Which is NOT an exception to the hearsay rule?

Which is NOT an exception to the hearsay rule?

• A. Dying declaration.
• B. Records of regularly conducted business activity.
• C. Learned treatises.
• D. Opinion testimony of a lay witness.

Answer: (D)

Hearsay is anything a party offers to prove the truth of the matter asserted, and normally it’s not admissible unless it fits one of the recognized exceptions. Among the listed items, the dying declaration, the records of regularly conducted business activity, and learned treatises all fit established exceptions. A dying declaration is admitted when a declarant, believing death to be imminent, makes a statement about the cause or circumstances of what they believe is their impending death. This is a longstanding exception because the declarant’s belief in imminent death and the reliability concerns it raises are thought to reduce the risk of misrepresentation. Records of regularly conducted business activity are admissible under the business records exception. If a memorandum or note was made in the normal course of business, kept as part of the business’s routine, and authenticated, it can be admitted even though it is hearsay. Learned treatises are recognized as a source that can be used by an expert and, under the relevant rule, can be admitted as evidence to support or explain an expert’s opinion. This fits the exception framework by allowing trustworthy authorities to bolster the credibility of specialized testimony. An opinion testimony of a lay witness, however, is not an exception to the hearsay rule. Lay opinions are allowed under the general rules governing admissible testimony because they are based on the witness’s direct perceptions and help the trier of fact understand the evidence. They are not a category of hearsay exception.

Hearsay is anything a party offers to prove the truth of the matter asserted, and normally it’s not admissible unless it fits one of the recognized exceptions. Among the listed items, the dying declaration, the records of regularly conducted business activity, and learned treatises all fit established exceptions.

A dying declaration is admitted when a declarant, believing death to be imminent, makes a statement about the cause or circumstances of what they believe is their impending death. This is a longstanding exception because the declarant’s belief in imminent death and the reliability concerns it raises are thought to reduce the risk of misrepresentation.

Records of regularly conducted business activity are admissible under the business records exception. If a memorandum or note was made in the normal course of business, kept as part of the business’s routine, and authenticated, it can be admitted even though it is hearsay.

Learned treatises are recognized as a source that can be used by an expert and, under the relevant rule, can be admitted as evidence to support or explain an expert’s opinion. This fits the exception framework by allowing trustworthy authorities to bolster the credibility of specialized testimony.

An opinion testimony of a lay witness, however, is not an exception to the hearsay rule. Lay opinions are allowed under the general rules governing admissible testimony because they are based on the witness’s direct perceptions and help the trier of fact understand the evidence. They are not a category of hearsay exception.