Hearsay and circumstances of its admissibility - Present sen...

Learning Outcomes

This article examines two important exceptions to the hearsay rule—Present Sense Impression (FRE 803(1)) and Excited Utterance (FRE 803(2))—in the context of MBE-style evidence questions, including:

• Clarifying the definitions, rationales, and black-letter elements of each exception.
• Distinguishing the strict contemporaneity requirement of present sense impressions from the stress-based timing flexibility of excited utterances.
• Comparing the type of events and the required level of declarant stress for each exception and how those differences affect admissibility outcomes.
• Demonstrating how to classify spontaneous statements in bar-style fact patterns under FRE 803(1), FRE 803(2), another exception, or no exception at all.
• Highlighting common MBE traps, such as mislabeling routine narration as an excited utterance or ignoring better theories like party admissions or state-of-mind.
• Addressing hearsay-within-hearsay scenarios involving present sense impressions and excited utterances and explaining how each layer can be admitted or excluded.
• Identifying when Confrontation Clause doctrine may bar testimonial excited utterances or similar statements in criminal prosecutions despite satisfaction of a hearsay exception.

MBE Syllabus

For the MBE, you are required to understand hearsay and its exceptions where the declarant’s availability is immaterial, with a focus on the following syllabus points:

• Recognition of Present Sense Impression under FRE 803(1).
• Recognition of Excited Utterance under FRE 803(2).
• Distinguishing the temporal requirements of these two exceptions.
• Evaluating whether the declarant perceived the event or condition.
• Assessing whether an event is “startling” and whether the declarant remained under the stress of excitement.
• Differentiating these exceptions from other hearsay exceptions and from non-hearsay uses.
• Applying the exceptions in the context of multiple hearsay and party-opponent statements.
• Spotting when Confrontation Clause doctrine may bar testimonial excited utterances in criminal trials.

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. While watching a fast-moving car race down the street, a bystander says into his phone, "Wow, that blue car is going at least 90 miles per hour!" In a subsequent personal injury lawsuit, this statement is likely admissible under which hearsay exception?
   1. Excited Utterance
   2. Present Sense Impression
   3. State of Mind
   4. Recorded Recollection
2. Immediately after being pulled from a burning building, a severely burned victim screams, "My neighbor set the fire! He said he'd get me!" This statement, offered in an arson trial against the neighbor, is most likely admissible as:
   1. Dying Declaration
   2. Present Sense Impression
   3. Excited Utterance
   4. Statement Against Interest
3. Which factor is essential for an Excited Utterance but NOT for a Present Sense Impression?
   1. The statement must describe an event.
   2. The declarant must have perceived the event.
   3. The declarant must be under the stress of excitement caused by a startling event.
   4. The statement must be made close in time to the event.
4. A woman calmly tells a coworker at lunch, “This morning a truck ran the red light and nearly hit me.” Offered to prove the truck ran the light, which is most accurate?
   1. Admissible as a present sense impression.
   2. Admissible as an excited utterance.
   3. Admissible as both a present sense impression and an excited utterance.
   4. Inadmissible hearsay unless some other exception applies.
5. During a 911 call made two minutes after a shooting, the caller, sobbing, says, “He shot my brother—Jamal did this!” At Jamal’s later murder trial, the prosecution offers the recording. Which is the best initial analysis under the hearsay rules (ignoring the Confrontation Clause)?
   1. Admissible as a present sense impression only.
   2. Admissible as an excited utterance; it may also fit present sense impression.
   3. Inadmissible because it is testimonial.
   4. Inadmissible because 911 calls are never covered by hearsay exceptions.

Introduction

The rule against hearsay generally excludes out-of-court statements offered to prove the truth of the matter asserted because such statements lack the reliability safeguards of in-court testimony (oath, cross-examination, demeanor observation). However, numerous exceptions exist where circumstances suggest the statement possesses sufficient indicia of trustworthiness. Federal Rule of Evidence 803 provides several exceptions for which the availability of the declarant is immaterial.

