Bar Exam (Next Generation) Quiz: Hearsay Exceptions When The Declarant Is Unavailable As A Witness
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Hearsay Exceptions When The Declarant Is Unavailable As A WitnessQuestion 1 of 12

At the defendant's first trial, which ended in a hung jury, an eyewitness testified for the prosecution and was cross-examined by the defense. Before the retrial, the witness suffered a stroke. At the retrial, she testifies under oath that she now has no memory of the events. The prosecution offers her testimony from the first trial.

Is the witness unavailable and the prior testimony admissible?

Yes, because the witness's lack of memory makes her unavailable, and the defense had an opportunity and similar motive to cross-examine her.
Yes, because former testimony is admissible whenever a witness is unavailable, regardless of any prior opportunity to cross-examine.
No, because memory loss is not a ground of unavailability unless it is shown to be permanent.
No, because the defense's cross-examination at the first trial was aimed at a different jury and is not a similar motive.
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Bar Exam (Next Generation) Quiz

Bar Exam (Next Generation) Quiz: Hearsay Exceptions When The Declarant Is Unavailable As A Witness

Practice Hearsay Exceptions When The Declarant Is Unavailable As A Witness 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 When The Declarant Is Unavailable As A Witness, 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

At the defendant's first trial, which ended in a hung jury, an eyewitness testified for the prosecution and was cross-examined by the defense. Before the retrial, the witness suffered a stroke. At the retrial, she testifies under oath that she now has no memory of the events. The prosecution offers her testimony from the first trial.

Is the witness unavailable and the prior testimony admissible?

  1. Yes, because the witness's lack of memory makes her unavailable, and the defense had an opportunity and similar motive to cross-examine her. (correct answer)
  2. Yes, because former testimony is admissible whenever a witness is unavailable, regardless of any prior opportunity to cross-examine.
  3. No, because memory loss is not a ground of unavailability unless it is shown to be permanent.
  4. No, because the defense's cross-examination at the first trial was aimed at a different jury and is not a similar motive.
Explanation: Whenever you see a former-testimony question, think of two separate hurdles: is the witness "unavailable," and did the opposing party have a fair chance to cross-examine? Here, the witness's stroke left her unable to remember the events, and she says so under oath. Under the rules, a witness who testifies to a lack of memory of the subject matter is unavailable — no showing of permanence is required. The prosecution's offer of her first-trial testimony therefore clears the unavailability requirement. The defense also had the required opportunity and similar motive to cross-examine her at the first trial: it was the same event, the same witness, and the same need to challenge her account. The fact that the first jury hung does not change the defense's motive. So the testimony is admissible. The choice saying former testimony is admissible whenever a witness is unavailable is wrong because unavailability alone is not enough — the prior opportunity and similar motive are essential. The choice demanding permanent memory loss is also wrong; the rule covers present lack of memory, not future permanence. And the choice claiming cross-examination before a different jury is not a similar motive confuses the jury with the motive — the defense's purpose was the same, and that is all the rule requires. Study tip: when you see "prior testimony," check unavailability first, then opportunity and similar motive. If both are satisfied, the testimony comes in.

Question 2

The defendant is charged with arson. He offers a signed statement by a now-deceased former employee of a rival business, which says: 'I set the fire because I hated the owner. The defendant had nothing to do with it.' The employee had previously denied any involvement, and no other evidence connects him to the fire.

Should the statement be admitted?

