forensic accountant may review transaction records, financial statements, and internal investigation materials. Independent reconciliation or financial analysis may help distinguish documented transactions from allegations about their purpose or authorization.
Engineering and accident disputes: An engineering expert may compare witness accounts, inspection reports, photographs, and physical evidence. Testing, measurements, and technical analysis may help assess whether reported conditions are consistent with other findings.
When preparing expert testimony, attorneys can evaluate potential hearsay issues by asking:
Was the statement made outside the declarant's testimony at the current trial or hearing?
Is the statement being offered to establish the truth of what it asserts?
Does Rule 801(d) exclude the statement from hearsay?
Does a hearsay exception or another provision recognized by Rule 802 permit admission?
If the expert relies on otherwise inadmissible information, is it the kind that experts in the field would reasonably rely on under Rule 703?
If the proponent seeks to disclose that information to the jury, does its probative value in helping the jury evaluate the opinion substantially outweigh its prejudicial effect?
Does every out-of-court statement qualify as hearsay?
No. Under Rule 801, an out-of-court statement generally qualifies as hearsay only when offered to prove the truth of what it asserts. Certain statements are also expressly excluded from hearsay under Rule 801(d).
Can an expert witness testify based on hearsay?
Yes. Rule 703 permits experts to rely on certain otherwise inadmissible information if experts in the relevant field would reasonably rely on that type of information. The resulting opinion remains subject to applicable admissibility requirements.
Can an expert repeat hearsay statements during trial?
Not automatically. Rule 703 restricts a proponent's disclosure of otherwise inadmissible supporting information to the jury. Other evidentiary provisions may still permit the admission of particular statements.
Are medical records automatically exempt from the hearsay rule?
No. Medical records must satisfy an applicable hearsay exception or another basis for admissibility. If a medical record contains multiple levels of hearsay, Rule 805 requires each hearsay layer to satisfy an applicable exception. A layer that meets the requirements of Rule 801(d) is not hearsay, so it needs no exception. Each remaining hearsay layer must still satisfy an exception of its own.
Federal Rules of Evidence
Federal Rules of Evidence