Hearsay and circumstances of its admissibility - Other exceptions to the hearsay rule

Learning Outcomes

After reading this article, you will be able to identify and apply the main hearsay exceptions not dependent on the declarant’s availability, including business records, public records, present sense impression, excited utterance, and others. You will be able to distinguish these exceptions from the general hearsay rule and select the correct exception in MBE-style questions.

MBE Syllabus

For MBE, you are required to understand the circumstances in which hearsay is admissible under exceptions other than those for unavailable declarants. This article covers:

  • Recognizing hearsay exceptions that apply regardless of the declarant’s availability.
  • Identifying and applying the business records exception.
  • Applying the public records exception and understanding its limitations.
  • Distinguishing present sense impression and excited utterance exceptions.
  • Understanding the rationale and requirements for other key exceptions (e.g., statements for medical diagnosis, learned treatises).
  • Evaluating whether evidence falls within an exception on MBE questions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is NOT a requirement for the business records exception to hearsay?
    1. The record was made at or near the time of the event.
    2. The record was made by someone with personal knowledge.
    3. The record was prepared in anticipation of litigation.
    4. The record was kept in the regular course of business.
  2. A witness testifies, “While watching the accident, my friend said, ‘That blue car just ran the red light!’” Which hearsay exception is most likely to apply?
    1. Present sense impression
    2. Statement against interest
    3. Former testimony
    4. Public records
  3. Which of the following is generally NOT admissible under the public records exception in a criminal case against the defendant?
    1. The agency’s record of its own activities
    2. Factual findings from an agency investigation offered by the prosecution
    3. Observations of the agency’s employees
    4. Records of routine administrative matters

Introduction

Hearsay is generally inadmissible unless an exception applies. The Federal Rules of Evidence provide several exceptions that allow hearsay to be admitted even when the declarant is available to testify. These exceptions are frequently tested on the MBE and require careful attention to their requirements and limitations.

Key Term: Hearsay Exception
A rule that allows certain out-of-court statements to be admitted for their truth, even though they would otherwise be excluded as hearsay.

Hearsay Exceptions: Declarant’s Availability Immaterial

Many of the most commonly tested exceptions do not require the declarant to be unavailable. These include business records, public records, present sense impression, excited utterance, statements for medical diagnosis or treatment, learned treatises, and others.

Business Records Exception

The business records exception is one of the most frequently tested. A record of an act, event, condition, opinion, or diagnosis is admissible if:

  • It was made at or near the time by someone with knowledge,
  • It was kept in the regular course of a regularly conducted business activity,
  • Making the record was a regular practice of that activity,
  • All these conditions are shown by the testimony of a custodian or qualified witness,
  • Neither the source of information nor the method or circumstances indicate a lack of trustworthiness.

Key Term: Business Records Exception
A hearsay exception allowing records of regularly conducted business activity to be admitted if certain conditions are met.

Public Records Exception

Records or reports of a public office or agency are admissible if they set out:

  • The office’s activities,
  • A matter observed while under a legal duty to report (but not observations by law enforcement in criminal cases against the accused),
  • Factual findings from a legally authorized investigation (but not against the accused in a criminal case).

Key Term: Public Records Exception
A hearsay exception for records of public offices or agencies, subject to important limitations in criminal cases.

Present Sense Impression and Excited Utterance

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

An excited utterance is a statement relating to a startling event or condition, made while the declarant was under the stress of excitement caused by the event.

Key Term: Present Sense Impression
A hearsay exception for statements describing an event made during or immediately after the event.

Key Term: Excited Utterance
A hearsay exception for statements about a startling event made while under the stress of excitement.

Statements for Medical Diagnosis or Treatment

Statements made for—and reasonably relevant to—medical diagnosis or treatment are admissible if they describe medical history, past or present symptoms, or the cause or source of the condition, as long as they are made for purposes of diagnosis or treatment.

Key Term: Statement for Medical Diagnosis or Treatment
A hearsay exception for statements made to obtain medical diagnosis or treatment, including statements about cause.

Learned Treatises

Statements from a learned treatise may be read into evidence (but not received as exhibits) if:

  • The treatise is established as a reliable authority,
  • It is called to the attention of an expert witness on direct or cross-examination,
  • The statement is relevant to the subject matter of the expert’s testimony.

Key Term: Learned Treatise
A hearsay exception allowing statements from authoritative works to be read into evidence if relied on by an expert.

Other Key Exceptions

  • Recorded Recollection: If a witness cannot recall a matter, a record made or adopted by the witness when the matter was fresh in memory may be read into evidence.
  • Reputation: Statements about reputation concerning character, family history, or boundaries may be admissible.
  • Judgments of Previous Conviction: Certified judgments of felony convictions may be admissible to prove any fact essential to the judgment.

Worked Example 1.1

A delivery driver is injured at work. The employer’s accident report, made by the supervisor the same day and kept in the company’s regular files, states that the driver slipped on oil in the warehouse. At trial, the driver offers the report to prove the cause of the injury. Is the report admissible?

Answer: Yes. The report was made at or near the time of the event, by someone with knowledge, as part of the employer’s regular business practice. It qualifies under the business records exception.

Worked Example 1.2

A police officer investigates a car accident and writes a report with factual findings. In a criminal prosecution against the driver, the prosecution offers the report. Is it admissible under the public records exception?

Answer: No. In a criminal case, factual findings from a law enforcement investigation are not admissible against the accused under the public records exception.

Worked Example 1.3

A patient tells her doctor, “I was hit by a red truck at the intersection.” The doctor records this in the medical chart. Is the statement admissible to prove the cause of the injury?

Answer: Yes. The statement was made for purposes of medical diagnosis or treatment and describes the cause of the injury, so it falls within the exception.

Exam Warning

In criminal cases, police reports and investigative findings are generally inadmissible against the defendant under the public records exception. Do not confuse this with civil cases, where such findings may be admissible.

Revision Tip

Always check whether the record was prepared in anticipation of litigation. Records made primarily for litigation do not qualify as business records.

Key Point Checklist

This article has covered the following key knowledge points:

  • Hearsay exceptions allow certain out-of-court statements to be admitted even if the declarant is available.
  • The business records exception requires records made in the regular course of business, at or near the time, by someone with knowledge.
  • The public records exception covers agency records of activities, observations, and factual findings, but excludes law enforcement findings against the accused in criminal cases.
  • Present sense impression and excited utterance exceptions admit statements made during or soon after an event.
  • Statements for medical diagnosis or treatment are admissible if made for that purpose and describe symptoms or cause.
  • Learned treatises may be read into evidence if relied on by an expert and established as reliable authority.
  • Some exceptions (e.g., business records, public records) require a showing that the record is trustworthy and not prepared for litigation.

Key Terms and Concepts

  • Hearsay Exception
  • Business Records Exception
  • Public Records Exception
  • Present Sense Impression
  • Excited Utterance
  • Statement for Medical Diagnosis or Treatment
  • Learned Treatise
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