Hearsay and circumstances of its admissibility - Other excep...

Learning Outcomes

This article explains hearsay exceptions where the declarant’s availability is immaterial, including:

• Identifying when an out-of-court statement is hearsay, when it is non-hearsay, and when an availability-immaterial exception must be invoked.
• Applying the business records and public records exceptions, recognizing their foundational requirements, trustworthiness limits, and special restrictions in criminal cases.
• Distinguishing present sense impression, excited utterance, and state-of-mind exceptions based on timing, stress, and the type of fact each statement may prove.
• Using statements for medical diagnosis or treatment, learned treatises, and recorded recollection to admit otherwise hearsay statements through witnesses and experts at trial.
• Recognizing additional availability-immaterial exceptions—reputation evidence and judgments of previous conviction—and differentiating their substantive use from impeachment use of convictions.
• Spotting common MBE traps involving double hearsay inside business or public records, police and forensic reports offered against criminal defendants, and apparent exceptions that are nevertheless excluded by lack of trustworthiness or the Confrontation Clause.
• Developing a structured exam approach: classify the statement, test for exclusions, match the correct hearsay exception, and then check for any constitutional bar.

MBE Syllabus

For the MBE, you are required to understand when hearsay is admissible under exceptions that do not depend on the declarant’s unavailability, with a focus on the following syllabus points:

• Distinguishing hearsay from non-hearsay uses (effect on listener, verbal acts, etc.).
• Recognizing hearsay exceptions that apply regardless of the declarant’s availability.
• Applying the business records exception and related trustworthiness limits.
• Applying the public records exception and understanding its special limits in criminal cases.
• Distinguishing and applying present sense impression, excited utterance, and state-of-mind exceptions.
• Using statements for medical diagnosis or treatment and learned treatises at trial.
• Applying other availability-immaterial exceptions (recorded recollection, reputation, prior convictions).
• Evaluating whether evidence fits a particular exception and whether any additional constitutional bar (e.g., Confrontation Clause) applies.

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 an out-of-court statement offered to prove the truth of what it asserts. Under the Federal Rules of Evidence (FRE), hearsay is inadmissible unless an exception or exclusion applies.

Key Term: Hearsay
An out-of-court statement offered to prove the truth of the matter asserted in the statement (FRE 801(c)).

Key Term: Hearsay Exception
A rule that permits certain hearsay statements to be admitted for their truth because circumstances substitute for in-court cross-examination.

Some exceptions require the declarant to be unavailable (e.g., dying declarations, statements against interest). This article focuses on the heavily tested group where the declarant’s availability does not matter.

Key Term: Availability‑Immaterial Hearsay Exception
A hearsay exception that applies whether or not the declarant testifies at trial (FRE 803), such as business records, public records, and spontaneous statements.

On MBE questions, work systematically:

1. Is there an out-of-court statement?
2. Is it being offered for its truth (as opposed to effect on listener, notice, or verbal act)?
3. If yes, is it excluded from the hearsay definition (e.g., party admission, prior inconsistent statement under oath)?
4. If it is hearsay, does it fit any exception, including those where availability is immaterial?
5. In a criminal case, even if an exception applies, is there a separate Confrontation Clause problem because the statement is testimonial?

Hearsay Exceptions: Declarant’s Availability Immaterial

Many of the most commonly tested exceptions fall under FRE 803 and do not require the declarant to be unavailable. The most important for the MBE are:

• Business records (FRE 803(6))
• Public records (FRE 803(8))
• Present sense impression (FRE 803(1))
• Excited utterance (FRE 803(2))
• State-of-mind statements (FRE 803(3))
• Statements for medical diagnosis or treatment (FRE 803(4))
• Recorded recollection (FRE 803(5))
• Learned treatises (FRE 803(18))
• Reputation and certain judgments of conviction (FRE 803(19)–(22))

The rest of this article walks through these exceptions, their elements, and the main exam traps.

Business Records Exception

The business records exception is one of the most frequently tested.

Key Term: Business Records Exception
A hearsay exception allowing records of regularly conducted business activity to be admitted if specific predicate requirements are met and the record appears trustworthy.

