Hearsay exceptions are one of the most heavily tested areas of Evidence on the bar exam. Many questions turn on whether a hearsay statement qualifies under a specific exception.
Understanding the most common exceptions—and when they apply—can make these questions predictable.
What Are Hearsay Exceptions?
Hearsay is generally inadmissible, but there are many exceptions that allow statements to be admitted even if they are offered for their truth.
On the bar exam, the key is recognizing which exception applies based on the facts.
Step 1: Identify the Type of Statement
The first step is identifying what kind of statement is being offered.
Key factors include:
• When the statement was made
• Who made the statement
• The purpose of the statement
These details determine which exception may apply.
Step 2: Common Hearsay Exceptions Tested on the Bar Exam
Several exceptions appear frequently:
Present Sense Impression
A statement describing an event made while or immediately after the event.
Excited Utterance
A statement made under the stress of excitement caused by a startling event.
Present sense impression and excited utterance are frequently tested together, and the key difference is whether the declarant had time to reflect before making the statement.
Example: A person screams “That car just ran the red light!” immediately after witnessing an accident. Because the statement was made under stress, it may qualify as an excited utterance.
Statements for Medical Diagnosis or Treatment
Statements made for the purpose of obtaining medical care.
Business Records
Records made in the regular course of business.
Statements by a Party Opponent
Statements made by a party and offered against that party.
Each exception has specific requirements, and small factual differences can change the outcome.
Step 3: Apply the Exception to the Facts
Hearsay questions are highly fact-specific.
Carefully analyze:
• Timing of the statement
• Whether the declarant had time to reflect
• The purpose of the statement
These factors determine whether the exception applies.
Common Exam Traps
Hearsay exception questions often include traps such as:
• Confusing similar exceptions (e.g., present sense impression vs excited utterance)
• Ignoring timing requirements
• Misunderstanding the purpose of the statement
Careful reading is essential.
How Hearsay Exceptions Are Tested on the Bar Exam
Hearsay exception questions typically follow a predictable structure:
• Is it hearsay?
• If yes, which exception applies?
On essays, clearly identify the exception and explain why it applies. On multiple-choice questions, focus on key facts like timing and purpose.
If you need a refresher on what qualifies as hearsay, start with our hearsay overview before diving into exceptions.