Hearsay and Its Exceptions: A CP Exam Guide

The hearsay rule is one of the most complex and frequently tested evidence concepts on the Certified Paralegal exam. Understanding what constitutes hearsay, why it is generally excluded, and the numerous exceptions is essential for both the exam and paralegal practice.

What Is Hearsay?

Under Federal Rule of Evidence 801(c), hearsay is a statement (1) made by a declarant (2) other than while testifying at the current trial or hearing, (3) offered in evidence to prove the truth of the matter asserted in the statement.

All three elements must be present for a statement to be hearsay. If a statement is offered for a purpose other than proving the truth of its content, it is not hearsay. Common non-hearsay purposes include:

Verbal Acts (Operative Legal Facts): Words that have legal significance by being spoken (e.g., "I accept your offer" in a contract case)
Effect on the Listener: Offered to show the listener's state of mind or notice, not the truth of the statement
State of Mind of the Speaker: Offered to show the speaker's mental state, knowledge, or belief
Impeachment: Prior inconsistent statements used to challenge a witness's credibility

Statements That Are Not Hearsay (Rule 801(d))

Certain categories of out-of-court statements are defined as "not hearsay" under Rule 801(d):

Prior Inconsistent Statements Under Oath (801(d)(1)(A)): A declarant-witness's prior statement that is inconsistent with their trial testimony, given under oath at a prior proceeding
Prior Consistent Statements (801(d)(1)(B)): Offered to rebut a charge of recent fabrication or improper motive
Prior Identification (801(d)(1)(C)): A statement identifying a person after perceiving them
Opposing Party's Statement (801(d)(2)): Also known as an admission by a party-opponent. This includes the party's own statements, adopted statements, authorized statements, statements by agents, and co-conspirator statements during and in furtherance of the conspiracy.

Hearsay Exceptions: Declarant's Availability Immaterial (Rule 803)

Rule 803 provides exceptions that apply regardless of whether the declarant is available to testify:

Present Sense Impression (803(1)): A statement describing or explaining an event made while or immediately after perceiving it
Excited Utterance (803(2)): A statement relating to a startling event, made while the declarant is under the stress of excitement caused by the event
Then-Existing Mental, Emotional, or Physical Condition (803(3)): Statements of the declarant's then-existing state of mind, emotion, sensation, or physical condition (e.g., "I intend to go to Chicago" or "My back hurts")
Statements for Medical Diagnosis or Treatment (803(4)): Statements made for and reasonably pertinent to medical diagnosis or treatment
Recorded Recollection (803(5)): A memo or record about a matter the witness once had knowledge of but cannot now recall sufficiently, made when the matter was fresh in the witness's memory
Records of Regularly Conducted Activity (803(6)): The business records exception. The record must be made at or near the time of the event, by or from information transmitted by someone with knowledge, kept as a regular practice of the business. A custodian or qualified witness must testify to these foundations.
Public Records (803(8)): Records of a public office setting forth the office's activities, matters observed under a duty to report, or factual findings from a legally authorized investigation
Learned Treatises (803(18)): Published treatises, periodicals, or pamphlets established as reliable authority, usable on direct or cross-examination of an expert

Hearsay Exceptions: Declarant Unavailable (Rule 804)

Rule 804 exceptions apply only when the declarant is unavailable to testify. A declarant is unavailable when they are exempt by privilege, refuse to testify, lack memory, are dead or physically unable, or are absent and cannot be subpoenaed:

Former Testimony (804(b)(1)): Testimony given at a prior proceeding or deposition, if the party against whom it is offered had an opportunity to examine the declarant
Dying Declaration (804(b)(2)): A statement made by a declarant who believes their death is imminent, concerning the cause or circumstances of what they believe to be their impending death. Available in civil cases and criminal homicide cases.
Statement Against Interest (804(b)(3)): A statement so contrary to the declarant's financial, proprietary, or penal interest that a reasonable person would not have made it unless believing it to be true
Statement of Personal or Family History (804(b)(4)): A statement about the declarant's own birth, adoption, marriage, ancestry, or similar facts of personal or family history

The Residual Exception (Rule 807)

Rule 807 provides a catch-all exception for statements with circumstantial guarantees of trustworthiness equivalent to the specific exceptions, where the statement is more probative on the point for which it is offered than any other reasonably obtainable evidence. Notice to the adverse party is required.

Hearsay Within Hearsay

When one hearsay statement contains another hearsay statement (double hearsay), each layer must independently fall within an exception or exclusion. For example, a hospital record (business record exception) containing a patient's statement (statement for medical diagnosis) has two layers, both of which are admissible.

Study Hearsay for the CP Exam

Hearsay questions are among the most analytically challenging on the CP exam. Practice identifying hearsay, determining if it is offered for the truth of the matter asserted, and applying the correct exception. Our flashcard system includes cards for every hearsay exception with examples. Sign up free to start practicing.

Hearsay Rules and Exceptions for the CP Exam