Evidence · Hearsay Exceptions Available

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MBE Evidence: Hearsay Exceptions Available

An overview of hearsay exceptions available under the Evidence subject for MBE preparation.

Overview

Hearsay refers to an out-of-court statement offered to prove the truth of the matter asserted. The law recognizes certain exceptions to the hearsay rule, allowing such statements to be admissible in court under specific circumstances. Understanding these exceptions is crucial for bar exam takers as they frequently appear in various fact patterns on the MBE, testing a candidate's ability to differentiate between permissible and non-permissible hearsay statements.

Common hearsay exceptions include statements made under the belief of impending death, present sense impressions, excited utterances, business records, and statements against interest. Additionally, some exceptions do not require the declarant to be unavailable, while others do, which adds complexity to the analysis of hearsay evidence on the exam. Mastering these exceptions enables students to navigate MBE questions effectively and determine the admissibility of various hearsay statements encountered in practice.

Key Rules
  1. 1. Hearsay is not admissible unless an exception applies.
  2. 2. Excited utterance: A statement made while under the stress of excitement caused by a startling event is admissible.
  3. 3. Present sense impression: A statement describing an event made while the declarant perceived it is admissible.
  4. 4. Records of regularly conducted activity (business records) can be admitted if certain conditions are met, such as the record being made at or near the time of the event.
  5. 5. Statement against interest is admissible if the declarant was unavailable and the statement was against their pecuniary or penal interest when made.
  6. 6. Dying declaration: A statement made by a declarant who believes they are about to die, concerning the cause or circumstances of their impending death, is admissible in homicide or civil cases.
  7. 7. Statement of personal or family history is admissible if made by a family member or someone intimately acquainted with the family.
  8. 8. Prior consistent statements may be admissible to rebut charges of fabrication or inconsistency.
Common Question Patterns
  • 1. Determining whether a statement falls under a specific hearsay exception.
  • 2. Evaluating the necessity of a declarant's availability for a hearsay exception to apply.
  • 3. Analyzing fact patterns to identify admissible vs. inadmissible evidence based on hearsay rules.
Practice Questions

1. During a trial, a witness testified that she heard a loud crash from her apartment and immediately saw her neighbor's car had been struck. She later stated, 'I felt it in my bones that he was going too fast.' Is this statement admissible?

A. A) Yes, as an excited utterance.(Correct)

B. B) Yes, as a prior consistent statement.

C. C) No, because it's speculative.

D. D) No, because it's hearsay.

Explanation: This statement is admissible as an excited utterance, made in response to a startling event.

2. A busy restaurant owner records the daily number of patrons in a logbook. If called as a witness, can the owner testify about the contents of this logbook even if the logbook is not available?

A. A) Yes, since it's a business record.(Correct)

B. B) No, because business records must always be produced.

C. C) Yes, but only with the logbook produced.

D. D) No, unless the owner testifies to the reasons for its absence.

Explanation: The owner's testimony is admissible under the business records exception, as long as the record was made at or near the time of the event and is kept in the regular course of business.

3. A woman is on trial for murder. One of her friends, who died before the trial, had said, 'If I die, it was definitely her.' Is this statement admissible?

A. A) Yes, as a statement against interest.

B. B) No, because it is hearsay.

C. C) Yes, as a dying declaration.(Correct)

D. D) No, because the friend is unavailable.

Explanation: This statement is admissible as a dying declaration concerning the cause of the friend's impending death.

4. In a defamation case, a plaintiff wants to introduce a social media post in which a friend states, 'I saw her steal from the store!' Is that statement admissible under hearsay rules?

A. A) Yes, as an excited utterance.

B. B) Yes, because it is a statement against interest.

C. C) No, as it is hearsay and doesn't fall under an exception.(Correct)

D. D) Yes, because the friend is a witness.

Explanation: This statement is considered hearsay and does not fall under any exceptions as it is used to prove the truth of the matter asserted.

5. A father tells his child, 'If I'm not home by 5 PM, I'll be late.' Later, the father is late, and the child testifies about the statement. Is this statement admissible?

A. A) Yes, it's a present sense impression.

B. B) No, it's hearsay because he's not present.(Correct)

C. C) Yes, it's a prior consistent statement.

D. D) No, it needs to be part of the child's family history.

Explanation: This statement is hearsay since it's being offered to assert the truth of the father's implied lateness and does not fall within any hearsay exception.

Test-Taking Tips
  • 1. Familiarize yourself with both the non-hearsay uses of statements and the exceptions to the hearsay rule.
  • 2. Analyze fact patterns carefully to identify whether the required conditions for exceptions are met.
  • 3. Practice applying rules to various fact scenarios to strengthen your reasoning skills on the MBE.
  • 4. Pay attention to the terms of the question; qualifiers like 'available' and 'unavailable' can indicate which exceptions may apply.
  • 5. Keep track of commonly tested hearsay exceptions through flashcards or summary sheets.

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