A record of an act, event, condition, opinion, or diagnosis is admissible if:

• It was made at or near the time of the event,
• By, or from information transmitted by, someone with knowledge,
• The record was kept in the course of a regularly conducted business activity,
• Making that type of record was a regular practice of that activity,
• These conditions are shown by a custodian or other qualified witness, or by certification, and
• Neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Key points to unpack for the exam:

• Business broadly defined: Includes any regularly conducted activity—companies, hospitals, schools, nonprofits, even government agencies (though public records also have a separate rule).
• Timing: “At or near the time” means contemporaneous or soon after, while the information is still fresh.
• Personal knowledge and duty to report: The information must come from someone with personal knowledge who had a business duty to transmit it. Outsider statements inside a business record (e.g., customer statements) are an extra layer of hearsay and need their own exception (such as a party admission).
• Not prepared for litigation: Records created primarily in anticipation of litigation, rather than as part of routine operations, generally do not qualify.

Exam trap: A police report describing an accident is rarely a proper business record in a criminal case. Even if some elements of 803(6) are met, the public-records rule and Confrontation Clause usually block its use against the accused.

In addition to using records to prove what happened, FRE 803(7) allows the absence of a record where one would normally be kept to prove that an event did not occur (for example, no entry in the log showing that a payment was made).

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 an employee with knowledge and a business duty to report, as part of the employer’s regular business practice. Nothing suggests it was prepared mainly for litigation, and the opponent can try to show lack of trustworthiness. It qualifies under the business records exception.

Worked Example 1.2

A company’s safety director investigates a serious accident and, at the request of in‑house counsel, prepares a one‑off “special report” solely for the legal department to evaluate potential lawsuits. The plaintiff offers that report as a business record. Should it be admitted?

Answer:
Likely no. A document prepared mainly in anticipation of litigation, rather than as part of routine, regularly conducted activity, is not a business record. The “special” nature and the involvement of counsel suggest a lack of the regularity and trustworthiness that justify the exception.

Revision Tip

Always ask: Was this type of document routinely made for operational reasons, or was it created specially once someone was already thinking about litigation?

Public Records Exception

Key Term: Public Records Exception
A hearsay exception for certain records or reports of public offices or agencies, subject to important limitations in criminal cases (especially for law-enforcement records).

Under FRE 803(8), a record or statement of a public office is admissible if it sets out:

• The office’s activities (e.g., DMV records, jail logs), or
• A matter observed under a legal duty to report (e.g., fire inspector’s report), or
• Factual findings from a legally authorized investigation (e.g., agency investigative report),

and the opponent does not show that the source or circumstances indicate a lack of trustworthiness.

There are important criminal-law limits:

• Against the defendant in a criminal case, the prosecution generally may not use:
  • Law-enforcement observations in police reports, or
  • Investigative factual findings from law-enforcement or similar agencies.
• The defense, however, may use such reports under 803(8) if they otherwise qualify and are trustworthy.

Exam Warning

In a criminal case, a police accident report or investigative report is not admissible under the public records exception against the accused. Do not allow the prosecution to smuggle it in under either the public-records or business-records exception.

Worked Example 1.3

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 cannot be used against the accused under the public records exception. The officer must testify and be subject to cross-examination.

Worked Example 1.4

In a civil products-liability case, the plaintiff offers a detailed report prepared by a federal safety agency after investigating a series of accidents involving the same machine model. The report contains factual findings and conclusions. Is it likely admissible?

Answer:
Yes. Factual findings from a legally authorized investigation by a public agency are admissible in civil cases under 803(8), unless the opponent shows a lack of trustworthiness (for example, bias, incomplete investigation, or internal inconsistency).

Present Sense Impression and Excited Utterance

Present sense impressions and excited utterances are “spontaneous” statements. The MBE often tests your ability to tell them apart.

Key Term: Present Sense Impression
A hearsay exception for a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Key Term: Excited Utterance
A hearsay exception for a statement relating to a startling event or condition, made while the declarant is under the stress of excitement caused by the event or condition.

Present sense impression (PSI) (FRE 803(1)):

• Describes or explains an event or condition.
• Is made while the declarant is perceiving the event or “immediately thereafter” (seconds or, at most, a very short time later).
• Does not require that the event be startling.

Excited utterance (FRE 803(2)):

• Relates to a startling event or condition.
• Is made while the declarant is still under the stress of excitement caused by that event.
• The time span can be longer than for PSI; the key is continued stress, not the clock.

Worked Example 1.5

A witness testifies, “While watching the accident, my friend said, ‘That blue car just ran the red light!’” Which exception fits best?

Answer:
Present sense impression. The friend’s statement described the event as he perceived it. There is no explicit evidence of stress, so PSI is the cleaner fit than excited utterance.

Exam Tip
If the fact pattern emphasizes a calm description made as the event unfolds, think present sense impression. If it emphasizes shock, fear, or shouting, think excited utterance.