Two of the most frequently tested hearsay exceptions on the MBE are Present Sense Impression (FRE 803(1)) and Excited Utterance (FRE 803(2)). Both rely on the spontaneity of the statement relative to the event perceived as the basis for their presumed reliability, but they are not interchangeable. The examiners often give you a statement that looks spontaneous and ask you to decide which exception, if any, actually fits.

Key Term: Hearsay
An out-of-court statement offered in evidence to prove the truth of the matter asserted in the statement.

Key Term: Hearsay Exception
A rule that allows admission of certain hearsay statements because surrounding circumstances provide sufficient guarantees of trustworthiness to substitute for in-court testimony.

Two key features of both exceptions for MBE purposes:

• They apply whether or not the declarant testifies at trial.
• If they apply, the statement is admitted for its truth as substantive evidence, not just for impeachment.

Keeping those basics in mind, the rest of this article focuses on how to recognise and use FRE 803(1) and 803(2) under exam conditions, and how to avoid common traps where another rule—or no exception at all—is actually correct.

FRE 803(1): Present Sense Impression

FRE 803(1) provides that a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it, is not excluded by the hearsay rule. The core rationale is that substantial contemporaneity between the event and the statement minimises the risk of memory lapse or calculated misstatement.

Key Term: Present Sense Impression
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

The key idea: the declarant is narrating what they are currently experiencing, not recounting something from the more distant past or processing it in a reflective way.

Elements of a Present Sense Impression (FRE 803(1))

To apply FRE 803(1) on the MBE, look for three requirements:

• Description or explanation of an event or condition:

  The statement must describe or explain an event or condition.

  • It can be very brief (“That car just ran the light”) or somewhat more detailed (“The man in the red jacket is walking quickly toward the back door”).
  • It cannot be a detached, reflective narrative about a past event (“Earlier today a car ran a stop sign”; “Yesterday the truck was speeding”).
  • It can include estimates or characterisations (“He’s driving way too fast”), as long as it is tied to what the declarant is perceiving.
  • The rule focuses on timing and perception, not correctness. An inaccurate present sense impression is still admissible; accuracy goes to weight, not admissibility.

• Personal perception by the declarant:

  The declarant must have personally perceived the event or condition being described or explained.

  • Seeing, hearing, or otherwise sensing the event is required.
  • If the declarant is merely repeating what another person said about an event they did not themselves perceive, that is hearsay within hearsay. The present sense impression exception might cover the outer statement (“He’s saying the blue car ran the light”), but not the inner one unless another exception applies.
  • On the MBE, look for language like “while watching,” “as he saw,” “while listening,” “as she was driving,” or explicit references to sensory experience.

• Contemporaneity: “while or immediately after”:

  The statement must be made while the declarant is perceiving the event, or immediately thereafter.

  • The temporal requirement is strict. Think in terms of seconds or at most a very short number of minutes.
  • A short lapse to type a message, shout to someone else, or hit “record” is usually acceptable.
  • A statement made several minutes later, after leaving the scene or after a clear opportunity for reflection, usually fails 803(1), even if it might still fit 803(2).

Courts and the MBE focus on whether the time interval leaves room for fabrication or significant reflection. If the fact pattern describes a “few minutes,” pay attention to whether the declarant is still in the midst of the event (e.g., still driving next to the speeding car) or has moved away and is calmly reporting what happened.

Reliability Rationale

The reliability of a present sense impression comes from:

• Lack of memory problems (almost no time for the memory to fade).
• Little or no time for calculated lying.
• Often the presence of another person or recording device that can confirm or contradict what happened (e.g., a 911 recording, live phone call).

You may see exam language to this effect in answer choices, explaining why the rule exists.

Worked Example 1.1

Pedestrian is talking on her phone while walking down the street. She says to her friend, "Hold on, there's a red sports car running the stop sign right now!" Seconds later, the sports car collides with another vehicle. At trial for the driver of the sports car, the friend's testimony repeating Pedestrian's statement is offered. Is it admissible?

