Evidence

Key Concepts to Know & How To Study for the MBE

The Multistate Bar Examination (MBE®) is a six-hour exam featuring 200 questions. Though you must answer all 200, only 175 questions on the evidence bar exam are scored. Below, we answer common questions about MBE subject Evidence.

First implemented by the National Conference of Bar Examiners (NCBE®) back in 1972, evidence is an essential subject on the MBE. You can expect approximately 25 questions relating to evidence, emphasizing relevance, hearsay, witness impeachment, and character evidence. You can expect about eight or nine questions about relevancy, with another six or seven about hearsay and presentation.

Evidence Breakdown by Topic, Weightage and Tested Questions

The NCBE placed the highest emphasis on questions about relevancy and the reasons for excluding relevant evidence on the evidence bar exam because it allows examinees to demonstrate legal reasoning based on the pattern of facts presented to them. Without the determination of relevancy, evidence such as photographs and oral testimony is irrelevant.

As such, the entire case can fall apart. This graphic below shows you how the subtopics on the evidence bar exam are graded and why:

Evidence Subtopics % Tested No. of Questions
Relevancy and reasons for excluding relevant evidence 33.3% 8-9
Hearsay and circumstances of its admissibility 25.0% 6-7
Presentation of evidence 25.0% 6-7
Privileges and other policy exclusions 8.3% 2
Writings, recordings, and photographs 8.3% 2
Total Scored questions for Evidence 25

The relevancy and reasons for excluding relevant evidence section takes up the largest percentage of the questions asked in this bar exam section. There are about eight or nine questions in total. As you'll see below, this section covers probative value, authentication and identification, and expert testimony topics. Here's what you should know about MBE subjects & format:

The hearsay and other circumstances of the admissibility section covers 25% of the evidence portion of the MBE. This section will cover the definition of hearsay and what exclusions and exceptions can be made where hearsay can be admitted as evidence.

Like hearsay, the presentation of evidence covers 25% of the evidence portion of the MBE. You will need to know concepts like the introduction of evidence, presumptions, and impeachment of a witness. Knowing this about the MBE exam can help you pass.

The privileges and other policy exclusions section takes up only 8.3% of the evidence portion of the MBE. While it's a small portion of this section, it's important to know concepts like spousal privilege, work product, insurance coverage, and other privileges.

Like the section on privileges, the writings, recordings, and photographs portion only consists of 2 questions, making up 8.3% of the evidence portion. You'll need to know concepts like the original requirement, summaries, and the completion rule.

Relevancy and reasons for excluding relevant evidence

A piece of evidence must be authenticated when it is being submitted for admission. The person submitting the evidence must provide significant proof that the evidence is what they state it to be. There are several reasons for excluding relevant evidence. Relevant evidence can be excluded if the probable prejudicial effect is more than its probative value.

For a piece of evidence with any sort of probative value to be admitted, it must be relevant to the case. No matter how slight the probability is, relevance is what ultimately determines if it should be included or not. A piece of evidence, no matter how relevant, may be excluded if its probative value is considered confusing, prejudiced in any way, or deemed a complete waste of time.

If you are planning to submit character evidence into a case for consideration, you should consider a few things first. Generally speaking, character isn’t admissible in court. There are a few exceptions for certain cases, like where a defendant may raise the issue with character. This is not because it’s irrelevant but because it relies heavily on persuading the jury to overlook a potential bad history to judge this specific case. There are three methods of proving character:

  1. Get a witness' testimony about a person's trait within the community.
  2. Get a witness with personal knowledge of the pertinent trait.
  3. The witness testifies about specific instances of a person's behavior that infer character.

A routine practice of a business or a person's habits may be admitted to prove that the person in question is in line with their routine. This can be admitted to the court without corroboration or eye witness. An expert testimony is stated during a trial by an expert witness on any subject that is relevant to the case being tried. Their fields of expertise are usually scientific or technical. Not only does each expert need to have relevant and reliable knowledge to the case, but their knowledge must have substance to it. Usually, the more qualifications and credentials an expert witness has, the less likely they will be disqualified from the trial.

