Bar Exam (Next Generation) Quiz: Hearsay Exceptions Declarant Availability Immaterial

11 questions · exam conditions

0:00

Hearsay Exceptions Declarant Availability ImmaterialQuestion 1 of 11

A passenger in a car driving behind an SUV watched the SUV cross the center line and strike a pickup truck. Immediately after the impact, the passenger said in a calm, conversational voice, 'The SUV crossed into our lane and hit that pickup.' At trial in the pickup driver's suit against the SUV driver, the driver of the car testifies to the passenger's statement. The passenger is out of the country and does not testify. The defendant objects.

Should the court admit the statement?

No, because a statement offered under the present sense impression exception must be made while the declarant is under the stress of the event, and the passenger was calm.

No, because the passenger did not testify and the defendant had no opportunity to cross-examine her about what she perceived.

Yes, because the statement described the event while or immediately after the passenger perceived it, and neither excitement nor the declarant's availability is required for the present sense impression exception.

Yes, because a passenger's excitement is presumed when a statement describes a traffic collision, and the need for the evidence outweighs the defendant's inability to cross-examine.

← Back to quizzes

Bar Exam (Next Generation) Quiz

Bar Exam (Next Generation) Quiz: Hearsay Exceptions Declarant Availability Immaterial

Practice Hearsay Exceptions Declarant Availability Immaterial in Bar Exam (Next Generation) with focused quiz questions that help you check what you know, review explanations, and build confidence with test-style prompts.

What this quiz covers

This quiz focuses on Hearsay Exceptions Declarant Availability Immaterial, giving you a quick way to practice the rules, question types, and explanations that matter most for Bar Exam (Next Generation).

How to use this quiz

Try each quiz question before looking at the correct answer. Use the explanations to review missed ideas, then come back to similar questions until the pattern feels familiar.

All questions

Question 1

Should the court admit the statement?

No, because a statement offered under the present sense impression exception must be made while the declarant is under the stress of the event, and the passenger was calm.
No, because the passenger did not testify and the defendant had no opportunity to cross-examine her about what she perceived.
Yes, because the statement described the event while or immediately after the passenger perceived it, and neither excitement nor the declarant's availability is required for the present sense impression exception. (correct answer)
Yes, because a passenger's excitement is presumed when a statement describes a traffic collision, and the need for the evidence outweighs the defendant's inability to cross-examine.

Explanation: This question tests the hearsay exceptions for present sense impression and excited utterance, two rules students often confuse. Whenever you see a hearsay statement made close in time to the event described, ask two things: Was it made while or immediately after perceiving the event? And was it made under the stress of a startling event? The present sense impression exception requires only the first; the excited utterance exception requires the second. Here, the passenger described the SUV crossing the line and hitting the pickup immediately after impact, so the statement fits the present sense impression exception. The rule does not require the declarant to be excited or unavailable — those are not elements. The statement's timing is enough, and the exception applies regardless of whether the passenger testifies. The choice claiming the statement must be made under stress is wrong because that is the requirement for an excited utterance, not a present sense impression. The choice arguing the statement should be excluded because the passenger did not testify misunderstands the rules: many hearsay exceptions, including 803(1), apply even when the declarant is available or unavailable. Finally, the choice about presumption of excitement in traffic collisions is also wrong — there is no such presumption, and the exception's admissibility does not turn on cross-examination opportunities. For strategy, remember the pairing: present sense impression = immediate description, no stress needed; excited utterance = startling event, stress needed. Neither requires the declarant to be unavailable. When you see "calm" in a fact pattern, do not assume exclusion — that word actually steers you toward a present sense impression.

Question 2

A factory worker, Paul, was injured when a pallet fell on him. The next morning, he told a coworker, 'My back was killing me all night, and I couldn't sleep at all.' In Paul's personal injury suit against the pallet manufacturer, Paul offers the coworker's testimony about the statement to prove that he suffered back pain after the accident. The manufacturer objects.

How should the court rule?