Answer:
Yes, likely admissible under FRE 803(1). Pedestrian's statement described an event (car running the stop sign) while she was perceiving it ("right now"). The statement describes the event contemporaneously, satisfying the description/explanation, personal perception, and timing elements.

Worked Example 1.2

A pedestrian is watching a truck approach a railroad crossing. As the truck enters the crossing, the pedestrian says to a companion, “That truck is not going to stop for the train!” Within seconds, the truck is struck. In the injured driver’s later suit, the companion testifies to the pedestrian’s statement. Is it admissible as a Present Sense Impression?

Answer:
Yes. The pedestrian is describing the truck’s movement as he sees it and predicting its immediate failure to stop. The description and prediction are made while perceiving the event, so the statement qualifies as a present sense impression.

Notice the prediction component: present sense impressions may include an immediate, non-reflective prediction about what is about to happen (“He’s about to hit that car”) as long as it flows directly from the ongoing perception.

Borderline Timing: How Long is “Immediately After”

There is no fixed number of seconds in the rule, but on the MBE anything beyond a minute or two should raise red flags unless the fact pattern emphasises uninterrupted observation.

Worked Example 1.3

Ten minutes after witnessing a robbery, Witness walks into a nearby café, sits down, and tells a friend, “A man in a blue jacket just robbed that store and ran east.” Witness testifies to this statement at the robber’s trial. Does it qualify as a Present Sense Impression?

Answer:
Probably not. Ten minutes is usually too long to count as “immediately after” for 803(1), especially once the declarant has left the scene and had time to reflect. The statement is a narrative description of a past event, not a contemporaneous description. It might still qualify as an excited utterance if the elements of stress and a startling event are satisfied, but it is weak as a present sense impression.

On the exam, phrases such as “later that day,” “after he calmed down,” “after driving home,” or “once they reached the hospital” almost always defeat a present sense impression argument.

Modern Forms: Present Sense Impressions via Technology

Many present sense impressions in modern fact patterns appear as:

• 911 calls made during or immediately after an event.
• Text messages or instant messages sent while watching an event.
• Social media posts made as the declarant observes something (“Live-tweeting” a police chase).

The same elements apply: contemporaneous description of an event the declarant is perceiving.

FRE 803(2): Excited Utterance

FRE 803(2) covers a different type of spontaneous statement. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused, is not excluded by the hearsay rule. The rationale is that the stress of excitement temporarily stills the capacity for reflection and fabrication, making lies less likely.

Key Term: Excited Utterance
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Key Term: Startling Event
An occurrence sufficiently shocking or surprising to suspend the declarant's powers of reflection and fabrication.

Elements of an Excited Utterance (FRE 803(2))

To apply FRE 803(2) on the MBE, look for three things:

• Startling event or condition:

  There must have been an event or condition sufficiently startling to cause stress or excitement.

  • Classic examples: car crashes, assaults, shootings, explosions, fires, sudden medical emergencies, sudden discoveries of serious injury.
  • Events that are merely interesting or mildly surprising do not qualify; they must be capable of producing genuine excitement or shock.
  • On the MBE, descriptors like “violent,” “sudden,” “crash,” “gunshot,” “screamed,” “terrified,” “panic,” or “shaking” are strong clues.

• Statement relates to the event:

  The statement must relate to the startling event or condition.

  • This is broader than “describing or explaining.” The statement can:
    • Identify the perpetrator (“He shot me!”; “My neighbor set the fire!”).
    • Express fear or pain (“I’m going to die”; “I’m so scared he’ll come back”).
    • Assign blame or motive (“He hit me because I told his boss”).
  • As long as the statement has a connection to the event, the content requirement is satisfied.

• Declarant is still under the stress of excitement:

  The declarant must make the statement while still under the stress or excitement caused by the event.