  1. Yes, as a statement against penal interest, because the declarant admitted to committing arson.
  2. Yes, because a criminal defendant may offer any hearsay statement by an unavailable declarant that tends to exculpate him.
  3. No, because a statement against penal interest may be offered only by the prosecution.
  4. No, because the statement is offered to exculpate the accused and is not corroborated by circumstances clearly indicating its trustworthiness. (correct answer)
Explanation: Whenever you see a hearsay exception involving an unavailable declarant, first identify who is offering the statement and for what purpose. Here, the declarant is dead, so the question is whether his signed confession fits the statement-against-penal-interest exception. A statement exposing the declarant to criminal liability can be admitted under that exception, but there is a special twist when a criminal defendant offers it to exculpate himself: the statement must be corroborated by circumstances clearly indicating its trustworthiness. This defendant offers the deceased employee's confession as his only evidence, and the employee previously denied involvement, so there is no independent corroboration. The statement therefore fails the rule's additional safeguard and should not be admitted. The first wrong choice, "yes, because the declarant admitted to committing arson," correctly identifies the statement as against penal interest but ignores the corroboration requirement for exculpatory statements. The second wrong choice, "yes, because a criminal defendant may offer any hearsay statement by an unavailable declarant that tends to exculpate him," is too broad—there is no blanket exception for all exculpatory hearsay. The third wrong choice, "no, because such a statement may be offered only by the prosecution," is simply backwards; both sides may offer statements against penal interest, but the defense must meet the corroboration requirement. Study tip: for statements against penal interest, always ask who is offering it. If the defense offers an exculpatory confession, hunt for corroborating circumstances—if the passage gives none, the answer is usually "not admissible."

Question 3

In a robbery prosecution, the store clerk identified the defendant to the police. Before trial, the defendant's girlfriend threatened the clerk: 'If you testify, you'll regret it.' The clerk then fled and refused to testify. The defendant did not know of the threat until after the clerk disappeared. The prosecution offers the clerk's identification.

Is the identification admissible under the forfeiture-by-wrongdoing exception?

  1. Yes, because the girlfriend's threat was intended to benefit the defendant and caused the clerk's unavailability.
  2. Yes, because a defendant is accountable for acts of people acting to advance his interests.
  3. No, because the clerk's statement to police was not former testimony and is therefore outside the exception.
  4. No, because the defendant did not wrongfully cause or acquiesce in causing the clerk's unavailability with the intent to prevent testimony. (correct answer)
Explanation: Whenever you see a forfeiture-by-wrongdoing question, remember that the hearsay exception under Rule 804(b)(6) is about the defendant's own culpability, not just the witness's unavailability. The prosecution must prove the defendant engaged in (or acquiesced to) wrongdoing with the primary purpose of preventing the witness from testifying. Here, the correct answer is No, because the defendant did not wrongfully cause or acquiesce in causing the clerk's unavailability with the intent to prevent testimony. The girlfriend acted unilaterally. The defendant didn't know of the threat until after the clerk disappeared, so he could not have caused, acquiesced to, or intended the witness's absence. Without that intent, the identification is inadmissible hearsay. The first wrong answer, "Yes, because the girlfriend's threat was intended to benefit the defendant and caused the clerk's unavailability," is a trap—benefiting the defendant is not the legal test. The exception requires the defendant's intent to thwart the proceeding, not a third party's independent desire to help. Similarly, "Yes, because a defendant is accountable for acts of people acting to advance his interests" misapplies agency principles; vicarious liability does not apply here unless the defendant knowingly directed or ratified the conduct. Finally, "No, because the clerk's statement to police was not former testimony" is a misconception—forfeiture by wrongdoing can waive any hearsay objection, not just former testimony, provided the defendant's misconduct is established. Study tip: When you see a forfeiture question, immediately ask two questions: Did the defendant personally cause or knowingly acquiesce to the wrongdoing? and Was the intent to prevent testimony? If either answer is "no," the exception fails.

Question 4

At Diaz's trial for fatally shooting a store owner, the prosecution's theory is that Diaz was the sole gunman. Roe, jailed on an unrelated charge, told a fellow inmate, "I shot the store owner." Roe died before trial. Diaz calls the fellow inmate to testify to Roe's statement and offers no other evidence to corroborate it. The court finds that Roe is unavailable and that the statement was against Roe's penal interest.

Is the fellow inmate's testimony about Roe's statement admissible?

