Evidence—Highly Tested MBE Topics, Charts, and a Checklist!

Always ask WHY is evidence being offered?

1. To Prove that a Statement Was Said (but Not Necessarily that It is True)

These are not used for the truth but could be used for another purpose—i.e., to prove that something was said.

Three nonhearsay exclusions (not used for the truth of the matter): (mnemonic = VEC)

• Verbal act: legally operative words (to prove a legal effect—e.g., defamation, contract formation)

• Effect on person who heard/read statement

• Circumstantial evidence of a speaker’s state of mind (e.g., to show he is mentally incompetent)

2. To Prove that a Statement Is True (for the Truth of the Matter Asserted)

These are all to prove that the statement said (whatever is in quotes) is actually true!

Two nonhearsay exclusions used to prove the truth of the matter: (mnemonic = PP)

• Prior statements of a trial witness—must be testifying at trial! Can be a prior statement of identification, an inconsistent statement (must be under oath), or a consistent statement made pre-motive.
• Opposing party’s statement (“party admission”)—any statement made by opposing party, adoptive admissions, agent/employee, or coconspirator can be used against that party.

 Hearsay exceptions: witness must be unavailable: (mnemonic = FFFDS)

• Forfeiture by wrongdoing (witness tampering)

• Former testimony (under oath)

• Family or personal history (birth, marriage, divorce)

• Dying declaration (believe death is impending; relates to cause or circumstances of death; criminal homicide or civil)

• Statement against interest (declarant must know it is against interest when made)

Hearsay exception: witness can be available or unavailable: (mnemonic = PETS RePUBLCO)

• Present sense impression (Key word = present! Said while something is happening or immediately after.

• Excited utterance (Key word = excited! Under stress of excitement.)

• Then-existing mental, emotional, or physical condition (how you feel mentally, physically, or intent)

• Statement made for medical diagnosis or treatment (Does not have to be to a doctor but must relate to treatment. Cannot be “I was driving negligently…”)

• Past Recollection recorded (you cannot remember something at trial, so you can read it to jury)

• Public records

• Business records (must be in ordinary course of business)

• Learned treatises (read into evidence while expert is on stand. Not offered as exhibit)
• Catchall (admissible statements that are not otherwise covered by a hearsay exception)
• Others: reputation regarding character, prior convictions for felony offenses, ancient documents, familial relations

3. To Show a Witness is Lying and the Jury Should Not Believe Them!

This must have to do with credibility! The whole point is to show they are not telling the truth! You cannot impeach someone who does not testify or whose statements are not offered into evidence.

Examples: seven ways to show someone is lying (mnemonic = Princess Bride Can’t Really Be Speaking Cordially)

• Prior inconsistent statement (must generally give a chance to explain unless they are a hearsay declarant, the other party, or have left the stand)

• Bias and interest

• Conviction of a crime (any crime of dishonesty, or a felony; subject to 10-year rule)

• Reputation or opinion for untruthfulness

• Bad acts—specific instances of conduct (Note: A party cannot use extrinsic evidence! Crime MUST relate to dishonesty.)

• Sensory deficiencies

• Contradictions

4. To Show a Witness’s Good or Bad Character

This must be for a relevant character trait—something that has to do with the case against them. They hardly ever allow this in a civil case. It is only allowed in a criminal case when defendant brings it up!

• Civil case: Generally, NOT admissible! The few exceptions where it is admitted is when it is an essential element of the case (negligent entrustment/hiring, defamation, child custody). Use ROS (reputation, opinion, specific acts).

• Criminal case: Defendant must open door to relevant character trait through RO (reputation or opinion). Prosecution can rebut with ROS (reputation, opinion, or specific acts).

5. For Some Other Purpose (Motive, Intent, Lack of Mistake, Identity, Common Scheme, etc.)

Not trying to prove anything about truthfulness, character, etc. Just trying to prove something in your current case (like defendant had the motive to kill, or the defendant knows what marijuana is even though he is saying he did not know!).

MIMIC

• Motive
• Intent
• Lack of mistake
• Identity
• Common scheme or plan

Habit and routine practice

Note on how to keep otherwise admissible evidence out!

These would otherwise come into evidence, but for privilege or policy reasons, the court will still refuse to admit them.

Privileges: CAMPS

• Clergy-penitent
• Attorney-client
• Marital communications and spousal
• Psychotherapist-patient
• Self-incrimination—Fifth Amendment privilege against self-incrimination

Policy exclusions: IPSOO

• Insurance (generally not admissible for liability, but can show agency, control, impeachment, or MIMIC)
• Plea bargaining
• Subsequent remedial measures
• Offers to settle (all facts and offers inadmissible—but there must be a claim and a dispute
• Offers to pay medical expenses (just the offer itself is inadmissible)

Go to the next topic, Real Property—Highly Tested MBE Topics, Charts, and a Checklist!

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