  • The time lapse is relevant but not determinative. The critical issue is whether the stress has subsided.
  • Indicators that the stress persists:
    • Crying, screaming, trembling, shaking.
    • Incoherent or fragmented speech.
    • Elevated voice, rapid speech, visible panic.
    • Physical manifestations like clutching wounds, pacing uncontrollably.
  • Statements made after the declarant has calmed down, given a detailed narrative, consulted with others, or prepared for litigation usually do not qualify.

Because stress can last longer than the event itself, excited utterances can be admissible even when made several minutes (or, in rare circumstances, longer) after the event, if the declarant is still visibly affected.

Worked Example 1.4

Witness sees a car crash. Visibly shaken and trembling, Witness runs over to a police officer who arrives 10 minutes later and exclaims, "That green car just blew through the intersection and hit the cyclist! I can't believe it!" Is Witness's statement admissible?

Answer:
Yes, likely admissible under FRE 803(2). The car crash is a startling event. The statement relates directly to the crash, including how it occurred and who was involved. Although made 10 minutes later, Witness's physical state (visibly shaken, trembling) indicates they were still under the stress of excitement when the statement was made.

Here, 803(1) would be questionable because of the 10-minute lapse, but 803(2) is a good fit due to continuing stress.

Worked Example 1.5

Immediately after being pulled from a burning building, a severely burned victim screams, "My neighbor set the fire! He said he'd get me!" The victim later dies. At the neighbor’s arson trial, the prosecution offers this statement. Is it admissible as an excited utterance?

Answer:
Yes. The burning building is a clearly startling event. The victim is severely injured and just removed from danger; the statement is made while under extreme stress. The statement directly relates to the cause of the fire and identifies the alleged perpetrator. It therefore qualifies as an excited utterance. It might also be evaluated as a dying declaration if the victim believed death was imminent and the requirements of that exception are satisfied, but the excited utterance exception alone is sufficient.

Timing Flexibility and Stress

The excited utterance exception is more flexible in timing than present sense impression.

• A statement made after the event can still qualify if the declarant remains under the stress of excitement.
• Children, assault victims, and people in severe pain may remain in a stressed state for extended periods.
• The exam will often give you clues: “still crying uncontrollably 15 minutes later,” “voice shaking as he spoke an hour after the accident,” “pale, shaking and unable to speak in complete sentences,” etc.

Worked Example 1.6

A child is injured when a dog bites her in a park. Thirty minutes later, still crying and clinging to her mother, the child points at a nearby dog and says, “That dog bit me!” In a later civil action, the mother testifies to the child’s statement. Does it qualify as an excited utterance?

Answer:
Likely yes. A sudden dog attack on a child is a startling event. The child is still crying and upset thirty minutes later, indicating continuing stress. Her statement relates to the attack, so it fits FRE 803(2) even though the time lapse is longer than would be tolerated for a present sense impression.

Comparing the Exceptions

While both exceptions rely on spontaneity, they differ in key ways that the MBE likes to exploit:

• Nature of the event:

  • Present Sense Impression: Covers any event or condition, routine or dramatic; no requirement that it be startling. A person describing routine traffic, weather, or a business transaction can be within 803(1).
  • Excited Utterance: Requires a startling event or condition, capable of causing genuine stress.

• Timing:

  • Present Sense Impression: Demands strict contemporaneity (“while or immediately after” perception). Even a brief delay can defeat this exception if the facts suggest time for reflection.
  • Excited Utterance: Timing is more flexible; the statement can be made minutes (or sometimes longer) after the event, as long as the declarant is still under the stress of excitement.

• Content:

  • Present Sense Impression: Statement must describe or explain the event or condition. It is essentially a running commentary.
  • Excited Utterance: Statement need only relate to the event. This is broader and covers identifications, expressions of fear, accusations, and similar content.

• Stress requirement:

  • Present Sense Impression: No requirement that the declarant be excited or stressed. A calm, neutral narration can qualify.
  • Excited Utterance: Declarant must be under the stress of excitement caused by the event.

