Hearsay is one of the most heavily tested topics in Evidence on the bar exam. Many questions turn on whether a statement qualifies as hearsay and whether an exception applies.
Understanding the structure of hearsay analysis is essential for success.
What Is Hearsay?
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
If a statement fits this definition, it is generally inadmissible unless an exception applies.
Step 1: Determine Whether the Statement Is Hearsay
The first step is identifying whether the statement is being offered for its truth.
If the statement is not offered for its truth, it is not hearsay.
Common non-hearsay purposes include:
• Effect on the listener
• Verbal acts
• Statements showing state of mind
Step 2: Identify Exclusions and Exceptions
If the statement is hearsay, determine whether an exclusion or exception applies.
Common bar exam categories include:
• Statements by a party opponent
• Prior inconsistent statements
• Present sense impressions
• Excited utterances
• Statements for medical diagnosis or treatment
Each category has specific requirements.
Step 3: Apply the Rule to the Facts
Hearsay questions are highly fact-specific.
Carefully analyze:
• Who made the statement
• When it was made
• Why it is being offered
These details determine admissibility.
Common Exam Traps
Hearsay questions often include traps such as:
• Assuming a statement is offered for its truth
• Misidentifying the applicable exception
• Ignoring key factual details
Careful reading is essential.
How Hearsay Is Tested on the Bar Exam
Hearsay questions typically follow a predictable structure:
• Is it hearsay?
• If yes, does an exception apply?
On essays, clearly walk through each step. On multiple-choice questions, focus on why the statement is being offered and whether it fits an exception.
Want a more structured breakdown? Explore UBEazy’s study guides and practice questions.