Admit the statement because it describes Paul's then-existing physical condition—his back pain—and such statements are within the hearsay exception for then-existing bodily condition.
Admit the statement because it is a statement of Paul's present bodily condition made to a coworker, and the declarant's availability is immaterial.
Exclude the statement because it describes a past physical condition, not a then-existing condition, and the statement was not made for purposes of medical diagnosis or treatment. (correct answer)
Exclude the statement because statements of physical condition are admissible only to prove the declarant's subsequent conduct, not to prove that the condition existed.

Explanation: Whenever you see a hearsay question about physical condition, the key distinction is timing: did the declarant describe how they feel now, or how they felt before? The hearsay exception for then-existing physical condition admits statements of present bodily state—like "my back hurts right now"—because there is little chance of faulty memory. The same rationale does not apply to statements about past pain. Here, Paul's statement to the coworker was made the morning after the accident, but he described the previous night: "My back was killing me all night, and I couldn't sleep at all." That is a report of past physical condition, not a then-existing condition. There is a separate hearsay exception for statements made for medical diagnosis or treatment, but Paul was speaking to a coworker, not a healthcare provider, so that exception does not apply. Therefore, the court should exclude the statement. The choice saying the statement describes "then-existing physical condition" misreads the tense: "was killing me all night" is retrospective. The choice saying it is a "present bodily condition made to a coworker, and the declarant's availability is immaterial" correctly notes that availability is irrelevant for this exception, but incorrectly treats the statement as present. Finally, the claim that physical-condition statements are admissible only to prove subsequent conduct gets the rule backwards—these statements are admitted to prove the existence of the condition, not later conduct. Study tip: on exam day, circle time words like "last night," "yesterday," or "had been" in physical-condition hearsay questions. If the condition is not happening at the moment of the statement, it likely falls outside the present-condition exception unless made to a medical provider.

Question 3

At an intersection, a crossing guard named Rosa saw a car approach the crosswalk as the light turned red. The car did not stop; it entered the crosswalk and struck a cyclist. Rosa was not involved in the collision. She calmly turned to a bystander immediately after the impact and said, "That car ran the red light." In the cyclist's suit against the driver, the cyclist offers Rosa's statement to prove the driver ran the red light. The driver objects.

Which exception best supports admitting Rosa's statement?

Admissible as a present sense impression, because Rosa spoke immediately after watching the car run the light. (correct answer)
Admissible as an excited utterance, because a car striking a cyclist is a startling event.
Admissible as a statement of then-existing state of mind, because Rosa believed the light was red.
Admissible as nonhearsay, because Rosa is in court and subject to cross-examination.

Explanation: Whenever you see a hearsay question, your first job is to identify the out-of-court statement and the purpose it is offered for. Here, Rosa's statement is hearsay—it is offered to prove the truth that the driver ran the red light—so you need an exception. The best fit is the present sense impression exception. That exception covers a statement describing or explaining an event while perceiving it, or immediately after perceiving it. Rosa watched the car approach the crosswalk as the light turned red, saw it enter the crosswalk and strike the cyclist, and then said, "That car ran the red light," immediately after the impact. Because her statement was made right after perceiving the event, it is admissible as a present sense impression. The excited utterance exception is tempting because a collision is startling, but the passage specifically says Rosa was "calm" and spoke to a bystander. Excitement, not just a startling event, is the key. The then-existing state of mind exception is also wrong: Rosa's belief that the light was red is not what the cyclist needs to prove—the cyclist needs to prove the driver's conduct, and the statement describes a past event, not Rosa's current state of mind. Finally, the statement is not nonhearsay merely because Rosa might be in court and subject to cross-examination; hearsay is based on the out-of-court nature of the statement and the purpose for which it is offered. Remember: timing and demeanor are the two axes to check when choosing between present sense impression and excited utterance.

Question 4

A customer was injured when an escalator stopped suddenly. The customer sues the mall, claiming the escalator malfunctioned. To prove the malfunction, the customer offers the mall's security log. The log entry, written by a security guard, states: "Rider says escalator stopped suddenly." The guard did not see the escalator stop. The guard wrote the entry about an hour after the incident, after the customer reported it at the security desk. The mall's operations manager testifies that guards regularly log equipment complaints in the ordinary course of the mall's business. Is the log entry admissible to prove the escalator malfunctioned?