Exam Tip:
If the problem involves a high-energy event (crash, assault, gunshot) and the declarant is described as screaming, crying, or frantic, the excited utterance exception is usually the better fit—especially if there is any noticeable delay. If the fact pattern emphasizes “simultaneous narration” (“as he watched,” “while she listened,” “I’m seeing this right now”) and gives a very short time frame, think present sense impression.

Worked Example 1.7

During a televised parade, Viewer says to a friend, “The mayor is waving to the crowd right now.” Twenty minutes later, while still watching the same channel, Viewer calmly says, “Earlier, the mayor’s security team shoved a protester.” Which statements, if any, qualify as present sense impressions?

Answer:
The first statement (“The mayor is waving to the crowd right now”) is a classic present sense impression: it contemporaneously describes an event Viewer is perceiving. The second statement (“Earlier, the mayor’s security team shoved a protester”) refers to an earlier event and is made twenty minutes later. It is a narrative description of a past event, not made while or immediately after perception, so it is not a present sense impression. It also likely fails as an excited utterance if Viewer is calm and not under stress.

Interactions with Other Hearsay Rules

On the MBE, a statement may potentially fit multiple hearsay exceptions. You should be comfortable recognising overlaps and distinguishing these exceptions from other commonly tested rules.

Present Sense Impression vs. Recorded Recollection

Key Term: Recorded Recollection
A record that a witness made or adopted when the matter was fresh in memory, which the witness now cannot recall well enough to testify fully and accurately.

A statement can be both a present sense impression and a recorded recollection if:

• It was recorded while the event occurred or immediately after, and
• The witness now cannot remember but can testify that the record was accurate when made.

Worked Example 1.8

A pedestrian sues a driver for injuries from a hit-and-run. At trial, a witness testifies that he saw the accident, and as the car sped off, he accurately dictated the license number into his functioning pocket recorder. The witness now cannot remember the license number, but the recording still exists. May the tape be played?

Answer:
Yes. The recorded statement is a present sense impression because it describes the car and its license plate as the witness perceives the event. It is also a recorded recollection: the witness had firsthand knowledge, made the record when the event was fresh, now lacks memory, and testifies that the record was accurate when made. Either hearsay exception supports admissibility.

In such a case, 803(1) and 803(5) both apply. The exam may ask you to choose “present sense impression,” “recorded recollection,” or “either present sense impression or recorded recollection.” Read the answer choices carefully.

Excited Utterance vs. Then-Existing State of Mind

Key Term: Then-Existing State of Mind
A statement of the declarant’s then-existing mental, emotional, or physical condition (such as intent, plan, motive, or feeling), offered to prove that condition.

A statement like “I am terrified of my ex” may fit the state-of-mind exception if offered to show fear, but it will only be an excited utterance if tied to a startling event and made under stress (“He just pointed a gun at me; I am terrified!”).

• If the issue is what the declarant felt, 803(3) (state of mind) may be the best fit.
• If the issue is what happened, and the statement is linked to a startling event, 803(2) is more appropriate.

Party Admissions

Key Term: Party-Opponent Admission
A statement offered against an opposing party that was made by that party (or someone whose statement is attributable to that party), which is classified as non-hearsay under FRE 801(d)(2).

Neither 803(1) nor 803(2) is necessary when the declarant is a party and the statement is offered against that party. Party-opponent admissions under FRE 801(d)(2) are non-hearsay.

On the MBE, the exam sometimes includes both a party-admission answer and an 803 exception. When the declarant is the opposing party, party admission is the cleaner and usually correct answer, even if the statement also happens to be spontaneous.

Multiple Hearsay and These Exceptions

Often, you will see hearsay within hearsay, such as:

• A 911 recording of a witness repeating what another person said.
• A bystander testifying to a victim’s statement that quotes someone else.

Remember: Each level of hearsay must be separately admissible.

