Most Tested MBE Evidence Topics | BarPrepPlay

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. Confrontation Clause + Lab Certificates

High frequency

CRAWFORD line: A TESTIMONIAL hearsay statement cannot be admitted against a criminal defendant unless the declarant is unavailable AND the defendant had a prior opportunity to cross-examine. The PRIMARY PURPOSE TEST from Davis v. Washington distinguishes testimonial (gathering evidence for prosecution) from non-testimonial (resolving an ongoing emergency). MELENDEZ-DIAZ v. MASSACHUSETTS (2009): forensic lab certificates are testimonial — the analyst who performed the test must testify. BULLCOMING v. NEW MEXICO (2011): a surrogate analyst who did not perform or supervise the test cannot substitute. SMITH v. ARIZONA (2024): an expert may not be used to convey the substance of an absent analyst's testimonial statements (the underlying lab data and conclusions) for their truth — that is a Confrontation Clause violation. Smith does NOT bar genuinely independent expert opinion; it bars the workaround of letting an expert recite an absent analyst's assertions to the jury as fact. Forfeiture by wrongdoing (FRE 804(b)(6)) defeats the Confrontation Clause if the defendant intentionally caused the witness's unavailability.

HYPO: In a DUI prosecution, the State introduces a notarized blood-alcohol certificate without calling the analyst, but offers another lab supervisor to vouch that the lab's procedures are reliable. The defense objects on Confrontation Clause grounds. ANALYSIS: The certificate's primary purpose is prosecution — it is TESTIMONIAL under Melendez-Diaz. The substitute supervisor did not perform or supervise the actual test, so under Bullcoming the substitute cannot save the certificate. After Smith v. Arizona, the State also cannot use the substitute to convey the absent analyst's test results to the jury for their truth — Smith bars that conduit, even if the substitute frames the testimony as her "own opinion." RESULT: The certificate is INADMISSIBLE regardless of any FRE 803(8) public-record or 803(6) business-record foundation. The State must produce the testing analyst.

• Exam shortcut: Lab analysts must testify; no surrogate substitution

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4. Hearsay Diagnosis — Purpose Drives Admissibility

High frequency

Step 1: Is there an out-of-court STATEMENT? (Includes assertive conduct.) Step 2: Is it offered for the TRUTH of the matter asserted? If NO, it is non-hearsay and can come in for the limited non-truth purpose. Common NON-TRUTH purposes: (a) EFFECT ON LISTENER (notice, fear, motive); (b) VERBAL ACT or words of legal significance (offer, acceptance, defamation, threat); (c) STATE OF MIND CIRCUMSTANTIALLY (a statement that proves the speaker had a belief, not that the belief was correct); (d) IMPEACHMENT (prior inconsistent statement); (e) PRIOR IDENTIFICATION when declarant testifies (FRE 801(d)(1)(C)). Step 3: If hearsay, run FRE 801(d) exclusions, then FRE 803, then FRE 804, then FRE 807. A limiting instruction (FRE 105) often makes a non-truth offer admissible even where the truth offer would fail.

HYPO: In a negligence suit against a landlord, plaintiff testifies that two days before the fall, she heard another tenant tell the landlord, "The third step is broken — somebody is going to get hurt." The landlord objects: hearsay. ANALYSIS: The statement is being offered to show that the landlord had NOTICE that the step was dangerous — not to prove that the step was actually broken (a fact plaintiff can establish another way). This is the EFFECT ON LISTENER non-truth purpose. The statement is NOT hearsay for that limited purpose. A limiting instruction may be requested under FRE 105 so the jury uses it for notice only. RESULT: Admissible as non-hearsay; the landlord's motion is denied.

• Exam shortcut: Always ask "offered for the truth?" first

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5. 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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