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Memorizing Hearsay Exceptions as a Fad

Writer: Tommy SangchompuphenTommy Sangchompuphen

When it comes to hearsay, it’s important to know which exceptions to the hearsay rule that condition admissibility of the hearsay statement on the present unavailability of the declarant to testify, and conversely, which exceptions do not require that the declarant be unavailable.


There are only five important exceptions to the hearsay rule that condition admissibility of the hearsay statement on the present unavailability of the declarant to testify.


Know those five exceptions that require “unavailability,” then you also know that all the other exceptions fall into the category of “availability immaterial.”


Let me suggest FADSS for those exceptions that condition admissibility on the present unavailability of the declarant to testify.


Why FADSS? Well, what’s a fad?

Source: www.pancakebot.com

According to Lexico, a fad is “an intense and widely shared enthusiasm for something, especially one that is short-lived and without basis in the object's qualities; a craze.” Like my PancakeBot that I purchased in 2014—that’s a fad.


Now, hear me out. Remember that unavailability doesn’t require the declarant to be dead. That’s just one way. There are lots of ways where a declarant can be unavailable. For example, a declarant is unavailable if the person refuses to testify. There are several other reasons why a declarant might be unavailable, but this one is relevant to help me remember FADSS because if one is so steadfastly committed to refusing to testify, then that’s doing something that might be “without basis” and "crazy." Also, a fad is short-lived, meaning that it dies quickly. If something dies quickly, then it’s unavailable.


Now what does FADSS stand for?


F Former testimony

AAgainst interest (i.e., statement against interest)

DDying declaration

SStatement of personal or family history

SStatement offered against party procuring declarant’s unavailability


If you know these five “unavailability” exceptions, then you know, by elimination, that the remaining exceptions are ones where availability is immaterial.

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© 2025 by Tommy Sangchompuphen. 

The content on this blog reflects my personal views and experiences and do not represent the views or opinions of any other individual, organization, or institution. It is provided for informational purposes only and is not intended to constitute legal advice or create an attorney-client relationship. Readers should not act or refrain from acting based on any information contained in this blog without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.

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