  1. Yes, because Roe is unavailable and, as a statement against his penal interest, it is admissible regardless of who offers it.
  2. Yes, because the statement was a spontaneous declaration made before Roe had time to reflect and therefore is an excited utterance.
  3. No, because the exception for statements against penal interest may be invoked only when the statement is offered against the declarant.
  4. No, because an exculpatory statement against penal interest may be admitted only if corroborating circumstances clearly indicate its trustworthiness, and none were shown. (correct answer)
Explanation: When you see a hearsay question involving a confession, first identify who is offering it and against whom. Here, Roe's confession to a cellmate is a classic statement against penal interest, but Diaz—the defendant—offers it to exonerate himself. This distinction is the crux. When the prosecution offers a statement against penal interest, it is admissible without more. But when a defendant offers it (an exculpatory statement), the exception requires corroborating circumstances clearly indicating its trustworthiness. Since Diaz offers no other evidence to support Roe's confession, the statement lacks the required corroboration. Therefore, it is inadmissible. The first wrong choice, claiming admissibility regardless of who offers it, misses this corroboration requirement. The second choice mislabels it as an excited utterance—there is no startling event or stress, just a jailhouse confession. The third choice incorrectly states the exception applies only when offered against the declarant; it can be offered by the defendant, but with the extra hurdle. A common trap is assuming all statements against penal interest are treated equally. Remember: exculpatory ones need a "trustworthiness boost" through corroboration. On exam day, when you see a defendant offering another's confession, immediately scan for corroborating evidence—if missing, the statement is out.

Question 5

In an earlier lawsuit by a pedestrian against Driver One, a witness testified that a third car forced Driver One off the road. The witness has since died. In a new lawsuit by the same pedestrian against the manufacturer of the third car, the pedestrian offers the witness's prior testimony. The manufacturer was not a party to the earlier lawsuit and had no opportunity to cross-examine the witness.

Is the prior testimony admissible against the manufacturer?

  1. Yes, because the witness is unavailable and the earlier testimony was given under oath.
  2. Yes, because the pedestrian had a similar motive to present the witness's testimony in both cases.
  3. No, because the manufacturer did not have an opportunity and a similar motive to cross-examine the witness in the earlier suit. (correct answer)
  4. No, because former testimony may be used only in the same proceeding in which it was given.
Explanation: Whenever you see former testimony offered in a new lawsuit, think FRE 804(b)(1). That rule requires two things: the witness must be unavailable, and the party against whom the testimony is now offered (or a predecessor in interest) must have had an opportunity and a similar motive to cross-examine the witness in the earlier action. Here, the witness is dead, so unavailability is satisfied. However, the manufacturer is a brand-new party—it was not involved in the earlier suit against Driver One and had no chance to cross-examine the witness. That missing opportunity is fatal to admissibility, which is exactly why the correct answer is the one stating that the manufacturer lacked both the opportunity and a similar motive to cross-examine. Now let's address the distractors. The first wrong answer claims the testimony is admissible because the witness is unavailable and testified under oath. That is a trap—unavailability and oath are necessary but not sufficient; the opponent's prior opportunity to cross-examine is the critical element. The second wrong answer focuses on the pedestrian's similar motive to present the testimony. That gets the rule backwards—the relevant motive belongs to the opponent (the manufacturer) to cross-examine, not the proponent's motive to offer. Finally, the fourth choice asserts former testimony can only be used in the same proceeding. This is a misconception; former testimony is routinely admissible in a different proceeding as long as the cross-examination prong is satisfied. Your takeaway: when analyzing former testimony, always ask "Who is the current opponent, and did they (or a predecessor) have a chance to cross-examine in the prior case?" If not, the testimony fails—regardless of unavailability or oath.

Question 6

Two passengers were injured when a bus struck a tree. In the first passenger's suit against the bus company, a bystander testified that the bus had been speeding. The bus company's lawyer cross-examined her. Before the second passenger's suit against the bus company went to trial, the bystander died. The second passenger offers the bystander's testimony from the first trial. The bus company objects because the second passenger was not a party to the first suit.

Is the prior testimony admissible?