An expert must base their opinion of the case on facts and data they have personally observed. If an expert is duly qualified, they may provide an opinion on the case as a whole. In general, lay witnesses are not allowed to give opinions unless authorized by the rules of evidence.

It is up to the court to determine the reliability and relevance of the expert testimony. The court can dismiss this witness if these cannot be established well enough. An expert witness is knowledgeable in either scientific or technical matters. They must have the knowledge, skill, education, experience, or training in the subject matter.

What about other types of evidence, like real or demonstrative evidence? Real evidence is physical evidence. Demonstrative evidence is usually things like charts or diagrams. Experimental evidence is when an experiment is performed in court to prove contention. Any other crime, act, transaction, or event is not admissible when proving that they have acted in character. If a defendant has been previously convicted of a sex offense, the prior offense can be admitted as evidence. These kinds of cases include child molestation cases and sexual assault.

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Hearsay and circumstances of its admissibility

Hearsay is a statement that is made outside of court that is offered to prove that something is truthful. Hearsay is usually inadmissible unless an exception is made. An exception may be a statement of the declarant’s frame of mind, sensory, emotional, or physical condition at the time. Statements of memory or belief are not admissible.

For example, previous testimony, as it relates to the current case, can be an exception to hearsay. This is used when a declarant is unavailable for cross-examination or if one wishes to develop the testimony during cross-examination. Other exceptions to the hearsay rule include statements by an authorized spokesperson, principal-agency statements, statements made between business partners, and statements made between co-conspirators.

Prior statements made by a witness can be admissible if the party admitting the statement discloses it to the other party's attorney. Generally, present sense is admissible if it describes an event as it was happening or immediately after. An excited utterance, which is when a statement is made while under the stress of excitement, can also be admissible.

Any hearsay that might be tied to a medical record that can prove factual information is also admissible. This is because a medical professional made a diagnosis or treatment based on professional knowledge.

Other things like business records, public records/reports, and learned treatises are usually considered to be admissible. Business records are assumed to have a level of truth; therefore, they're typically exempt from hearsay. This exemption plays a heavy role in business litigation. Likewise, records, including vital information or a public office's activities, are also usually admissible. However, public records and reports are only admissible if the opposition party doesn't cast doubt on them.

Learned treatises may be admissible if an expert relies on them or if they're brought to their attention during the examination. These include treatises, pamphlets, and periodicals.

A witness has to be given the opportunity to explain their prior statement. A party-opponent making an admission is excluded from hearsay because it falls under an adversary system instead of qualifying as hearsay. If parts of each hearsay, also known as "hearsay within hearsay" combine to make an exception to the rule, hearsay can be admissible. An exception to this allows a witness to read a writing if they have forgotten about it, they wrote it, they see it, and it doesn't jog their memory, or if the witness can attest that it was accurate at the time it was written.

Statements made by someone who puts them at a severe disadvantage over not saying anything are considered credible and admissible. The Sixth Amendment states that anyone accused of a crime has the right to confront a witness. Using hearsay in a criminal case can violate this amendment.

Presentation of evidence

The presentation of evidence is one of the most commonly tested questions on the MBE, accounting for six to seven questions. When submitting a piece of evidence, it must first be authenticated. The person submitting it must provide enough support to prove that the evidence is what they say it is before it is admitted to the court to prove a fact in a case.

Evidence can either be physical like public records or a recording, or include the testimony of a witness with knowledge or comparison by an expert witness of a trier or fact. This is done through a mode and order process, in which both evidence is presented and witnesses are examined in court. To avoid wasting time, reasonable control by the court should be exercised to make the procedures aimed at deciding the truth efficient and prevent the witnesses from being either harassed or embarrassed.

A lawyer can object to the admissibility of evidence at trial. The other lawyer can counter the objection by describing the evidence and explaining its relevance to the case to make it admissible. If the judge can be persuaded, the evidence may be included in the trial. Evidence that is admissible for one party, but not the other is considered to have limited admissibility. Usually, one party will admit it for one reason, while the other party won't be able to admit it under different circumstances. In situations like this, the scope of evidence will be restricted by the court, and the jury will be instructed on how to move forward.