Which is the best analysis?

Yes, under the business records exception, because the log is kept in the regular course of the mall's business and the manager authenticated it.
Yes, under the present sense impression exception, because the customer described the incident to the guard while the event was still fresh.
No, because the security log is a self-serving statement created by the defendant and is therefore inadmissible.
No, because the customer's embedded assertion is not a record of a regularly conducted activity and the guard lacked personal knowledge of the malfunction. (correct answer)

Explanation: Whenever you see a business record offered to prove the truth of something, remember that the exception has limits: the record must be made from personal knowledge or from information transmitted by someone with a business duty to report. Here, the log entry says only what the rider told the guard—"Rider says escalator stopped suddenly." The guard did not personally observe the stop, so his record of that event isnot based on his own knowledge. More importantly, the customer's embedded assertion that the escalator malfunctioned is not a record of a regularly conducted activity; the customer had no business duty to report to the mall. Thus, under Federal Rule 803(6), the log is admissible to show that a complaint was made, but not to prove that the escalator actually stopped suddenly. . That makes "No, because the customer's embedded assertion is not a record of a regularly conducted activity and the guard lacked personal knowledge of the malfunction" the correct analysis. The "business records exception" answer misses this distinction: regular keeping of logs and the operations manager's authentication establish only the routine character of the record, not the trustworthiness of the customer's out-of-court assertion embedded in it. The "present sense impression" answer fails because that exception requires a statement made while perceiving the event or immediately thereafter; an hour later, relayed at a security desk, is too late. The "self-serving statement" answer is also wrong: there is no general rule excluding evidence merely because it favors the defendant, and a properly authenticated business record can be admitted even if self-serving. Study tip: when a record quotes a non-employee, ask two questions—did the declarant have personal knowledge, and did they have a business duty to report? Unless both are yes, the embedded statement is hearsay within hearsay and cannot come in for its truth.

Question 5

Vera Ruiz was killed when her car was struck by a car driven by Dan Okafor. Ruiz's estate sues Okafor's estate, claiming Okafor had been intoxicated at the Rusty Nail bar earlier that evening. To show both that Ruiz went to the Rusty Nail that night and that Okafor was there, Ruiz's estate offers a text message Ruiz sent to her sister at 7:10 p.m. on the night of the accident: 'I'm on my way to the Rusty Nail to meet Dan.' Okafor's estate objects.

How should the court rule on the estate's offer?

Admit the entire text as a statement of Ruiz's then-existing intent, which the jury may consider both as evidence that Ruiz went to the Rusty Nail and as evidence that Okafor was present.
Admit the text only to prove Ruiz's then-existing intent to go to the Rusty Nail, with a limiting instruction that it may not be considered as evidence that Okafor was there. (correct answer)
Exclude the entire text because it is a statement of memory or belief offered to prove the fact remembered—that Okafor would be at the bar.
Admit the text but strike the words 'to meet Dan' because a declarant's statement about a third person's anticipated presence is an inadmissible statement of belief.

Explanation: Whenever an out-of-court statement is offered for its truth, start with hearsay. Here, Ruiz's text is hearsay, but a statement of the declarant's then-existing state of mind—intent, plan, or motive—is admissible under FRE 803(3). "I'm on my way to the Rusty Nail" directly expresses Ruiz's present intent to go there, and a declarant's intent is admissible to show that she likely acted consistently with that intent. So the jury may use it to prove Ruiz went to the bar. The problem is the phrase "to meet Dan." If offered to prove Okafor was at the bar, it is being used as a statement of Ruiz's belief about a third person's conduct, and 803(3) excludes statements of memory or belief offered to prove the fact believed. Ruiz's belief that Dan would be there does not make it true. But that does not require excluding the entire text, nor does it require redacting "to meet Dan." The court can admit the text and give a limiting instruction that it proves only Ruiz's intent to go to the Rusty Nail, not Okafor's presence. Therefore, admitting the entire text for both purposes is overbroad; excluding the entire text throws away admissible intent evidence; and striking "to meet Dan" is unnecessary when a limiting instruction protects the opposing party. The correct choice is the one that admits the text for Ruiz's intent with a limiting instruction. On exam day, when a statement mixes admissible state of mind with inadmissible belief about someone else, don't exclude the whole statement—use a limiting instruction.