Example pattern:

• 911 operator testifies: “Caller said, ‘The blue car just ran the red light and hit the pedestrian!’”
  • Caller’s statement: present sense impression and/or excited utterance.
  • Operator’s repetition in court: not hearsay if the operator is simply reporting what the caller said and the statement itself fits an exception.

But if the caller said, “My friend told me the blue car ran the red light,” the analysis changes:

• Caller’s statement (“My friend told me…”) might be an excited utterance.
• Friend’s original statement (“The blue car ran the red light”) requires its own exception or non-hearsay use, or that layer is excluded.

On the MBE, if only one layer fits an exception, you must treat the remainder as inadmissible hearsay.

Confrontation Clause Considerations (Criminal Cases)

In criminal cases, the Confrontation Clause can bar admission of certain hearsay statements offered against the accused.

Key Term: Testimonial Statement
A statement made in circumstances where an objective person would reasonably expect it to be used in a later criminal prosecution, typically formal statements to law enforcement or during structured questioning.

Key Term: Ongoing Emergency
A situation in which police or responders are primarily attempting to address a current threat rather than to gather evidence for later prosecution.

The Confrontation Clause problem arises when:

• The declarant is unavailable,
• The defendant had no prior opportunity to cross-examine the declarant, and
• The statement is testimonial.

How does this affect present sense impressions and excited utterances?

• Non-testimonial statements:

  • Spontaneous outcries to friends, family, or bystanders are non-testimonial.
  • 911 calls during an ongoing emergency, made to obtain help and describe current danger, are typically non-testimonial.
  • On-the-scene statements to police while the situation is still unfolding are usually non-testimonial.

  These are generally admissible if they fit 803(1) or 803(2).

• Potentially testimonial statements:

  • Statements to police or investigators after the emergency has ended, in response to structured questioning aimed at establishing past facts, can be testimonial.
  • A calm, detailed statement at the station house hours after the event, given for purposes of building a criminal case, is likely testimonial.

For MBE purposes:

• If the fact pattern highlights an ongoing emergency (e.g., “shots still being fired,” “assailant still at large,” “caller begging for immediate help”), treat present sense impression or excited utterance as admissible with no Confrontation Clause bar.
• If the pattern describes formal questioning after the fact and the declarant does not testify, be alert to a possible Confrontation Clause answer choice.

Note that the Confrontation Clause is a separate constitutional limitation; a statement may satisfy 803(1) or 803(2) but still be excluded in a criminal case if it is testimonial and the defendant had no opportunity to cross-examine.

Additional Worked Examples

Worked Example 1.9

About two minutes after being punched in a bar fight, Victim, bleeding and shaking, tells a friend outside the bar, “That guy in the red shirt hit me for no reason!” At the assailant’s trial for assault, the friend testifies to Victim’s statement. Which exception best supports admissibility?

Answer:
Excited utterance. The sudden assault is a startling event. Victim is still bleeding and shaking two minutes later, indicating continuing stress. The statement relates to the assault and identifies the assailant. Although it is also close in time, the exam will typically emphasise the stress and startling nature of the event and expect excited utterance as the better answer.

Worked Example 1.10

Driver is in heavy traffic and calls a coworker on hands-free speakerphone. During the call, Driver says, “The truck in the next lane is weaving back and forth—now it’s crossing the center line again.” Five minutes later, still in traffic behind the truck, Driver says, “That same truck just slammed into the car ahead of it!” At trial arising from the collision, the coworker testifies to both statements. How should the court treat them?

Answer:
Both statements are likely admissible as present sense impressions. Driver is continuously observing the truck during the phone call; his remarks are contemporaneous descriptions of the truck’s movement and the eventual collision. The five-minute gap is less important because Driver’s perception never stops—he is still following and observing the same truck. If the fact pattern emphasised that Driver left the scene or had time to calm down and reflect, the second statement might instead be analysed under the excited utterance exception.

