5 Hearsay Exceptions

There are certainly more than 5 hearsay exceptions that show up on the bar exam. That said, I do see some showing up with more frequency than others. I thought I'd choose 5 here that I deem especially important to know. In this area, they love to test the nuances. Think of this post as sort of an indication of the detail with which you should know these exceptions and the others. But certainly it's always important to prioritize the material that shows up most in the released practice questions. That applies to hearsay and everything else on the test.

~Excited Utterance: This is an out-of court statement relating to a startling event made while under the stress of the excitement from the event.  Key here is to look for reflection time; if the declarant had time to reflect then it's far less likely that the statement will be deemed as made while under the stress of the excitement of the event. 

~Present Sense Impression: This is an out-of-court statement that describes or explains an event or condition and is made while or immediately after the declarant perceives the event or condition. Timing is essential here. If the declarant describes something seen in the past (and not the immediate past) then the present sense impression is lost. Consider, instead, the excited utterance. And if the declarant describes something in the non-immediate past and does so without the excitement necessary for the excited utterance, then both exceptions are lost. 

~Business Records: They do like to test this one. Any writing or record made as a memo of any act or transaction may be admitted if the writing or record is made by a business and if the entry is made in the regular course of business. To be made in the regular course of business requires that this was a regularly conducted business activity and that it was customary to make the type of entry involved. Accident reports prepared primarily for litigation are usually not admissible under this exception. In addition, police reports are generally not admissible against a criminal defendant under this exception. The business record must consist of matters within the personal knowledge of the entrant or within the knowledge of someone with a duty to transmit that knowledge to the entrant. The entry must be made at or near the time of the transaction and the authenticity of the record must be established. 

~Present State of Mind: I see this one confused with the present sense impression quite often. The present state of mind exception allows for admissibility of an out-of-court statement of the declarant's then-existing state of mind, emotion, sensation, or physical condition. Practically, on the MBE, it's almost always offered to establish a person's intent or as circumstantial evidence that such intent was carried out. Should always consider this exception when a question involves an alibi. Intent is very different than memory; this exception is rarely admissible to prove the a statement of memory by the declarant. 

~Dying Declaration: Multiple traps the test writers can set with this one. First, this exception only applies in civil cases and in homicide cases. In other words, no criminal cases outside of homicide cases (not even attempted homicide). The declarant must be unavailable. Further, the declarant at the time of the out-of-court statement must have believed that death was imminent and the statement must concern the cause or circumstances of what the declarant believes to be that impending death. The statement must be based on the declarant's first-hand knowledge of what happened. An unsupported opinion about what happened to cause the defendant to feel that he/she was about to die will not suffice. 

Like any list such as this one, it's a bit subjective on my part. There are, for sure, other exceptions to know well. But definitely, these 5 can't be left out.