Question 6

In a medical malpractice trial, the plaintiff has finished presenting expert testimony and then offers to read a passage from an article in a prominent medical journal into evidence to prove the applicable standard of care. The plaintiff's expert did not rely on the article, and no expert witness was asked about it during cross-examination. The defendant objects.

Should the court admit the passage?

Yes, because the article is a statement in a published periodical, the declarant's availability is immaterial, and the court may take judicial notice that the journal is authoritative.
Yes, because learned treatises are an exception to the hearsay rule and may be read into evidence when the court determines they are reliable.
No, because a learned treatise may be used only to impeach an expert on cross-examination and may never be used as substantive evidence of the standard of care.
No, because a learned treatise may be used only if it was relied on by an expert on direct examination or called to an expert's attention on cross-examination and established as reliable authority. (correct answer)

Explanation: Whenever you see a party trying to admit a medical journal article, you are in learned-treatise territory under Federal Rule of Evidence 803(18). The critical idea is that learned treatises are an exception to the hearsay rule, but they are a restricted one: they may be read into evidence as substantive proof, yet only after a witness—usually an expert—establishes the treatise as reliable authority and the treatise was either relied on by the expert on direct examination or called to the expert's attention on cross-examination. Here, the plaintiff's expert never relied on the article, and no expert was asked about it on cross. So the foundation required by the rule is missing. The court should not admit the passage. The correct answer is the choice saying a learned treatise may be used only if it was relied on by an expert on direct or called to an expert's attention on cross and established as reliable. The other choices miss key requirements. The choice about a published periodical with judicial notice ignores that judicial notice of authority alone cannot replace the direct-or-cross foundation. The choice saying treatises are admissible whenever the court finds them reliable overlooks the additional need for expert reliance or cross-examination. And the choice saying treatises may only be used for impeachment is too narrow—they can be substantive evidence when properly introduced. Study tip: for learned treatises, remember the "expert bridge" requirement—someone qualified must vouch for the treatise and connect it to the expert's testimony. No bridge, no admission.

Question 7

A warehouse fire destroyed goods. Sam, a delivery driver, watched the fire and the next day wrote a detailed memo describing how the fire started. At trial three years later, Sam testifies that he wrote the memo, that his memory was clear when he wrote it, and that he believes it was accurate then, but he cannot now remember the fire or its origin. The plaintiff offers the memo into evidence. The defendant objects.

Which is the correct ruling on admissibility?

Inadmissible, because Sam still remembers writing the memo and therefore lacks complete memory loss.
Inadmissible, because Sam is available to testify and can be cross-examined about the memo.
Admissible, but the memo may be read into evidence rather than received as an exhibit unless offered by the adverse party. (correct answer)
Admissible as an exhibit, because Sam wrote the memo when his memory was fresh and later verified its accuracy.

Explanation: Whenever a witness made a written record of an event while his memory was fresh and later cannot remember the event itself, think "past recollection recorded." This is a hearsay exception, but it has a special exhibit rule. Sam watched the fire, wrote the memo the next day, testifies that he wrote it, that his memory was clear then, and that he believed it was accurate — but he now cannot remember the fire. That foundation is sufficient. The memo is therefore admissible, but under this exception it may be read into evidence rather than received as an exhibit unless offered by the adverse party. That is the correct ruling. The objection that Sam still remembers writing the memo misses the point: the exception requires memory loss of the event, not complete memory loss of everything about the memo. In fact, remembering that he wrote it helps authenticate it. The claim that Sam is available to testify and can be cross-examined also fails because the hearsay exception applies even when the witness takes the stand and is available. Finally, the choice saying the memo is admissible as an exhibit because Sam wrote it when fresh and later verified its accuracy gets the foundation partly right but wrongly treats it as an exhibit — the proponent may only read it into evidence unless the adverse party offers the exhibit. Study tip: on evidence questions about recorded recollection, always check whether the item is being read into evidence versus received as an exhibit. That distinction is a common exam trap.

