Quick Tip: Hearsay Exceptions

Tommy Sangchompuphen
13 hours ago
4 min read

By now, you should now that hearsay isn’t a single-step analysis. It’s a three-part process:

1️⃣ Does the statement meet the definition of hearsay?

2️⃣ Does a hearsay exclusion apply?

3️⃣ Does a hearsay exception apply?

Only after answering "yes" to Step 1 (it is hearsay) and "no" to Step 2 (no exclusion applies) should you turn to Step 3: Determining whether the hearsay statement is admissible through an exception.

What Are Hearsay Exceptions?

Hearsay exceptions are specific situations in which hearsay may still be admissible, even though it meets the definition of hearsay and doesn’t qualify for exclusion under Rule 801(d).

The exceptions are found primarily in Rules 803 and 804 of the Federal Rules of Evidence.

Rule 803 exceptions apply regardless of whether the declarant is available or not.
Rule 804 exceptions apply only if the declarant is unavailable.

Understanding the difference between these categories is essential on the bar exam. You may lose points not because you misstate the rule, but because you forget to consider whether the declarant’s availability matters.

There are more than 20 hearsay exceptions across the rules—and they’re not all tested equally. Covering every one in a single post wouldn’t be practical. Instead, here are some of the most commonly tested hearsay exceptions that you should make sure you know inside and out.

Declarant’s Availability Is Immaterial (Rule 803)

Present Sense Impression (803(1))

A present sense impression is a statement that describes or explains an event or condition, made while or immediately after the declarant perceived it.

🤔 Tip: Timing is everything. The statement must be nearly simultaneous with the perception to qualify.

Excited Utterance (803(2))

An excited utterance relates to a startling event or condition and is made while the declarant is still under the stress or excitement caused by the event.

🤔 Tip: The key is that the declarant has not yet had time to reflect or fabricate. Also, be on the lookout for exclamation points in the statement—they often signal excitement and can support an excited utterance theory.

Then-Existing Mental, Emotional, or Physical Condition (803(3))

This exception includes statements that reflect the declarant’s current state of mind, emotion, sensation, or physical condition—such as intent, plan, motive, or feeling. These statements often help establish what the declarant was planning to do.

🤔 Tip: This exception does not include statements of memory or belief used to prove a past fact.

Statements for Medical Diagnosis or Treatment (803(4))

Statements made for the purpose of medical diagnosis or treatment qualify under this exception. These may include medical history, symptoms, or the general cause of a condition if reasonably pertinent to treatment.

🤔 Tip: Statements about fault—like who caused the injury—usually don’t qualify unless they are relevant to treatment (e.g., identifying an abuser in child abuse cases).

Business Records (803(6))

Records of regularly conducted business activity fall under this exception when made at or near the time by someone with knowledge, provided maintaining such records was a regular practice.

🤔 Tip: Records prepared in anticipation of litigation do not qualify, even if they resemble business records.

Declarant Must Be Unavailable (Rule 804)

Under Rule 804, a hearsay exception applies only if the declarant is considered "unavailable" to testify. Unavailability means more than just being absent from court. It includes situations where the declarant:

is exempted from testifying due to privilege,
refuses to testify despite a court order,
claims to have no memory of the subject matter,
is unable to be present due to death, illness, or infirmity, or
is absent and cannot be procured by reasonable means, such as subpoena or other legal process.

It’s important to assess unavailability before applying any Rule 804 exception—without it, the exception cannot be used.

Former Testimony (804(b)(1))

This exception applies if the declarant is unavailable and the testimony was given under oath in a prior proceeding. The party against whom it is now offered must have had an opportunity and similar motive to develop the testimony through examination.

🤔 Tip: The prior opportunity to examine must have been meaningful and in a setting with similar stakes or issues.

Dying Declarations (804(b)(2))

A dying declaration is admissible when the declarant is unavailable and believed death was imminent. The statement must relate to the cause or circumstances of the impending death. This exception is only allowed in homicide prosecutions and civil cases.

🤔 Tip: Don’t forget the limitation—this exception doesn't apply in non-homicide criminal cases. Also, the declarant doesn't actually have to die for the statement to qualify. What matters is that the declarant be unavailable. Of course, if the declarant is dead, then the declarant is unavailable. But there are other reasons why the declarant could be unavailable*—and still living.*

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

This applies when the declarant is unavailable and the statement, at the time it was made, was so against their own pecuniary, proprietary, or penal interest that a reasonable person would not have made it unless they believed it to be true. These categories refer to statements that would subject the declarant to financial harm, loss of property rights, or criminal liability.

🤔 Tip: The statement must have been against interest when made—statements that only seem harmful in hindsight won’t qualify.

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