Hearsay
The most tested doctrine on the MBE, period. It's really four questions in a row: is it hearsay at all, is it defined out, does the Constitution block it, and does an exception let it in?
The four questions, in order
An out-of-court statement is offered
Written, spoken, or assertive conduct.
Is it offered to prove the truth of the matter asserted?
Not hearsay. Verbal acts, effect on the listener, state of mind, impeachment—admissible.
Does an 801(d) exemption define it out?
“Not hearsay” by definition—declarant-witness prior statements, opposing-party statements.
Criminal case—does the Confrontation Clause block it?
Out—testimonial statement, unavailable declarant, no prior cross (Crawford). Even a perfect exception can't save it.
Does an exception fit—803, 804, or 807?
Admissible hearsay.
Inadmissible hearsay
Objection sustained.
The definition
Hearsay = an out-of-court statement by a declarant, offered to prove the truth of the matter asserted. A “statement” is a written or spoken assertion—or conduct intended as one (a nod, a point). Conduct not meant to communicate isn't a statement at all.
Liv opens her umbrella outside the café. Offered to prove it was raining, that's non-assertive conduct—no statement, no hearsay problem. But if Liv pointed at Rosa when police asked who did it, the point is an assertion.
Not for its truth: the non-hearsay purposes
| Purpose | Why it's not hearsay | 🐚 Example |
|---|---|---|
| Verbal act | The words have independent legal force—offer, acceptance, gift, defamation | Liv's “I'll sell you my bike for $100” proves the offer was made, true or not |
| Effect on listener | Offered to show notice, fear, or motive—not that the words are true | Noodle told Rosa “the brakes feel off”—offered to show Rosa was on notice |
| State of mind (circumstantial) | Shows the declarant's belief or knowledge, not the fact asserted | Lana's “I am the Queen of the Sea” offered to show Lana's confusion, not her royalty |
| Impeachment | Offered only to show the witness said something different before | Lana previously lied under oath about Liv's alibi—offered against her credibility |
Defined out: the 801(d) exemptions
Declarant-witness prior statements—the declarant testifies now and is subject to cross. Only three flavors: a prior inconsistent statement given under oath at a proceeding; a prior consistent statement to rebut a charge of recent fabrication or improper motive; and a prior identification.
Opposing-party statements—anything the opposing party said, offered against them. No firsthand-knowledge or against-interest requirement. Includes statements they adopted (even by silence), authorized, made by their agent/employee on a matter within the scope of employment, or by a coconspirator during and in furtherance of the conspiracy.
Rosa offers Liv's text, “I hit your car”—opposing-party statement, in. The UPS driver's on-the-job “our truck hit her car” binds UPS. And Lana's testimony that she picked Rosa out of the lineup comes in substantively as a prior identification.
The 803 exceptions—declarant's availability irrelevant
| Exception | The test | 🐚 Example |
|---|---|---|
| Present sense impression | Describes an event while or immediately after perceiving it | “There goes Liv's van, swerving all over Shell Lane”—said as it happened |
| Excited utterance | Relates to a startling event, made under the stress of the excitement | Liv screams, “that crane is about to fall!” |
| Then-existing state of mind | Declarant's current intent, motive, plan, or condition (not memory of past facts) | “I'm driving to New York this weekend” proves Liv's plan—and that she likely went |
| Medical diagnosis or treatment | Made for diagnosis/treatment and pertinent to it—cause OK, fault not | Liv tells Dr. Noodle she was “seeing stars” after the crash—in; “Rosa ran the light” is not pertinent |
| Recorded recollection | Witness once knew, now can't recall; record made fresh; may be read, not received as an exhibit (unless the adversary offers it) | Lana's contemporaneous notes of the license plate, read to the jury |
| Business records | Made at/near the time, by someone with knowledge, kept in the regular course—no litigation-prep records | Rosa's café keeps delivery logs daily; the log comes in through the custodian |
| Public records | Office's own activities or matters observed under duty—but not police observations against a criminal defendant | The DMV's registration record; not the officer's report offered against Liv at her trial |
The 804 exceptions—declarant must be unavailable
Unavailable means: privilege, refusal despite a court order, lack of memory, death or illness, or absence beyond the court's process. Unavailability is about the witness, not the statement—and it can't be procured by the offering party's wrongdoing.
| Exception | The test | 🐚 Example |
|---|---|---|
| Former testimony | Testimony from a trial, hearing, or deposition; the party it's offered against had opportunity and similar motive to develop it | Liv's deposition testimony from this same case, after she flees the jurisdiction |
| Dying declaration | Homicide or civil case only; declarant believed death imminent; statement about its cause or circumstances (survival OK—unavailability still required) | Noodle, believing the end is near, whispers “Liv poisoned my espresso” |
| Statement against interest | So contrary to the declarant's pecuniary or penal interest no reasonable person would say it falsely; criminal-exposure statements need corroboration | Rosa's “the faulty wiring was my fault, I skipped the inspection” |
| Family history | Declarant's own birth, marriage, ancestry, and the like | Great-aunt Lana's letter recounting the family adoption |
| Forfeiture by wrongdoing | The party wrongfully made the declarant unavailable, intending to | Liv bribes the witness to skip town—Liv forfeits the objection to the witness's statements |
The constitutional overlay
Confrontation Clause (Crawford v. Washington): in a criminal case, a testimonial statement—made to build a case (stationhouse questioning, affidavits, lab certificates)—can't come in against the accused unless the declarant testifies or the defendant had a prior chance to cross-examine. Statements to resolve an ongoing emergency (a frantic 911 call) are non-testimonial (Davis v. Washington). Dying declarations and forfeiture survive.
Order of operations on the MBE: truth-purpose first (many “hearsay” answers die there), then 801(d), then—criminal cases only—Confrontation, then 803 vs. 804 (ask: does this exception need an unavailable declarant?). The 807 residual exception is real but almost never the credited answer.
Where the points are
The traps examiners actually set.
- Most tested
- Effect-on-listener vs. truth; excited utterance vs. present sense impression (stress vs. immediacy); opposing-party statements needing no exception; former testimony's similar-motive requirement; testimonial statements under Crawford.
- Classic traps
- A prior inconsistent statement not under oath offered substantively (impeachment only); “I intend to…” used to prove someone else's conduct; medical statements assigning fault; police reports against criminal defendants; dying declarations in non-homicide criminal cases; treating unavailability as making everything admissible.
Keep going: Dying Declarations quick chat Hearsay flowchart Evidence Attack Sequences Hearsay & Confrontation MEE guide