Question 8

While stopped at a red light, Owen was rear-ended by a truck. A police officer arrived about 20 minutes later. Owen was still pale, shaking, and speaking in a halting voice. When the officer asked what happened, Owen said, "The truck didn't stop; it slammed into me." At trial in Owen's suit against the truck driver, Owen has no memory of the collision, and his attorney offers the statement to prove that the truck ran the red light. The driver objects.

Which exception best supports admitting Owen's statement?

Admissible as an excited utterance, because Owen was still shaking and upset when he spoke. (correct answer)
Admissible as a present sense impression, because the collision was fresh in Owen's memory.
Admissible as a statement of then-existing physical condition, because Owen was shaking and pale.
Admissible as recorded recollection, because the officer wrote down Owen's statement.

Explanation: Whenever you see a hearsay question, first identify the out-of-court statement and the purpose it's offered for—here, Owen's statement to the officer is offered to prove the truck ran the red light, so it's hearsay unless an exception applies. The key is timing and stress. Owen spoke about 20 minutes after a traumatic rear-end collision, while still pale, shaking, and halting. That fits the excited utterance exception: a statement about a startling event made while still under the stress of that event. The stress need not be instantaneous—twenty minutes can qualify if the declarant remains visibly agitated. That's why the choice saying "still shaking and upset" is correct. The present sense impression choice fails because that exception requires a statement describing an event while it's occurring or immediately after, not twenty minutes later. The then-existing physical condition choice targets Owen's shaking and paleness, but his statement describes the collision, not his physical state—so it's not about a current condition. The recorded recollection choice is a trap: the officer's writing doesn't matter because Owen himself has no memory, and this exception requires a writing made or adopted when the matter was fresh, plus proper foundation—the officer's report isn't offered as Owen's record. Your study tip: For excited utterances, focus on the stress and spontaneity, not the exact time. The longer the gap, the more evidence of ongoing agitation you need. Practice spotting whether the declarant is describing the event itself or merely their physical symptoms—that distinction often separates correct from incorrect exceptions.

Question 9

At trial in a premises-liability action, the plaintiff offers an incident report prepared later the same day by the defendant grocery store's security manager. The report, which was created and kept in the regular course of the store's business, states: 'I inspected the area near aisle three and observed a puddle of water on the floor.' It also states: 'Approximately one hour after the fall, customer Jane Doe told me that she watched the plaintiff slip on the puddle and fall.' The security manager has authenticated the report and is available for cross-examination. Jane Doe is also available but has not been called to testify. The plaintiff offers the report to prove both that the floor was wet and that the plaintiff slipped.

How should the court rule on the plaintiff's offer of the report?

Admissible in full under the business-records exception because the security manager created the report in the regular course of the store's business, the store kept it as a regular practice, and the manager authenticated it at trial; the customer's statement is simply part of that record.
Admissible only to prove the security manager's observation of the puddle; the customer's statement that she saw the plaintiff slip is inadmissible hearsay because it was made by an outsider and does not independently qualify for a hearsay exception. (correct answer)
Inadmissible in full because an accident report prepared by a security manager in response to a fall is inherently untrustworthy and therefore lacks the reliability required by the business-records exception.
Inadmissible in full because the security manager and the customer are both available to testify, and the business-records exception applies only when the person who made the recorded statement is unavailable.

