Evidence MBE Notes

1. Study only the Federal Rules of Evidence

 Look out for situations where the result under the FRE and the common law will be different.
2. Hearsay
 If you aren’t sure whether something is hearsay or not, try to identify the out-of-court declarant.
Remember, hearsay is an out-of-court statement offered to prove the truth of its assertion. If it’s a
statement, it must have a declarant. If you can’t identify one (i.e. the speaker of a comment, or the
writer of a document), then the item can’t be hearsay.
3. Know the requirements for the substantive use of prior inconsistent statements, prior consistent
statements, and statements of identifications.
 The one commonly encountered factor that makes prior statements of these three types inadmissible
is that the facts do not satisfy the “presently testifying witness” requirement. Therefore, whenever an
answer choice on the MBE mentions a prior identification, prior inconsistent statement, or prior
consistent statement, you can eliminate common distractors easily by checking to see if the declarant
is currently testifying. If he isn’t, that answer can’t possibly be correct!
 Prior statements of identification
o To apply this exception, the declarant must also be a currently testifying witness, subject to
cross-examination.
 Prior inconsistent statements
o Even if a prior inconsistent statement doesn’t meet all the requirements for substantive
admissibility, it will always be available, as non-hearsay, to impeach or rehabilitate a witness.
4. Know the requirements of admissibility on items like authentication and expert testimony.
 Photographs
o Expert testimony is not required to authenticate photographs. All that is required is a person
who saw the scene in question and can testify that the photograph fairly and accurately
represents or illustrates what it’s supposed to depict.
 Signatures
o Expert testimony isn’t required to authenticate a signature – anyone personally familiar with
an individual’s handwriting can testify as to its authenticity, as long as the familiarity was not
acquired for the purposes of the litigation.
5. Be thorough with the Best Evidence Rule.
 Under the Best Evidence Rule, where the material terms of a writing are at issue, the “original writing”
itself (which normally includes mechanical “duplicates,” such as photocopies) must be produced. Non-
mechanical copes and oral testimony concerning the writing’s contents are permissible only on a
showing that the original is unavailable and that its lack of availability is not the result of the
proponent’s serious misconduct.
o This means there are really only two situations in which the Best Evidence Rule requires that
the original document, if available, be introduced:
 (i) the terms of the writing are being proven; or
 (ii) the witness is testifying relying on the writing.
o Remember this rule only applies to material rules. A common trap on the MBE is to offer a
situation in which the witness is, in fact, testifying relying on a writing, but in which the subject
of the testimony is only a collateral matter (so the Best Evidence Rule doesn’t apply – making
the BER inapplicable where “the writing… is not closely related to a controlling issue.”).
EXAM TACTICS:

1. Break the question down to its theoretical basis.

 To avoid being misled, when you read an Evidence question, you should always ask yourself: What in
theory is going on here?
 First, identify what’s going on.
2. Eliminate answer choices that don’t apply to the facts.
 Any answer choice that doesn’t apply to the facts in the question can’t be the correct answer!
3. Know the doctrine of limited admissibility.
 For some MBE questions, it’s not enough to know that a piece of evidence is admissible; you must also
know for what purposes it’s admissible. A common trap in MBE questions is to make you forget that
evidence may be admissible for one purpose (which is given in one of the answer choices) and not for
another (which is given in another answer choice). You may be tricked into choosing a wrong answer if
you realize that an answer choice contains a correct rule, and so choose that answer. If the rule isn’t
applicable to the facts, you’ll be wrong!
4. Dealing with common answer choices to Evidence questions.
 “The testimony is inadmissible due to its self-serving nature.”
o This is a relatively common distractor. Whenever you see a choice like this, it’s incorrect,
regardless of the facts. The self-serving nature of the testimony affects its credibility, not its
admissibility.
 “Admissible as res gestae” or “Inadmissible as testimony on ultimate issues.”
o These alternatives are common distractors on the MBE. Don’t choose old rules like these.
o “Testimony on ultimate issues” is a limitation that is not recognized under the FRE.
 “Inadmissible because the declarant is unavailable to testify.”
o Although it can be correct, because a few hearsay exceptions do require that the declarant be
unavailable, for the majority of hearsay exceptions, unavailability is not required.
o The hallmark of the hearsay exceptions under the FRE is trustworthiness, not unavailability.
(The hearsay exceptions that do require unavailability includes prior testimony, dying
declarations, declarations against interest, and statements of pedigree.)
 “Inadmissible because the probative value of the evidence is substantially outweighed by the
probability of undue prejudice.”
o The best thing you can do is to keep in mind the type of evidence typically excluded under FRE
403: shocking evidence.
 “Inadmissible because it is hearsay not within any exception.”
o What the answer choice is really saying when it says “inadmissible as hearsay not within any
exception” is “inadmissible under any other answer choice for this question.” If you read it this
way, it becomes obvious that the only way to arrive at the “inadmissible” answer choice is
through a process of elimination.
o For “inadmissible” to be the correct choice, the other three alternatives must be clearly wrong.
 Avoid any answer choice stating a concept you don’t recognize.
 Avoid any answer choice that would exclude testimony because of witness incompetence.
o There are only two requirements: The witness must have personal knowledge of the matter on
which he will testify, and he must declare that he will testify truthfully, by oath or affirmation.
o Also, whenever you see “incompetence” as a possibility on the MBE, be careful not to confuse it
with bias – that’s normally what’s at issue when competence is raised as a possibility.
 How to handle any answer choice dealing with expert testimony.
o An expert may testify on three types of information: personal observation, facts presented to
the expert at trial (i.e. answering a hypothetical question), or facts introduced to the expert
 outside the courtroom (i.e. by technicians or consultants) of the type upon which experts in his
field reasonably rely.
o An expert may base his opinion on facts not in evidence and even on facts that could not be
admitted as evidence because they’re inadmissible hearsay. Thus, when you come across a
question on expert testimony, look closely before you decide the testimony is inadmissible.
 Answer choices dealing with admissions in conjunction with offers to settle or offers to pay medical
bills.
o The four possibilities under the FRE are: offers and payment of settlements themselves,
admissions in conjunctions with an offer to pay a settlement, offers and payment of medical
bills, and admissions in conjunction with an offer to pay medical bills.
 Of these four, all are inadmissible except admissions in conjunction with an offer to pay
medical bills. If you remember a simple word picture, you can easily memorize this rule.
 First, notice that the payment of settlements or of medical bills, as well as offers
to pay, are always inadmissible. Thus, it’s only the admissions that you have to
worry about: Admissions with medical bills are admissible, whereas admissions
with settlements are not.
 Admissions in conjunction with settlements are NOT admissible, and admissions
in conjunction with medical bills are.