State-of-Mind Exception

Key Term: State of Mind Exception
A hearsay exception for statements of the declarant’s then‑existing mental, emotional, or physical condition (e.g., intent, motive, plan, pain), used to prove that condition or, in some cases, subsequent conduct consistent with that state of mind.

Under FRE 803(3), statements about the declarant’s then-existing mental, emotional, or physical condition are admissible, such as:

• Intent, plan, or motive (“I plan to go to Cleveland tomorrow.”)
• Emotion (“I’m terrified of my neighbor.”)
• Physical condition (“My head is pounding right now.”)

These statements can be used to prove the condition itself, and intent statements can be used to infer later conduct consistent with the stated intent (e.g., that the person did, in fact, go to Cleveland).

Limitations:

• Statements of memory or belief about past events are generally excluded under this exception (“Last week I was at fault in the crash.”).
• There is a narrow exception for statements of memory or belief related to the terms or validity of a will.

The state-of-mind exception often appears in MBE questions involving:

• Proving a testator’s mental condition.
• Proving a victim’s fear or lack of intent.
• Proving that a person later acted in line with a stated plan.

Statements for Medical Diagnosis or Treatment

Key Term: Statement for Medical Diagnosis or Treatment
A hearsay exception for statements made for—and reasonably related to—medical diagnosis or treatment, describing medical history, symptoms, or the general cause of the condition.

Under FRE 803(4), statements are admissible if:

• They are made for the purpose of obtaining medical diagnosis or treatment, and
• They describe medical history, past or present symptoms, sensations, or the general cause of the condition, and
• The information is reasonably related to diagnosis or treatment.

Important nuances:

• The statement can be made by the patient or by someone seeking treatment on the patient’s behalf (e.g., a parent describing a child’s symptoms).
• Statements about cause (e.g., “I was hit by a car” or “I fell off a ladder”) are usually admissible; statements about fault (e.g., “the driver ran a red light” or “my employer failed to fix the ladder”) typically are not, because fault is not medically relevant.
• In some child‑abuse cases, courts have held that identifying the abuser may be “reasonably related” to treatment (e.g., safety planning), so the identity may come in.

Key Term: Learned Treatise
A hearsay exception allowing statements from a reliable scientific, medical, or technical publication to be read into evidence if an expert witness relies on the work or is confronted with it on cross-examination.

Worked Example 1.6

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 (“hit by a truck”). The specific color of the truck is mostly irrelevant, but the overall description of the cause fits the exception. The statement does not go into blame or fault.

Learned Treatises

Statements from learned treatises are hearsay, but under FRE 803(18) they can be read to the jury as substantive evidence if:

• The writing is established as a reliable authority (by expert testimony, another treatise, or judicial notice),
• An expert witness testifies and has relied on the treatise, or the treatise is used to cross‑examine the expert, and
• The statement is relevant to the subject of the expert’s testimony.

The key exam points:

• The relevant portions may be read into evidence, but the treatise itself does not become an exhibit.
• This happens only in conjunction with expert testimony; you cannot just offer a treatise by itself.

Other Key Exceptions

Recorded Recollection

Key Term: Recorded Recollection
A hearsay exception for a record that accurately reflected a witness’s knowledge when made or adopted, used when the witness now cannot recall well enough to testify fully and accurately.

If a witness once knew a fact but now cannot recall it well enough to testify fully, FRE 803(5) allows use of a record if:

• The witness had personal knowledge when the matter was fresh,
• The record was made or adopted by the witness at that time,
• The record accurately reflected the witness’s knowledge then, and
• The witness now has insufficient recollection to testify fully and accurately.

The record may be read to the jury, but the proponent does not get it admitted as an exhibit. The opposing party, however, may opt to introduce the document itself.

Exam Tip
Distinguish present recollection refreshed (Rule 612), where a document jogs the witness’s memory and then the witness testifies from present memory, from recorded recollection, where the document stands in for memory and is read to the jury.

Reputation Evidence

Key Term: Reputation Evidence
A hearsay exception for reputation in a community about a person’s character, personal or family history, or certain property or boundaries when such reputation is relevant under the substantive evidence rules.

FRE 803(19)–(21) permit reputation evidence about:

• Personal or family history (birth, marriage, death),
• Boundaries or general history of land,
• A person’s character, when character evidence is otherwise admissible (for example, in certain defamation or homicide cases).

Reputation is, by nature, what “people say” about someone or something—hearsay—but these rules allow it in when relevant.