Explanation: When you see a business record that contains someone else's out-of-court statement, treat the record as two separate hearsay layers. The business-records exception does not automatically launder an outsider's statement into admissibility; each layer of hearsay needs its own exception. Here, the security manager's own sentence—that he inspected the area and observed a puddle—is exactly what the business-records exception is for: created in the regular course of the store's business, kept as a regular practice, authenticated, and the manager is available to test the record's reliability. So that portion is admissible to prove the floor was wet. The customer's statement, however, is an outsider's assertion embedded in the report. Even though the manager accurately recorded it, Jane Doe had no business duty to report what she saw, and the report does not make her statement the store's record. The plaintiff is offering her statement for its truth—that she saw the plaintiff slip—so it must independently qualify under a hearsay exception. A vague statement made about one hour after the fall does not establish present sense impression or excited utterance; Jane Doe's availability does not cure hearsay. Thus, the observation portion comes in, but the customer's statement does not. The full-admissibility answer wrongly treats the customer's statement as merely part of the record. The "inherently untrustworthy" answer overstates the rule—accident reports can qualify and are excluded only when specific circumstances show untrustworthiness. The "available witnesses" answer misstates the law: the business-records exception does not require unavailability. On exam day, anytime a business record quotes a non-employee, ask: does that quoted statement have its own hearsay exception?

Question 10

A woman disappeared after telling her husband on the morning she left, "I am going to the ski resort today." Her family later sues the resort for wrongful death, claiming a defective chairlift killed her. To prove that she went to the resort that day, the husband testifies to her statement. The resort objects.

Which is the best analysis of the statement's admissibility?

Inadmissible, because the statement is about a past fact rather than a present condition.
Inadmissible, because the declarant is unavailable and the statement is not against her interest.
Admissible as a statement of then-existing intent, because her plan was to go to the resort. (correct answer)
Admissible as a present sense impression, because she stated her plan at the moment she made it.

Explanation: Whenever a hearsay objection is raised, ask two questions: what is the statement offered to prove, and which hearsay exception applies? Here the husband offers the wife's statement that she was going to the ski resort to show she planned to go—and therefore went—on the day she disappeared. That is the classic use of a statement of then-existing intent under the hearsay exception for present mental state. The statement is admissible because it describes her plan at the time it was made, and a person's declared intent is reliable enough to infer later conduct. The choice saying it is inadmissible because it concerns a past fact misses the mark: the statement expresses a present intent about future action, not a past event. The choice about unavailability and against interest is also wrong because this exception is under Rule 803, so the declarant need not be unavailable, and no against-interest showing is required. Finally, while a present sense impression is also a hearsay exception, that label does not fit: a present sense impression describes something the speaker is perceiving at the moment, not a plan or intention. The fact that she made the statement "at the moment" does not make it a present sense impression. Study tip: on evidence questions, match the exact statement to the exact exception. If the statement reveals a plan or intent, think Rule 803(3); if it describes an observed event, think present sense impression.

Question 11

A defendant is on trial for assault. The prosecutor offers a police report containing the arresting officer's statement, "I observed the defendant punch the victim in the face." The officer is not called to testify. The defendant objects.

Which is the best analysis of the report's admissibility?

Admissible under the public records exception, because the report sets out a matter observed by a public official under a legal duty to report.
Admissible under the business records exception, because police departments routinely prepare reports in the regular course of their official duties.
Inadmissible, because the public records exception requires a showing that the officer is unavailable.
Inadmissible under the public records exception, because in a criminal case a matter observed by law-enforcement personnel may not be admitted against the defendant. (correct answer)

Explanation: This question tests the hearsay exception for public records—and its criminal-case limit. Whenever a police report is offered against a criminal defendant, ask whether it contains a law-enforcement officer's observation of the event. Under FRE 803(8), public records are generally admissible for matters observed under a legal duty to report, but in a criminal case a matter observed by law-enforcement personnel cannot be admitted against the defendant. Here, the officer wrote, "I observed the defendant punch the victim in the face"—exactly the kind of firsthand law-enforcement observation the rule excludes. Because the officer is not testifying, the statement is hearsay and does not fit this exception. The "admissible under the public records exception" choice fails because it ignores this criminal-case bar. The "business records exception" choice is also wrong: although police reports may be business records, a prosecutor cannot use that exception to circumvent the specific public-records rule excluding law-enforcement observations in criminal cases. The "requires showing that the officer is unavailable" choice misunderstands the rule: unavailability is needed only for 804 exceptions, not for the 803 public-records exception. Strategy: when you see a public record offered in a criminal case, immediately check whether it contains a law-enforcement observation of the crime. If it does, it is inadmissible against the defendant unless the officer takes the stand.