Most Tested MBE Evidence Topics | BarPrepPlay

Overview

Evidence scores move when you can sort relevance, hearsay, character, impeachment, and privileges quickly. These are the topics worth making automatic.

1. Hearsay & Exceptions

Very High frequency

HEARSAY: Out-of-court statement offered to prove truth of matter asserted. NON-HEARSAY uses: Impeachment, verbal acts (contract words), effect on listener, state of mind circumstantially. DECLARANT UNAVAILABLE (804): Former testimony, dying declaration (FL: all criminal; Fed: homicide/civil), statement against interest, forfeiture. DECLARANT AVAILABLE (803): Present sense impression, excited utterance, state of mind, medical diagnosis, recorded recollection, business records, public records. FL DISTINCTIONS: Prior inconsistent under oath = substantive. Dying declarations in ALL criminal cases.

HYPO: D is on trial for robbery. W testifies she doesn't remember what she saw. Prosecution offers W's grand jury testimony identifying D. D objects as hearsay. ANALYSIS: Prior statement under oath at proceeding. FRE 801(d)(1)(A): Prior inconsistent statement under oath admissible as SUBSTANTIVE evidence if declarant testifies and subject to cross. "I don't remember" can be inconsistent with prior identification. FL even broader - any prior inconsistent under oath is substantive. W is on stand, can be cross-examined. RESULT: Grand jury testimony ADMISSIBLE substantively to prove D was robber.

• Exam shortcut: Know the definition and major exceptions

Section sources

2. Character Evidence

Very High frequency

GENERAL RULE: Character evidence inadmissible to prove action in conformity (propensity). CRIMINAL EXCEPTIONS: (1) D can offer pertinent trait by reputation/opinion; prosecution can rebut; (2) D can offer victim's trait (then prosecution can rebut AND offer D's same trait); (3) Homicide - prosecution can show victim's peacefulness if D claims self-defense. 404(b) MIMIC: Prior acts admissible for Motive, Intent, Mistake (absence), Identity, Common plan - NOT propensity. Must give notice. CIVIL: Generally no character, except when character is at issue (defamation, negligent entrustment). Sex offense cases have special rules (similar acts admissible).

HYPO: D charged with bank robbery where robber used a unique disguise (dressed as Elvis). Prosecution wants to introduce evidence D robbed two other banks using same Elvis disguise. D objects under 404(b). ANALYSIS: Not offered to prove D is "a robber" (propensity). Offered for IDENTITY - modus operandi so distinctive it's like a signature. The "common plan" must be truly distinctive, not just "used a gun." Elvis disguise is sufficiently unique. Court must still do 403 balancing - probative of identity vs. unfair prejudice. RESULT: Evidence ADMISSIBLE under 404(b) to prove identity through distinctive modus operandi.

• Exam shortcut: Criminal D opens door; MIMIC for 404(b)

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3. Relevance (401-403)

High frequency

RELEVANCE (401): Evidence having ANY tendency to make a fact of consequence more or less probable. Very low bar. EXCLUSION (403): Court MAY exclude if probative value SUBSTANTIALLY OUTWEIGHED by: unfair prejudice, confusion, misleading jury, undue delay, waste of time, cumulative. NOTE: Substantially outweighed - tips toward admissibility. SPECIAL RULES: Subsequent remedial measures (not for negligence/defect, yes for feasibility/ownership). Compromise offers/negotiations excluded. Plea negotiations excluded. Payment of medical expenses (statement accompanying = admissible). Liability insurance (not for negligence, yes for ownership/control).

HYPO: P sues trucking company for negligence after accident. P offers evidence that D's driver had 5 prior accidents. D objects under 403. ANALYSIS: Relevant? Prior accidents have SOME tendency to show driver's negligence (low 401 bar met). 403 balancing: (1) Probative value - moderate, shows pattern; (2) Prejudice - jury might convict for being "bad driver" rather than THIS accident; (3) Confusion - mini-trials on each prior accident. Are all 5 accidents similar circumstances? If different (weather, other driver's fault), less probative. RESULT: Court has DISCRETION. May admit one or two similar accidents but exclude others as cumulative/prejudicial. Key: Substantially outweighed standard favors admissibility.

• Exam shortcut: Any tendency to prove; 403 balancing

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4. Impeachment Methods

High frequency

METHODS: (1) BIAS - always relevant, extrinsic evidence allowed; (2) PRIOR INCONSISTENT STATEMENT - must give opportunity to explain; (3) CONTRADICTION - extrinsic evidence only for non-collateral matters; (4) SENSORY DEFECTS - perception, memory issues; (5) REPUTATION FOR UNTRUTHFULNESS - opinion or reputation; (6) PRIOR CONVICTION - crime of dishonesty (auto admit if <10 yrs), other felonies (403 balancing). PRIOR BAD ACTS for truthfulness - no extrinsic evidence (must accept denial). REHABILITATION: Prior consistent statement, good character for truthfulness (after attacked).

HYPO: Murder trial. Key witness W (prosecution) testifies D shot V. Defense asks: "Isn't it true you filed a false insurance claim 3 years ago?" W denies it. Defense wants to call insurance investigator to prove the false claim. ANALYSIS: This is PRIOR BAD ACT for truthfulness (609(b)). The act (false claim) reflects on credibility. BUT: Rule - No EXTRINSIC EVIDENCE allowed for prior bad acts. Must accept witness's denial. Can't call insurance investigator. Compare to BIAS: If W was paid by prosecution, CAN call extrinsic evidence because bias always provable. Compare to PRIOR CONVICTION: If W was CONVICTED of insurance fraud, admissible as crime of dishonesty. RESULT: Cannot call investigator. Must accept W's denial on the bad act.

• Exam shortcut: Prior conviction, bias, inconsistency

Section sources

5. Privileges

High frequency

ATTORNEY-CLIENT: Confidential communications for legal advice. Survives death. Exceptions: Crime-fraud, disputes between A-C, attested wills. SPOUSAL: (1) Testimonial - criminal only, covers all events, WITNESS holds in FL (defendant in federal); (2) Confidential communications - civil and criminal, covers only confidential marital communications, both hold. Ends at divorce (except confidential). PSYCHOTHERAPIST-PATIENT: Communications for treatment. PHYSICIAN-PATIENT: Not in federal courts. FL has. Work product protects attorney preparation but not underlying facts.

HYPO: H and W are married. H tells W in their bedroom: "I embezzled $500K from my company." They later divorce. H is prosecuted for embezzlement. Prosecution subpoenas W to testify about H's statement. H objects. ANALYSIS: Two privileges potentially apply: (1) SPOUSAL TESTIMONIAL: Can W refuse to testify at all? This ends at divorce - W CAN be compelled to testify. (2) CONFIDENTIAL COMMUNICATIONS: Covers private statements during marriage. Bedroom confession was confidential. Does divorce end it? NO - privilege survives divorce for communications made DURING marriage. Both spouses hold this privilege. RESULT: W cannot be compelled to testify about the statement. Confidential marital communication privilege applies despite divorce.

• Exam shortcut: A-C, spousal, psychotherapist

Section sources

Primary law and source anchors

• Federal Rule of Evidence 801 The definition of hearsay and what counts as an out-of-court statement.
• Federal Rule of Evidence 404(b) The non-propensity framework for prior-act evidence and MIMIC uses.
• Federal Rule of Evidence 613 Prior inconsistent statement impeachment mechanics and foundation rules.

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