  1. No, because the bystander's testimony was not given in the second passenger's case.
  2. No, because the second passenger was not a party or a predecessor in interest to the first passenger.
  3. Yes, because the bus company had an opportunity and a similar motive to cross-examine the bystander in the first trial. (correct answer)
  4. Yes, because the bystander's statement that the bus was speeding was against her pecuniary interest.
Explanation: When you see a hearsay question involving testimony from a prior trial, think immediately of the former testimony exception. The key is not whether the two plaintiffs are the same person; it is whether the party against whom the testimony is now offered had a prior opportunity and similar motive to cross-examine the witness. Here, the bystander is unavailable because she died. Her testimony was given under oath at the first trial, and the bus company's lawyer actually cross-examined her about whether the bus was speeding. In the second passenger's suit, the testimony is offered against the bus company—the same party that already faced the witness. Because the bus company had the opportunity andld a similar motive to test the bystander's account, the testimony is admissible. That is exactly why "Yes, because the bus company had an opportunity and a similar motive to cross-examine" is correct. The second passenger's absent-party status does not matter; the former-testimony exception focuses on the adverse party's prior opportunity, not on privity with the earlier plaintiff. The wrong choices illustrate common misconceptions. "Not given in the second passenger's case" fails because prior testimony can come from a different proceeding. "Not a party or predecessor in interest" ignores that the relevant party is the bus company, not the second passenger. And "statement against her pecuniary interest" invokes an inapplicable exception—a casual statement about speeding is not the kind of declaration against financial interest hearsay exception covers. On exam, ask: Who is the testimony offered against, and did that party already have a chance to cross-examine? If yes, former testimony can be used even by a stranger to the earlier case.

Question 7

A factory worker was severely burned when a tank exploded. As paramedics loaded him into an ambulance, he said to his supervisor, 'I'm not going to survive this. The safety valve on the tank was shut off before I started work.' He died two days later. In a wrongful-death action against the tank manufacturer, the plaintiff offers the statement to prove the valve had been shut off.

Is the statement admissible?

  1. Yes, as a dying declaration, because the worker believed his death was imminent and the statement concerned the cause of the accident. (correct answer)
  2. Yes, as a statement against interest, because the worker's admission that he started work with the valve shut off exposed him to liability.
  3. No, because dying declarations are admissible only in homicide prosecutions.
  4. No, because the worker did not die until two days later, so the statement was not a dying declaration.
Explanation: This is a hearsay question, and the key is to focus on the dying declaration exception. The worker's statement to his supervisor is an out-of-court assertion offered to prove the valve was shut off, so it is hearsay. But under Federal Rule 804(b)(2), a statement made while the declarant believed his death was imminent, concerning the cause or circumstances of what he believed was impending death, is admissible—and not only in homicide prosecutions, but also in civil cases. Here, he said "I'm not going to survive this," which shows the required belief of imminent death, and his statement about the safety valve directly concerned the cause of the accident. The fact that he actually died two days later does not destroy the exception; what matters is his belief at the time he spoke, not how quickly death followed. The answer that dying declarations are admissible only in homicide prosecutions is wrong because the rule expressly allows them in civil cases, including a wrongful-death action. The answer claiming he did not die until two days later is also wrong for the same reason: the requirement is belief of impending death, not actual timing. The statement-against-interest option is misplaced because the statement does not admit wrongdoing or liability; it chiefly blames the manufacturer by describing the valve's condition, and it is not necessary to stretch another exception when dying declaration fits precisely. So the statement is admissible as a dying declaration.

Question 8

In a probate dispute over whether Marta was the decedent's adopted daughter, Marta offers a diary entry written by the decedent's mother, now deceased. The entry states: 'My son and his wife adopted a baby girl named Marta in 1995.'

Is the diary entry admissible under the hearsay exception for statements of personal or family history?

  1. Yes, because the declarant had no motive to lie about her son's adoption.
  2. Yes, because the declarant was related to the family and the statement concerns Marta's adoption. (correct answer)
  3. No, because a statement of personal or family history is admissible only if it is against the declarant's interest.
  4. No, because the declarant lacked personal knowledge of the adoption and was not Marta's mother.
Explanation: Whenever a hearsay question features a deceased declarant and a family relationship, immediately think about the unavailability-based exceptions in Rule 804 — specifically the statement of personal or family history, which covers birth, adoption, and marriage. Here, the diary entry fits that exception. The decedent's mother made the statement, so she was related to the family by blood, and the entry concerns Marta's adoption — a fact of family history for her son's family. Because the mother is deceased, she is unavailable, satisfying the Rule 804 threshold. This exception famously does not require personal knowledge: a family member may relay family history even if she learned it from others, and she need not be the mother of the person discussed — she only needs a qualifying family relationship. That defeats the "lacked personal knowledge and was not Marta's mother" objection. The "no motive to lie" rationale is also incomplete; although it might affect credibility, the rule's reliability comes from the family relationship and subject matter, not the declarant's honesty. And "against interest" is a separate 804(b)(3) exception — family-history statements do not have to be adverse to the declarant. So the entry is admissible because the declarant was related to the family and the statement concerns Marta's adoption.