Exam Warning: Common Traps and Mislabels

On MBE fact patterns, the following traps recur:

• Calling any spontaneous statement a “present sense impression” without checking:

  • Whether the statement actually describes or explains an event or condition.
  • Whether it was made while or immediately after the event was perceived.

• Ignoring the “startling event” requirement for excited utterances:

  • A person’s spontaneous remark about a routine event (e.g., “The bus is late again”) is not an excited utterance, regardless of tone, unless the event itself is startling.

• Overlooking calm tone and time lapse:

  • A statement made calmly at the hospital an hour after an accident, with no description of ongoing stress, is unlikely to qualify as an excited utterance even if the event was originally startling.

• Misusing state-of-mind:

  • Statements like “I am afraid he will hurt me” can be state-of-mind hearsay, but do not by themselves identify what actually happened.

• Choosing an exception when a non-hearsay route is better:

  • If the statement is offered to show its effect on the listener (e.g., to show notice, fear, or motive), it is not hearsay at all. An answer choice that labels it “present sense impression” or “excited utterance” is then incorrect, even though the statement is spontaneous.

Summary

Present Sense Impressions (FRE 803(1)) are statements describing or explaining an event made while or immediately after perception. Excited Utterances (FRE 803(2)) are statements relating to a startling event made while under the stress of excitement caused by that event. Both are exceptions to the hearsay rule based on spontaneity reducing the likelihood of fabrication. Key distinctions lie in the nature of the event (startling vs. any), the timing requirement (stricter for 803(1)), and the content of the statement (describing/explaining vs. relating to).

On the MBE, many questions in this area come down to two issues:

• Timing: Is the statement truly contemporaneous, or is it delayed yet still under stress?
• Event type and stress: Is there a startling event, and is the declarant still reacting to it?

Understanding these distinctions allows you to choose the correct hearsay exception, recognise when a party admission or state-of-mind exception is the better answer, or identify when no hearsay exception applies and some other theory (or no admission at all) must be used.

Key Point Checklist

This article has covered the following key knowledge points:

• Hearsay is an out-of-court statement offered for its truth; many exceptions, including FRE 803(1) and FRE 803(2), apply regardless of the declarant’s availability.
• FRE 803(1) Present Sense Impression requires:
  • A statement describing or explaining an event or condition,
  • Made while the declarant is perceiving it or immediately thereafter,
  • Based on the declarant’s own perception.
• FRE 803(2) Excited Utterance requires:
  • A startling event or condition,
  • A statement that relates to that event,
  • Made while the declarant remains under the stress of excitement caused by the event.
• Present Sense Impression has a stricter timing requirement and no stress requirement; any event or condition can qualify.
• Excited Utterance allows more time between event and statement but demands a genuinely startling event and continued stress.
• Present Sense Impression statements must “describe or explain”; Excited Utterance statements only need to “relate to” the event and may include identifications and accusations.
• A single statement can sometimes fit multiple exceptions (for example, present sense impression and recorded recollection; excited utterance and state-of-mind).
• Party admissions are non-hearsay and often provide a simpler route to admissibility than 803 exceptions when the declarant is a party.
• In criminal cases, Confrontation Clause issues may arise for testimonial hearsay; many spontaneous present sense impressions and excited utterances during an ongoing emergency are non-testimonial and thus admissible.
• Declarant availability is immaterial for both 803(1) and 803(2); these exceptions apply whether or not the declarant testifies.
• In multiple-hearsay scenarios, each level of the statement must be supported by its own exception or non-hearsay theory.
• On the MBE, careful attention to timing words (“right now,” “immediately after,” “later that day”) and to stress indicators (“shaking,” “screaming,” “calmly stated”) often determines the correct answer.

Key Terms and Concepts

• Hearsay
• Hearsay Exception
• Present Sense Impression
• Excited Utterance
• Startling Event
• Then-Existing State of Mind
• Recorded Recollection
• Party-Opponent Admission
• Testimonial Statement
• Ongoing Emergency