Quick Tip: Hearsay Exclusions

When you spot a potential hearsay issue on the MBE or in an essay, your analysis should follow a structured, three-step approach:

1️⃣ Does the statement meet the definition of hearsay?

2️⃣ Does a hearsay exclusion apply?

3️⃣ Does a hearsay exception apply?

This post focuses on Step 2. If the statement does meet the definition of hearsay under Rule 801(c), don’t jump straight to exceptions. First, ask whether the Federal Rules of Evidence have expressly carved out certain types of statements as not hearsay to begin with. These are known as hearsay exclusions under Rule 801(d). If a statement falls into one of these categories, it’s considered "nonhearsay" and is admissible without needing an exception.

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There are four major exclusions you need to know cold:

1. Prior Inconsistent Statements (801(d)(1)(A))

These are statements made by a declarant who testifies at trial and is subject to cross-examination about the prior statement. To qualify:

✅ The prior statement must be inconsistent with their in-court testimony.

✅ It must have been made under penalty of perjury at a prior proceeding (like a deposition or grand jury).

These are excluded from hearsay because they go directly to the credibility and truthfulness of a testifying witness who can be cross-examined in real time.

2. Prior Consistent Statements (801(d)(1)(B))

These statements also are admissible as nonhearsay when:

✅ The declarant testifies and is subject to cross-examination,

✅ And the prior consistent statement is being offered to rebut a charge of recent fabrication or improper motive.

This restores credibility by showing the witness said the same thing before any alleged motive to lie existed.

3. Prior Statements of Identification (801(d)(1)(C))

These are statements identifying a person as someone the declarant perceived earlier. To qualify:

✅ The declarant must testify at the trial or hearing, and

✅ Be subject to cross-examination about the statement.

These are often seen in eyewitness cases. The rationale? Identification made closer in time to the event is more reliable than an in-court ID, and the ability to cross-examine the declarant gives the opposing party a fair opportunity to challenge it.

4. Statements by an Opposing Party (801(d)(2))

These are often referred to as "party admissions," but they don’t have to be "admissions" in the everyday sense. These statements are:

✅ Offered against the opposing party, and

✅ Were made by that party (or someone acting on their behalf, such as an agent, coconspirator, or authorized spokesperson).

These are not hearsay because it’s fair to hold people to their own words when used against them at trial.

So Why Are These Statements Considered Exclusions Rather Than Exceptions?

It's important that you make the distinctions between exclusions and exceptions. Statements falling under Rule 801(d) aren't technically hearsay at all under the Rules.

Think of it this way: Exclusions pull certain statements out of the hearsay universe entirely, clearing a faster path to admissibility.

See also: "Quick Tip: Definition of Hearsay" (June 14, 2025)