Hearsay Exemptions

On the MBE, you'll need to distinguish between hearsay exceptions and hearsay exemptions. The reason for this is straight-forward: one answer choice might read "non-hearsay" (which indicates that a hearsay exemption applies) and another might read "hearsay but an exception" (which indicates that a hearsay exception applies).

So, that said, let's learn the exemptions.

Prior Statements by Testifying Witnesses:

The first category of hearsay exemptions falls under the umbrella of statements by a testifying witness. If a prior statement is inconsistent with the testifying witness's in-court testimony and if that prior statement was made under oath at a prior proceeding, the statement will be deemed non-hearsay as an exemption and may be offered for its truth. Note that if that prior statement by the witness wasn't made under oath it can still be used to impeach the witness but because it wasn't made under oath it will not be deemed an exemption to the hearsay rule and will not be admissible to prove the truth of the matter asserted.

In addition, a prior statement that is consistent with a testifying witness's in-court testimony and is offered to rebut a charge that the witness is lying or exaggerating or offered to rehabilitate a witness whose credibility has been impeached on some other ground will be admissible as an exemption to the hearsay rule.

Lastly, a prior statement of identification of a person as someone the witness perceived earlier even if the witness cannot now remember the identification is properly admissible as an exemption to the hearsay rule.

Statements (or admissions) of a Party Opponent:

When one party offers a statement made by an opposing party, that statement is non-hearsay under the Federal Rules.  There are a few to look out for:

--Judicial admissions: Statements made in pleadings, stipulations, etc., are all admissions when offered by an opposing party.

--Adoptive admissions: If a party remains silent when a reasonable person would have responded in the face of an accusation, the silence may be considered itself as an implied admission but only if the party to be charged with the admission heard and understood the accusation and was both physically and mentally capable of denying it. It also must be true that a reasonable person would have denied the accusation. Importantly, silence in the face of an accusation by police in a criminal case is very rarely considered an admission by silence.

Vicarious Admissions:

Because there are quite a few of these, I consider them their own category.

--Authorized Spokesperson: Statements of a person authorized by a party to speak on that party's behalf can be admitted as a non-hearsay exemption against the party.

--Principal-Agent: Statements by an agent or employee concerning any matter within the scope of the agency or employment made while the agency or employment relationship exists are non-hearsay.

--Partners: After a partnership exists, an admission of one partner relating to matters within the scope of the partnership business is admissible as a non-hearsay statement.

--Co-Conspirators: Admissions of one co-conspirator made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy are admissible as a non-hearsay exemption against all co-conspirators.

And one last point to note: Before admitting any statement as one of the above non-hearsay vicarious admissions, the court must make a preliminary determination of the declarant's relationship with the party against whom the statement is offered to ensure that a relationship exists that would warrant the exemption.