Rule 805: Hearsay Within Hearsay

Rule 805 addresses the problem of multiple layers of hearsay — situations where one out-of-court statement contains or relies on another out-of-court statement. This is sometimes called 'totem pole hearsay' or 'double hearsay.' The rule permits such layered hearsay, but only if each layer independently fits within a hearsay exception or exclusion.

A common example is a hospital record (business record under 803(6)) that contains a patient's statement about the cause of their injury (statement for medical diagnosis under 803(4)). Each layer must be independently justified: the record itself qualifies under the business records exception, and the patient's statement within it qualifies under the medical diagnosis exception. If either layer fails, the entire statement is inadmissible for the truth of what it asserts.

The analysis can involve more than two layers. A police report (public record) might contain a statement by a bystander (excited utterance) who is recounting what the victim said (dying declaration). Each of the three layers must independently qualify under an exception. The more layers there are, the more complex the analysis becomes, making this a favorite topic for evidence exams.