Question 9

In a civil fraud case, the plaintiff's key witness, the defendant's former accountant, was deposed. Before trial, the plaintiff paid the accountant to move to another country and refuse to testify. The plaintiff now offers the accountant's deposition testimony, arguing that the accountant is absent and cannot be procured.

Should the deposition testimony be admitted?

  1. Yes, because the accountant is absent and the plaintiff cannot procure his attendance.
  2. Yes, because a deposition may be used whenever a witness is outside the country.
  3. No, because the plaintiff wrongfully caused the accountant's absence, so the accountant is not unavailable. (correct answer)
  4. No, because the defendant had no opportunity to cross-examine the accountant at the deposition.
Explanation: Whenever you see a deposition transcript or former testimony being offered, your first check is always whether the declarant is genuinely "unavailable" under Rule 804(a) — and critically, whether the party offering the statement caused that unavailability. That second step is the trap here. The plaintiff paid the accountant to flee the country specifically to prevent him from testifying. Under Rule 804(a)(4), a declarant is not unavailable if the proponent wrongfully caused their absence to keep them from testifying. This forfeiture rule exists to prevent a party from manufacturing a hearsay exception through its own misconduct. Since the plaintiff orchestrated the accountant's departure, the accountant is not legally unavailable, and the deposition cannot be admitted. Now look at the wrong answers. The first one, "Yes, because the accountant is absent and the plaintiff cannot procure his attendance," misses the point — the plaintiff can procure him, or at least cannot claim inability when he caused the absence himself. The second, "Yes, because a deposition may be used whenever a witness is outside the country," is a misconception; being outside the country is not automatic unavailability, and it certainly doesn't overcome the wrongful procurement problem. The last one, "No, because the defendant had no opportunity to cross-examine," is factually wrong — the deposition was held, and the defendant had the opportunity to cross-examine there; that element is satisfied. The issue is purely the manufactured unavailability. Your study tip: whenever you see a party claiming a witness is unavailable, immediately ask "who made them unavailable?" If the proponent did, the answer is almost always "not admissible." That pattern recurs on the bar.

Question 10

A shooting victim, in the emergency room, told a nurse, 'I think I'm going to make it, but if I don't, tell my wife that the guy with the tattoo shot me.' He died hours later. In the defendant's homicide trial, the prosecution offers the statement.

Is the statement admissible as a dying declaration?

  1. Yes, because the victim died from his wounds and identified the defendant as the shooter.
  2. Yes, because statements by homicide victims about the cause of their deaths are admissible.
  3. No, because the victim did not believe his death was imminent when he made the statement. (correct answer)
  4. No, because a dying declaration must be made to a law enforcement officer.
Explanation: Whenever you see a hearsay exception question, first identify the exception being tested. For a dying declaration, the key is not simply that the declarant died—it's that the declarant made the statement under a belief of impending death. Here, the victim said, "I think I'm going to make it, but if I don't," which shows hope and uncertainty, not the settled belief that death was imminent. That is why the statement fails the dying declaration exception and is inadmissible. The answer "Yes, because the victim died from his wounds and identified the defendant" misses this central requirement: death alone plus identification is insufficient. Similarly, "Yes, because statements by homicide victims about the cause of their deaths are admissible" is a dangerous overstatement—there is no blanket admissibility for homicide victims' statements; they still must satisfy a hearsay exception. And the last choice, "No, because a dying declaration must be made to a law enforcement officer," is simply wrong; dying declarations can be made to anyone, including a nurse or doctor. The only flaw here is the victim's lack of belief in impending death. Remember the exam's trap: watch for phrases like "I think I'll make it" or "if I don't survive"—they signal hope, not the requisite certainty. When you see a dying declaration question, ask yourself: did the declarant know death was inevitable? That state of mind is the whole ballgame.

