MBE Evidence

Question 1

FRE do not apply to:

Answer 1

1. Court determinations of a preliminary question of fact governing admissibility
2. Grand jury proceedings
3. Criminal proceedings for: issuance of a warrant/summons, preliminary exam of a case, extradition/rendition, bail, sentencing, things to do with probation/supervised release

Question 2

How to challenge an evidence ruling

Answer 2

Objection - if evidence is admitted

Offer of Proof - if evidence is excluded

Question 3

Judicial Notice

Answer 3

Court’s acceptance of a fact as true without requiring formal proof (like that the day was a Friday)

Adjudicative Facts (typically decided by jury): subject to judicial notice if not subject to reasonable dispute because either generally known or can be readily determined from reliable sources

Civil case: instruct jury they are conclusive
Criminal case: instruct jury that it may or may not accept as conclusive

Question 4

Improper Questions

Answer 4

Leading: suggest the answer within the question (no on direct; yes on cross exam)

Compound: requires answers to multiple questions

Assumes Facts Not Yet in Evidence: assumes as true facts that haven’t been established yet

Argumentative: intended to present an argument not elicit a factual response

Calls for conclusion/opinion: requires witness to draw a conclusion or state an opinion they aren’t qualified to make

Repetitive: already asked and answered

Lack of Foundation: failure to establish necessary predicate (like authentication of tangible evidence)

Question 5

Witnesses that may not be excluded from the courtroom

Answer 5

Natural person parties to the case

Individual designated as a representative of non-natural person parties

People essential to a party’s presentation of the case

People whose presence is permitted by statute (i.e., victim)

Question 6

Burden of Proof

Answer 6

Production: legally sufficient evidence for each element of a claim such that a reasonable trier of fact could infer it has been proven

Persuasion

• Civil: preponderance (clear and convincing sometimes)
• Criminal: beyond a reasonable doubt

Question 7

Rebuttable Presumption Impact on Burden of Proof

Answer 7

Shift burden of production, NOT persuasion, to the opposing party

Question 8

Presumption from Destruction of Evidence

Answer 8

Rebuttable presumption that the evidence would be unfavorable to the destroying party if the other party establishes:

1. Destruction was intentional
2. Evidence is relevant
3. Alleged victim acted with due diligence as to the destroyed evidence

Question 9

Relevance

Answer 9

Makes the fact at issue more likely than it would be without the evidence

Must be material (related to an issue in the case) and probative (having a tendency to prove or disprove some fact)

Question 10

When Character Evidence is Allowed

Answer 10

Civil: only when character is an essential element of a claim or defense (usually defamation, negligent hiring/entrustment, child custody, etc.)

Criminal: Defendant may introduce evidence of own good character or victim’s bad character (relevant to the charge)
- Once defendant does that, the door opens for prosecution to introduce evidence that victim’s character isn’t bad, AND that defendant’s character IS bad (same trait)

Question 11

When Specific Bad Acts can be used (MIMIC)

Answer 11

Motive
Intent
Absence of Mistake
Identity
Common Plan

Can also be used on cross when examining a character witness

Question 12

Crimes that can be used to impeach

Answer 12

Convictions NOT ARRESTS

Dishonesty/False Statement or Felonies >1 year

If > 10 years ago, must prove probative value outweighs prejudicial effect

Pardons etc. - No
Juvenile records - can’t use against defendant, can use against other witnesses for truthfulness in criminal cases if an adult’s conviction for the same offense would be admissible

Question 13

Present Recollection Refreshed

Answer 13

Witness examines an item to refresh their present recollection, but testimony must be on recollection no the item

Adverse party may inspect the item and enter relevant portions into evidence

Question 14

Past Recollection Recorded

Answer 14

Memo/record of a matter the witness once had knowledge of but can’t remember now

May be admissible under the recorded recollection hearsay exception and red into evidence ONLY if offered by an adverse party

Question 15

Lay Witness Testimony

Answer 15

Usually must be regarding facts they have personal knowledge of

May offer opinions if:

1. Rationally based on their perception
2. Helpful to clear understanding of their testimony or determination of a fact at issue
3. Not based on scientific, technical, or specialized knowledge

Question 16

Expert Witness Testimony

Answer 16

Must be scientific, technical, or of specialized knowledge that helps the trier of fact understand evidence or determine a fact at issue

Most courts say it can’t go to the credibility of a witness (that’s for the jury to decide)

Can’t testify as to whether a defendant had the requisite mental state

Question 17

Qualified Expert Requirements

Answer 17

1. Knowledge, skill, experience, training, or education
2. Testimony based on sufficient facts/data
3. Testimony is the product of reliable principles and methods that were applied reliably to the facts of the case
4. There’s a reasonable degree of certainty (i.e., “probably”)

Question 18

Best Evidence Rule

Answer 18

Original (or reliable duplicate) must be produced to prove the contents when the contents are at issue or a witness is relying on the contents when testifying

Originals not required if destroyed in good faith, collateral, or the other party has it and didn’t produce it

Voluminous documents can be introduced as a summary or chart

Question 19

Types of Privileges

Answer 19

Attorney-Client
    Work Product
Spousal 
    Spousal Immunity
    Confidential Marital
Physician-Patient (state not federal)
Psychotherapist-Patient
Self-Incrimination 
Clergy-Penitent 
Accountant-Client
Professional Journalist (no federal)
Government

Question 20

Public Policy Exclusions

Answer 20

Subsequent Remedial Measures
Compromise Offers/Negotiations
Payment of Medical Expenses
Plea Negotiations
Liability Insurance
Sexual Conduct

Question 21

Hearsay

Answer 21

An out-of-court statement offered to prove the truth of the matter asserted

Question 22

Non-Hearsay

Answer 22

Witness Prior Statements
- Must be testifying and present at trial
Prior Inconsistent Statements
Prior Consistent Statements
Prior Statement of Identification

Opposing Party Statements

• Own Words
• Adoptive Admissions
• Vicarious Admissions
• Co-Conspirators

Question 23

Common Non-Hearsay Uses

Answer 23

Verbal Acts/Legally Operative Facts
- Offered to prove the statement was made

Effect on the Listener

State of Mind

Question 24

Hearsay Exceptions: Declarant Unavailable

Answer 24

Former testimony if opposing party had opportunity/similar motive to cross them then

Dying Declaration (for cause of OWN death)

Statement Against Interest

Statement of Personal/Family History

Statement Against Party that Caused Unavailability

Question 25

Hearsay Exceptions: Declarant Availability Immaterial

Answer 25

1. Present Sense Impression 2. Excited Utterance 3. Statement of Mental, Emotional, or Physical Condition 4. Statement Made for Medical Diagnosis/Treatment 5. Recorded Recollection 6. Business Records 7. Public Records 8. Learned Treatises 9. Judgment of Previous Conviction - Final Judgment - Punishable by death or > 1 year imprisonment - Prove any fact essential to sustain judgment 10. Don't forget the residual exception 1. Supported by sufficient guarantees of trustworthiness 2. More probative than any other evidence the proponent can get through reasonable efforts