Rule 802

Hearsay Rule

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

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Note (Federal Judicial Center)

The rule enacted by the Congress is the rule prescribed by the Supreme Court, amended by substituting "prescribed" in place of "adopted" and by inserting the phrase "pursuant to statutory authority."

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Advisory Committee’s Note

The provision excepting from the operation of the rule hearsay which is made admissible by other rules adopted by the Supreme Court or by Act of Congress continues the admissibility thereunder of hearsay which would not qualify under these Evidence Rules. The following examples illustrate the working of the exception:

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Federal Rules of Civil Procedure

Rule 4(g): proof of service by affidavit.

Rule 32: admissibility of depositions.

Rule 43(e): affidavits when motion based on facts not appearing of record.

Rule 56: affidavits in summary judgment proceedings.

Rule 65(b): showing by affidavit for temporary restraining order.

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Federal Rules of Criminal Procedure

Rule 4(a): affidavits to show grounds for issuing warrants.

Rule 12(b)(4): affidavits to determine issues of fact in connection with motions.

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Acts of Congress

10 U.S.C. 7730: affidavits of unavailable witnesses in actions for damages caused by vessel in naval service, or towage or salvage of same, when taking of testimony or bringing of action delayed or stayed on security grounds.

U.S.C. 161(4): affidavit as proof of service in NLRB proceedings.

38 U.S.C. 5206: affidavit as proof of posting notice of sale of unclaimed property by Veterans Administration.


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