Question 11

A contractor's employee installed a load-bearing beam incorrectly during a renovation. Several months after quitting, the employee wrote to the homeowner: 'I installed that beam wrong. It was my mistake.' The employee has since died. The homeowner sues the contractor for negligent work and offers the letter.

Is the letter admissible?

  1. Yes, as a statement of an opposing party's agent, because the employee was speaking about work he did for the contractor.
  2. Yes, as a statement against the employee's pecuniary interest, because it admitted conduct that could subject him to liability and he is unavailable. (correct answer)
  3. No, because the employee was not a party to the homeowner's suit.
  4. No, because the statement was made after the employee quit, so it was not against his interest.
Explanation: Whenever you see a hearsay question, first ask: is this an admission by a party-opponent, or a statement against interest? Both can let hearsay in, but they have different requirements. Here, the employee's letter says "I installed that beam wrong," and he is now dead. The correct answer is "Yes, as a statement against the employee's pecuniary interest." The declarant is unavailable because he died, and his statement admitted conduct that could subject him to civil liability. A reasonable person would not admit to installing a load-bearing beam incorrectly unless it was true, so this fits the statement-against-interest exception. The "statement of an opposing party's agent" choice is tempting, but a party-opponent admission under FRE 801(d)(2)(D) must be made during the agency relationship. Because the employee wrote the letter after quitting, he was no longer an agent, so that exception fails. The "employee was not a party" choice misunderstands the rule: a statement against interest does not require the declarant to be a party. Unavailability plus against-interest content is enough. The "statement was made after he quit, so it was not against his interest" choice confuses timing with interest. A statement can still be against your pecuniary interest after employment ends—quitting does not erase potential liability. Study tip: distinguish admissions (party/agent, no unavailability needed) from declarations against interest (unavailable declarant required, but declarant need not be a party).

Question 12

In a personal-injury suit against a trucking company, an eyewitness to the accident was deposed and testified that the truck ran a red light. The trucking company's lawyer cross-examined her at the deposition. Before trial, the eyewitness moved to another country. The plaintiff sent her emails, offered to pay travel expenses, and arranged a video link, but she refused to participate. The plaintiff offers the deposition transcript at trial. The trucking company objects, arguing the eyewitness is not unavailable.

Is the deposition transcript admissible?

  1. Yes, because the eyewitness is unavailable and the trucking company had an opportunity and similar motive to cross-examine her at the deposition. (correct answer)
  2. Yes, because the eyewitness's statement was against her pecuniary interest and the plaintiff made reasonable efforts to obtain her attendance.
  3. No, because a deposition may not be used unless the witness is dead or physically unable to testify.
  4. No, because the plaintiff failed to subpoena the eyewitness for trial, and a party cannot make a witness unavailable by failing to use process.
Explanation: Whenever a prior deposition transcript is offered at trial, your focus should be the former-testimony exception to the hearsay rule. Two elements matter: unavailability of the witness and a prior opportunity for the opposing party to cross-examine with a similar motive. Here the eyewitness moved abroad and, despite the plaintiff's emails, offer to pay travel expenses, and arranged video link, refused to appear. That makes her unavailable in the evidentiary sense: her absence could not be overcome by reasonable means. At the deposition, the trucking company's lawyer actually cross-examined her about whether the truck ran the red light, so the company had both the opportunity and a similar motive to test her testimony. The transcript is therefore admissible. The "dead or physically unable" option is too narrow—unavailability also includes a witness outside the country who refuses reasonable efforts to secure attendance. The "against pecuniary interest" option invokes the wrong hearsay exception; this is former testimony, not an interest-against-declarant statement. The "failed to subpoena" option misstates the facts and law: after the witness moved abroad, a trial subpoena could not practically compel her, and the plaintiff satisfied the reasonable-efforts requirement. Study tip: on bar questions, don't equate "unavailable" with dead. Reasonable efforts plus prior cross-examination usually means the transcript comes in.