With most jurisdictions assigning it a 50% weighting, the Multistate Bar Exam (MBE) is arguably the most significant component of the bar exam. And of the 175 scored multiple-choice questions tested on the MBE, 25 are on Evidence, making it an important topic for bar applicants to master.
As with all high-stakes exams, knowing what to expect on test day is a foundation for proper preparation; it always helps to know what you’re up against. If you want to take on Evidence with confidence, you’ll need to understand how to best approach each subtopic. We’ve put together a breakdown of all the Evidence subtopics, including percent tested and the number of questions (see table below):
|Topic||Percent Tested||# of Questions|
|Relevancy and Reasons for||33.3%||8-9|
|Excluding Relevant Evidence|
|Hearsay and Circumstances of its Admissibility||25%||6-7|
|Presentation of Evidence||25%||6-7|
|Privileges and Other Policy Exclusions||8.3%||2|
|Writings, Recordings, and Photographs||8.3%||2|
The fact is, Evidence can be tricky. Still, by focusing on three nuanced areas of Evidence law, you’ll be able to apply the best legal reasoning for analyzing the fact patterns in answering Evidence questions. Let’s explore some ways to approach Evidence questions on the MBE masterfully:
1. Impeachment can be a breeze if you ask yourself, “why and how?”
One area of Evidence many bar applicants struggle with is impeachment. Impeachment is how a party attacks the credibility of a witness. And the MBE Evidence questions are asked in a manner that could easily stump you if you fail to think critically.
The first thing to remember about impeachment is that a party can attack a witness’s testimony directly or present evidence that the witness is generally “a low-down lyin’ dog” by attacking the witness’s character for truthfulness.
Ways to attack a witness’s testimony directly include introducing evidence of bias, self-interest, or even a prior inconsistent statement. Keep your eyes peeled for facts showing that a witness has a reason to shade the truth or once said something that doesn’t align with their current testimony. Asking yourself if the evidence will put a hole in the witness’s testimony is an excellent way to determine if it’s admissible for impeachment purposes.
On the other hand, attacking a witness’s character for truthfulness can seem more confusing than a door that only opens if you pull. But if you commit to memorizing the proper ways to attack a witness’s character for truthfulness, you’ll be just fine.
To help you out, here’s a flowchart we’ve put together on impeachment:
2. Keep your eyes open for hearsay.
We’ve all been there—at the end of a hard day’s work, you meet up with some buddies at your local bar for a nice cold beer after having barely caught the last 15 minutes of happy hour. As you enjoy the refreshing taste of the chilled brew one satisfying gulp at a time, some loose-lipped fellow starts spouting off about what he heard someone else say “the other day.” Now, that’s probably hearsay, and every walking lie detector worth her salt knows that the best way to uncover the truth is to hear it straight from the horse’s mouth.
MBE Evidence is the same way. About a quarter of the MBE Evidence questions you see on the exam will be about hearsay or its exceptions, so you’ve got to be on the lookout for them. If a statement is made out of court and is being offered for the truth of the matter asserted, it is hearsay. Since hearsay statements aren’t straight from the horse’s mouth, they’re generally inadmissible.
However, the rule against hearsay has been scrutinized by legal minds over time. There are exclusions and exceptions to the rule that allow out-of-court statements to be admitted for their truth. Keep them honest by using this UWorld chart on hearsay:
3. Analyzing character evidence builds character.
Consider this scenario: Larcenous Lenny is a known thief and is often assumed the number one suspect when anything of value goes missing in his rural town. Surely, that information is admissible in Lenny’s cattle rustling trial to show that he acted according to that notorious character trait on the day he stole the unsuspecting rancher’s cattle, right?
Wrong! Character evidence is generally inadmissible to prove that someone acted per their character on the occasion in question. But like hearsay, there are many exceptions to the general prohibition on character evidence offered for this purpose.
For example, a criminal defendant can offer evidence of his good character for a trait pertinent to the charged crime. He can also provide evidence of the alleged victim’s relevant trait. But this opens the door for the prosecutor to introduce contrary character evidence.
Another exception to the general rule barring character evidence allows a party to introduce evidence about a witness’s character for truthfulness (see Methods of impeaching witness section above).
You’ll need to refer to Federal Rule of Evidence 404 to learn when you can use character evidence for propensity purposes. Our chart below simplifies the rule for you:
And once you’ve learned when you can use character evidence, turn to Federal Rule of Evidence 405 to brush up on the proper methods of introducing that evidence. Once again, we have summarized those methods for you in the handy chart below:
There you have it—everything you need to know about Evidence on the MBE. But before getting overconfident and heading off to face MBE Evidence prematurely, consider doing some target practice with a UWorld Evidence practice question:
Now, if you’ve been paying attention, you’d probably be able to guess that this is a hearsay question. Let’s start by asking ourselves a few questions:
- First: What’s the statement at issue? Here, the statement at issue is, “I’m pregnant with [the defendant’s] child.”
- Second: When was the statement made? We’re told the statement was made two days before the murder, so it was made out of court.
- Third: Who is the declarant? The statement was made by the defendant’s girlfriend, who is unavailable to testify because she’s dead.
- Fourth: Why is it being offered? We’re told that one of the issues in the trial is whether the girlfriend was pregnant. It seems, then, that this statement is being offered for the truth of the matter asserted—that the girlfriend is pregnant.
Before you get to the answer choices, you already know that this statement is probably inadmissible hearsay. So, now you need to consider whether any exceptions apply to this particular statement. Here’s how we worked this out:
Now that you know what to expect on the Evidence topic of the MBE, you are all set to tackle this beast. We wish you the best of luck!