TITLE EIGHT — HEARSAY
Rule 805. Hearsay Within Hearsay
Rule. Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule in accordance with the common law, a statute, or a rule of court.
Each Level Analyzed Separately. Where a statement contains, refers to, records, or transmits another statement, the court shall identify each declarant and each level of hearsay. The proponent bears the burden of establishing an exception, or a non-hearsay purpose, as to each level. Failure as to any level renders the embedded statement inadmissible, although the containing statement may remain admissible.
Common Applications.
A dispatch log, incident report, or departmental record that is admissible under Rule 803(3) or Rule 803(9) does not thereby admit a statement of a bystander, a complainant, a suspect, or another person that the record contains; that statement requires its own exception or non-hearsay purpose.
A message that quotes, forwards, replies to, or embeds another message presents two levels, and each shall be analyzed.
A record of a regularly conducted activity that incorporates information supplied by a person who was not acting in the course of that activity is governed by Rule 803(9)(d) and by this rule.
An expert opinion is not a means of admitting an embedded statement, and Rule 703(2) governs.
Machine Layers Are Not Levels of Hearsay. An entry, timestamp, identifier, or other output generated without the intervention of a person is not a statement under Rule 801(1)(c) and adds no level of hearsay. Where a record consists of a machine-generated container and a human-supplied content, only the human-supplied content requires an exception.
Partial Admission.
Limiting the Use of an Exhibit. Where a record is admissible but an embedded statement within it is not, the court may admit the record and exclude the embedded statement from the consideration of the trier of fact, and shall, on timely request, instruct the trier of fact accordingly under Rule 105. The court may instead require the proponent to offer a version of the exhibit that omits the inadmissible matter.
A Filed Document Cannot Be Altered. A document, once received by the electronic filing system, is immutable, and no order shall purport to alter, redact, or remove any part of it. A version of an exhibit that omits inadmissible matter is a separate document, and where it is filed it constitutes a new filing bearing its own filing date and its own Bates number.