Remember, the judge is there to decide an issue of law. The jury decides which issues in a case are fact and apply those facts to the law to come to a verdict. They work together to decide the outcome of a case. Judicial notice is made when a fact has been presented as true despite no formal presentation of evidence. These facts are usually indisputable and, in civil cases, considered conclusive. These are historical records, public records, or what time the sun set that day.

When it comes to evidence in the form of witness testimony, you can have a witness testify only if the evidence suggests that they have personal knowledge of the situation. All witnesses are considered competent unless proven otherwise. As long as a witness can observe, recall, and relate facts accurately, they are deemed competent. If a witness cannot observe, recall, and relate, they would be considered unable to give accurate testimony. This leaves it up to the jury to decide if the witness is deemed competent when rendering a verdict.

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Master Real Property questions on the MBE.

A witness may give a testimony to prove their knowledge of the situation. This rule does not apply to expert testimony. When a witness might have difficulty remembering, a lawyer can show the witness a document that may help jog their memory. If the witness starts to remember based on seeing the document, the document is then removed, and the witness is expected to recall from their memory. A lay opinion can be helpful in a fact in an issue. A lay opinion is only allowed if it’s based on the perception of a rational witness. This does not allow for specific knowledge, such as technical or scientific knowledge.

Remember that a witness can be impeached to call into question their credibility. This can be done with a contradiction, meaning that a witness’s testimony can be contradicted if they make two different statements in court. A witness that has been rehabilitated has their credibility rebuilt on a limited scope based on what a principal witness has established as the truth. If a witness gives a testimony that is inconsistent with prior statements, their prior statement can be brought up during cross-examination. It may only be submitted as evidence if the witness is given the opportunity to explain the discrepancy during cross-examination. The court can decide that a specific testimony is false if it's contradicted by evidence that proves otherwise. The testimony in question has to be relevant to the credibility of the question being asked and the case itself.

Cross-examination should be kept to the subject at hand and to matters in regard to a witness's credibility. Furthermore, questions cannot be leading unless it is necessary to develop the testimony of a witness in cases of cross-examination or when a party calls out an adverse party or hostile witness. If requested by a certain party, witnesses can be excluded so they cannot hear other witnesses' testimony. The court can also order this. Additional matters may be allowed only on direct examination.

During a trial, specific instances of conduct can be called into question. These aren’t criminal convictions, but specific actions that may call into question how truthful the witness will be. If there is evidence that a witness shows bias or interest, it does not prove that a witness is untruthful, unlike conviction of a crime, corruption, or other forms of misconduct.

You cannot use a bias or an interest to attack someone’s character. A witness’ character can be attacked if they have a reputation for being truthful or untruthful. Evidence of a witness's truthfulness can only be admitted after their character has been attacked. If a declarant of hearsay testifies as a witness, their credibility may be attacked by the evidence. This evidence usually suggests that the declarant has had inconsistent statements or conduct.

However, if you are trying to impeach a witness on the grounds that they have been convicted of a crime, that crime must have been punishable by either a year in prison or death. If the witness' conviction happened more than ten years ago, there are limits to using it as a means to impeach. If the conviction has been pardoned, annulled, or given a certificate of rehabilitation, the conviction cannot be used as a means of impeachment.

There are two ways a witness can be rehabilitated. Either evidence that proves their truthfulness and honesty has to be introduced, or evidence of a prior statement that corroborates their truthful nature has to be introduced into evidence.

Privileges and other policy exclusions

It is a good idea to take the time to familiarize yourself with the various privileges and other policy exclusions you may face in court. These privileges and exclusions include marital communications, doctor-patient communication, and attorney-client privileges (and others, which we'll describe below).

There are two kinds of spousal privilege:

  • "Spousal communications privilege" means anything shared in confidence in a valid marriage cannot be used in court.
  • "Spousal testimonial privilege" means that spouses do not have to testify against each other in court.

Likewise, communications between attorneys and their clients are confidential and cannot be admitted as evidence. The work-product doctrine means that any materials that may have been prepared in anticipation of litigation cannot be used as discovery by the opposing counsel.

