An approach you can apply to every hearsay question on the MBE:
1: Is the witness testifying to a statement that was made out of court.
No? Then it's not hearsay.
Yes? Then move on to the next step.
2: Is the out of court statement being offered for the truth of the matter asserted?
No? Then it's not hearsay.
Yes? Then move on to the next step.
3: Is the statement exempted from the rule against hearsay?
Yes? Then it's an admissible non-hearsay exemption.
No? Then move on to the next step.
4: Do any of the hearsay exceptions apply to the statement?
No? Then it's inadmissible hearsay.
Yes? Then it's hearsay, but it's admissible.
*That final point is worth reiterating. When you have an exception to the hearsay rule, that doesn't make the statement not hearsay or non hearsay. Rather, it's more accurate to say that some hearsay is admissible.
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