Hearsay Exceptions Cheat Sheet: Every Exception You Need for the Bar Exam

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. It is inadmissible unless an exception applies.

This is the most tested Evidence topic on the MBE and MEE. You need to know these exceptions cold.

Not Hearsay (FRE 801(d))

These are technically excluded from the definition of hearsay, not exceptions to it. The distinction matters on the bar exam.

Prior Statements by a Witness (801(d)(1))

A declarant-witness's prior statement is not hearsay if:

• Prior inconsistent statement given under oath at a prior proceeding (801(d)(1)(A))
• Prior consistent statement offered to rebut a charge of fabrication or improper motive (801(d)(1)(B))
• Prior identification of a person made after perceiving them (801(d)(1)(C))

The declarant must testify at the current trial and be subject to cross-examination.

Party-Opponent Admissions (801(d)(2))

A statement offered against a party that is:

• The party's own statement (801(d)(2)(A))
• An adoptive admission — the party manifested belief in the statement (801(d)(2)(B))
• A statement by an authorized spokesperson (801(d)(2)(C))
• A statement by an agent or employee on a matter within the scope of the relationship, made during the relationship (801(d)(2)(D))
• A statement by a co-conspirator during and in furtherance of the conspiracy (801(d)(2)(E))

Key point: Party-opponent admissions do NOT require that the statement was against interest when made. Do not confuse with the statement against interest exception (804(b)(3)), which does require that.

Exceptions — Unavailability NOT Required (FRE 803)

These exceptions apply regardless of whether the declarant is available to testify.

Present Sense Impression (803(1))

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Key: Contemporaneity. The statement must be made during or immediately after the event.

Excited Utterance (803(2))

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Key: The declarant must still be under the stress of the event. There is no strict time limit, but the longer the gap, the less likely the stress persists.

Distinction from PSI: PSI requires contemporaneity but no stress. EU requires stress but permits a time gap.

State of Mind (803(3))

A statement of the declarant's then-existing state of mind, emotion, sensation, or physical condition. Includes statements of intent, plan, motive, or design.

Key limitations:

• Forward-looking: "I plan to go to Chicago" — admissible to show the declarant went to Chicago
• Backward-looking: "I went to Chicago last week" — NOT covered by this exception
• Cannot be used to prove someone else's state of mind (Shepard v. United States)

Medical Diagnosis (803(4))

Statements made for purposes of medical diagnosis or treatment, describing medical history, past or present symptoms, pain, sensations, or the inception or general character of the cause or external source, insofar as reasonably pertinent to diagnosis or treatment.

Key: Includes statements to doctors consulted solely for litigation (the doctor does not need to be the treating physician). The cause of the injury is admissible if pertinent to diagnosis; fault is not.

Recorded Recollection (803(5))

A record that the witness made or adopted when the matter was fresh in their memory and that accurately reflects their knowledge. Admissible if the witness now has insufficient recollection to testify fully.

Key: The record is read into evidence but not received as an exhibit unless offered by the adverse party.

Business Records (803(6))

A record of an act, event, condition, opinion, or diagnosis, made at or near the time by someone with knowledge, kept in the course of a regularly conducted business activity, if making the record was a regular practice of that activity.

Requires: Foundation from a custodian or qualified witness, or by certification.

Exclusion: Does not apply if the source of information or circumstances indicate a lack of trustworthiness (e.g., records prepared specifically for litigation).

Public Records (803(8))

Records of a public office setting out the activities of the office, matters observed under a legal duty to report, or factual findings from a legally authorized investigation.

Criminal case limitation: In criminal cases, public records cannot be used against the defendant if they are matters observed by law enforcement (to prevent circumventing the Confrontation Clause).

Learned Treatises (803(18))

Statements from a published treatise, periodical, or pamphlet on a subject of history, medicine, science, or art, established as a reliable authority. May be read into evidence but not received as an exhibit.

Exceptions — Unavailability REQUIRED (FRE 804)

The declarant must be unavailable as a witness. Unavailability includes: privilege, refusal to testify despite a court order, lack of memory, death or illness, and absence when the proponent cannot procure attendance by process or other reasonable means.

Former Testimony (804(b)(1))

Testimony given at a prior proceeding or deposition if the party against whom it is offered (or a predecessor in interest) had an opportunity and similar motive to examine the witness.

Dying Declaration (804(b)(2))

A statement made by a declarant who believes their death is imminent, concerning the cause or circumstances of what the declarant believes to be their impending death.

Available in: Civil cases and homicide prosecutions. Not available in other criminal cases.

Statement Against Interest (804(b)(3))

A statement that was so contrary to the declarant's proprietary, pecuniary, or penal interest that a reasonable person would not have made it unless they believed it to be true.

Key distinction from party admissions: Requires unavailability AND the statement must have been against interest when made. Party admissions require neither.

Statement of Personal or Family History (804(b)(4))

Statements about the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

The Residual Exception (807)

A statement not covered by any other exception but having equivalent circumstantial guarantees of trustworthiness. Requires: the statement is more probative on the point than any other reasonably available evidence, and the proponent gives notice to the adverse party.

The Confrontation Clause

In criminal cases, even if a hearsay exception applies, the Confrontation Clause may bar the statement if it is testimonial and the declarant is unavailable and was not previously subject to cross-examination (Crawford v. Washington).

Testimonial statements include: prior testimony, affidavits, statements made during police interrogation for the primary purpose of establishing facts for later criminal prosecution.

Non-testimonial statements (made for the primary purpose of resolving an ongoing emergency) are not barred by the Confrontation Clause (Davis v. Washington).