Communications between a patient and their physician or psychotherapist are also considered confidential. The only time this confidentiality is waived is in a case where a lawsuit is filed based on someone's health. However, any compromise, including offering to pay for medical expenses or any record of plea negotiations, is not admissible in court.

There are a few exceptions to this, such as if you're going to prove a witness' bias in court or proving that there was an attempt to obstruct a criminal investigation. Insurance also can't be submitted as evidence. This is because a fact-finder's knowledge of the situation may prejudice the insured due to improper considerations.

Another privilege is the clergy-penitent privilege. If someone discloses something to a clergyman, that communication can remain confidential. The term “clergyman” encompasses different religions and includes priests, rabbis, ministers, and similar figures in other religions.

If someone takes measures to rectify the harm done to them after they've been harmed, the remedial measures are not admissible in court. This is usually in cases involving negligence, product defects, or negligence. The past sexual conduct of a victim is not admissible in a case. The exception would be for specific instances during criminal cases and civil cases.

Writings, recordings, and photographs

In order to be admissible, an original writing, recording, or photograph must be submitted to the court. This is so the contents of the piece of evidence can be proved.

In cases where writings, recordings, and photographs are so voluminous that they can’t be examined in court, a summary, chart, or calculation that proves the content can be used instead. The original material must be made available for examination, and the court may ask the proponent to produce the original materials if necessary.

Simply put, if one part of something is admitted into evidence, the rest of that thing is also available for examination. For example, if you submit just part of a specific writing as evidence, the opposing party also has a right to use the rest of that writing as evidence.

How to Study for Evidence on the MBE

The best way to conquer evidence on the MBE is to know what you’re up against, including MBE subjects & format. Focusing on the three most nuanced areas of evidence law allows you to use the best legal reasoning when answering questions and then familiarize yourself with an evidence outline.

  • Spotting and Analyzing Hearsay
    Hearsay is an out-of-court statement that is offered to prove the truth about a statement. You should ask why the other party is offering this statement. You’ll have to assess if it falls into either an exclusion or exception. If it does, then it may be admitted. But, if it doesn’t fall into an exclusion or exception, then it is considered hearsay and inadmissible.
  • Past Recollection Recorded vs Present Recollection Refreshed
    These are similar concepts, but the easy way to remember the distinction is that a lawyer can refresh a witness's present recollection as long as they continue to recall their testimony from memory once it's been restored. However, if this doesn't work, the recorded evidence may be read into evidence as long as the witness once knew the recorded information but can't recall it. The witness made or adopted the record when it was fresh in their mind. The record accurately reflects the witness's personal knowledge.
  • Attorney-Client Privilege
    The Attorney-Client Privilege protects all communications between you and your client that are made to obtain legal advice and are intended to be kept confidential. Attorney-Client Privilege appears on the MBE with three kinds of traps. These traps include communications that are merely incidental to legal representation, communications heard by a third party, and communications made to an attorney’s agent.

Learn and memorize the Federal Rules of Evidence

First introduced in 1975, the Federal Rules of Evidence govern the introduction of evidence that can be presented to both the courts and jury. There are over 1,000 Federal Rules of Evidence and MBE subjects you’ll have to know in order to pass.

Know about highly tested issues

Familiarize yourself with the most highly-tested topics relating to MBE evidence: relevancy, hearsay, and presentation of evidence. Each topic accounts for approximately seven to nine questions. The more you know about MBE, the better. To help you study, create an evidence outline.

Practice

One thing you should know about the MBE exam is that your score is worth 50% of your total bar exam. Since there are only 175 questions, you need to get as high a score as possible. The more you practice, the higher the likelihood you’ll have of passing. Comb through the practice questions and memorize the subjects covered in other parts of the test.