Judgments of Previous Conviction

Key Term: Judgment of Previous Conviction
A hearsay exception for a final judgment of conviction of a felony, used to prove any fact essential to that judgment (FRE 803(22)).

A certified judgment of a criminal conviction for a crime punishable by death or more than one year (a felony) is admissible to prove any fact essential to the judgment.

• In criminal cases, the prosecution may use the defendant’s prior felony conviction; a co‑defendant’s conviction cannot ordinarily be used against another accused.
• Convictions for impeachment are governed by a different rule (Rule 609); here, the conviction is used substantively to prove elements.

Worked Example 1.7

In a civil action for fraud, the plaintiff offers a certified copy of a criminal judgment showing that the defendant was previously convicted of mail fraud arising from the same scheme. Is the judgment admissible to prove that the defendant engaged in fraudulent conduct?

Answer:
Yes. A certified felony conviction is admissible under 803(22) to prove any fact essential to that judgment. Mail fraud requires fraudulent conduct, so the conviction is probative of fraud in the civil case.

Worked Example 1.8

A store’s security manager routinely logs all incidents of suspected shoplifting in an incident log. After a theft, a log entry records, “Customer Smith admitted taking two shirts without paying.” In a later civil suit by the store against Smith, the store offers the log entry. Is it admissible for the truth of Smith’s admission?

Answer:
Yes, but you must analyze both layers of hearsay. The incident log itself is a business record. Smith’s statement inside the log is an admission by a party opponent. Because each layer is covered by an exception or exclusion, the entry is admissible for its truth.

Exam Warning: Double Hearsay and Trustworthiness

Business and public records often contain nested statements. On the MBE:

• Always ask whether each layer is covered by an exception or exclusion.
• Remember that both business and public records can be excluded if the method or circumstances indicate a lack of trustworthiness (e.g., obvious bias, sloppy investigation, or records generated solely for litigation).

Exam Warning: Confrontation Clause Overlay

In a criminal case, even if a record fits a hearsay exception, testimonial statements offered against the accused trigger the Confrontation Clause. Examples:

• Forensic lab reports prepared for prosecution are often testimonial; admitting them without an opportunity to cross-examine the analyst can violate the Sixth Amendment.
• Routine records kept for administrative purposes (e.g., jail intake forms) are more likely non-testimonial.

Always treat the Confrontation Clause as a separate hurdle after you have found a hearsay exception.

Key Point Checklist

This article has covered the following key knowledge points:

• Hearsay is an out-of-court statement offered for its truth; if it is hearsay, you need an exclusion or exception.
• Availability‑immaterial exceptions (FRE 803) apply whether or not the declarant testifies.
• The business records exception requires: record made at or near the time, by or from someone with knowledge under a business duty, kept in the regular course of a regularly conducted activity, and regularly made—and the record must appear trustworthy, not prepared primarily for litigation.
• The public records exception covers agency activities, matters observed under a legal duty, and investigative factual findings, but law-enforcement observations and investigative findings are generally inadmissible against the accused in a criminal case.
• Present sense impression covers contemporaneous descriptions of events; excited utterance covers statements about startling events made while the declarant is still under the stress of excitement.
• The state‑of‑mind exception admits statements of then‑existing intent, emotion, or physical condition, and can be used to infer later conduct consistent with a stated plan.
• Statements for medical diagnosis or treatment admit descriptions of symptoms, history, and general cause, when reasonably related to care; statements of fault usually do not qualify.
• Learned treatises may be read to the jury when an expert is on the stand and the work is established as reliable, but the publication itself is not received as an exhibit.
• Recorded recollection allows a prior accurate record to be read to the jury when the witness now cannot recall; the document itself is normally not the proponent’s exhibit.
• Reputation evidence and judgments of previous conviction have their own exceptions and must be distinguished from using convictions solely for impeachment.
• Double hearsay within records requires you to find an exception (or exclusion) for each layer, and trustworthiness remains a global gatekeeper.
• In criminal cases, even when a hearsay exception applies, testimonial statements offered against the accused must satisfy the Confrontation Clause.

Key Terms and Concepts

• Hearsay
• Hearsay Exception
• Availability‑Immaterial Hearsay Exception
• Business Records Exception
• Public Records Exception
• Present Sense Impression
• Excited Utterance
• State of Mind Exception
• Statement for Medical Diagnosis or Treatment
• Learned Treatise
• Recorded Recollection
• Reputation Evidence
• Judgment of Previous Conviction