Evidence Sample Questions and Answers

Questions about MBE exam? Now that you’ve gone through what to expect on the MBE and why, let’s tackle some sample questions to test your knowledge. These evidence MBE practice questions are taken directly from UWorld MBE QBank. You can expect to run into similar MBE evidence sample test questions on your exam:

A plaintiff sued a defendant for negligence to recover damages that the plaintiff suffered as a result of a crash between the two parties. At trial, the plaintiff's attorney called the plaintiff's wife to testify as to what she witnessed on the day of the crash. On cross-examination of the wife, the defendant's lawyer elicited several responses that tended to show that the plaintiff's actions constituted contributory negligence. The plaintiff's attorney seeks to ask the wife several questions on redirect examination, but the defendant's attorney objected.

What is the strongest argument that the court must allow redirect examination of the wife?

  1. The plaintiff's attorney failed to provide all significant information on direct examination.
  2. The plaintiff's attorney seeks to reiterate the necessary elements of the claim.
  3. The plaintiff's attorney seeks to reply to all matters raised on cross-examination.
  4. The plaintiff's attorney seeks to reply to significant new matters raised on cross-examination.
Submit

A plaintiff sued a defendant in federal court in connection with the dissolution of a franchise. In response to the plaintiff's request for production, the defendant provided his attorney with thousands of documents pertaining to the franchise. Included in those documents was a letter that the defendant had written to his attorney, which discussed the defendant's understanding of the agreement to dissolve the franchise. The defendant had given the letter to his nephew to proofread before delivering it to his attorney. Before producing these documents to the plaintiff, the defendant's attorney took reasonable steps to redact any privileged information but did not notice the defendant's letter. As a result, the letter was turned over to the plaintiff. The defendant's attorney later learned of the inadvertent disclosure but did nothing to rectify the error.

The plaintiff seeks to introduce the letter into evidence at trial. The defendant has objected, invoking the attorney-client privilege.

Should the court uphold the defendant's privilege claim?

  1. No, because the defendant's attorney waived the privilege by failing to take reasonable steps to rectify the error.
  2. No, because the letter was disclosed to the defendant's nephew and therefore is not privileged.
  3. Yes, because the defendant holds the privilege and the attorney cannot waive the privilege on the defendant's behalf.
  4. Yes, because the defendant's attorney may claim the privilege on the defendant's behalf.
Submit

A plaintiff brought a wrongful death action against a defendant following the death of her husband. The plaintiff's husband was in a collision with the defendant and died one week later from a massive brain hemorrhage. The cause of the brain hemorrhage is disputed. At trial, the plaintiff called a medical expert who testified that, in her expert opinion, the husband's brain hemorrhage was caused by the collision and not a congenital defect in his artery. The expert further testified that her opinion was based in part on information contained in a private and nonroutine letter that a medical examiner had written for the husband's life insurance company after the husband's autopsy explaining his injuries and cause of death. The plaintiff now seeks disclose the contents of the letter to the jury.

Is the jury entitled to hear this evidence?

  1. No, because the expert lacks personal knowledge of the autopsy.
  2. No, because the contents of the medical examiner's letter are hearsay and cannot be heard by the jury.
  3. Yes, because all facts relied upon in forming the bases of an expert opinion are automatically admitted into evidence.
  4. Yes, provided that its probative value in helping the jury evaluate the expert's opinion substantially outweighs its prejudicial effect.
Submit

Frequently Asked Questions

The five MBE evidence topics covered are relevancy/reasons for excluding relevant evidence, presentation of evidence, hearsay and when it’s admissible in court, privileges and other types of policy exclusions, and recordings, photographs, and writings.
For evidence to be admissible in court, it must be material, competent, and relevant. It also must be able to prove or disprove facts, or at the very least increase or decrease the likelihood of a fact that has been presented.
The two main types of evidence are testimonial evidence and physical evidence. Physical evidence is anything physical that can be submitted such as photos, documents, and recordings. Testimonial evidence is the evidence that is presented by a witness when they take the stand.
The best way to analyze an MBE evidence question is to determine the fact pattern. Then, read the call of the question. Try answering the question before you see your choices, and then pick the choice that best suits the conclusion you came to.
The most tested topics in MBE evidence are relevancy, hearsay, and presentation of evidence. These three sections make up 83% of the Evidence section of the MBE.

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