Evidence MBE Tip of the Day
Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on Evidence.
You will see 25 scored evidence MBE questions on the Multistate Bar Exam. In this post, we will review an evidence question together. Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each “MBE tip of the day” post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
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MBE Tip of the Day Instructions
Do your best to answer this evidence MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? What is the rule and analysis? What is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
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Evidence MBE Question
A plaintiff sued a defendant after they got into a car accident in which the plaintiff suffered physical injuries. At the scene of the accident, a police officer had conducted interviews. About 15 minutes after the accident, the police officer interviewed a witness who said she saw the defendant run a red light. The officer documented this statement in his police report.
At trial, the plaintiff called the officer to testify as to the witness’s statement. The officer honestly could not remember the specific witness and if the witness said the defendant drove through a red light or a yellow light. The plaintiff’s attorney showed the officer a copy of his police report, which caused the officer to remember the witness. The officer then prepared to testify as to the witness’s statement. The defendant objected.
Should the judge rule that the officer’s testimony regarding the witness’s statement is admissible?
(A) Yes as a past recollection recorded.
(B) Yes, because the statement was documented in a business record.
(C) No, because the statement was not made immediately following the accident.
(D) No, unless the witness is available for the defendant to confront.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Show the Answer to the MBE Question...
Answer to the Evidence MBE Question
Legal Issue: Hearsay
Legal Rule and Analysis:
Hearsay is an out of court statement offered to prove the truth of the matter asserted. Hearsay is inadmissible unless it meets the requirements of a hearsay exception or exclusion. One such exception is the present sense impression exception. This applies when a declarant is explaining or describing an event while it is happening or immediately thereafter.
Another potentially relevant exception is the business records exception, which allows for a records of a business made in the regular course of business made at or about the time of the event which contains contents that consist of information observed by employees of the business or statements that fall within an independent hearsay exception. Finally, the past recollection recorded exception allows the witness to read a document into evidence when the witness has faulty recollection and the writing does not job his memory, the witness had personal knowledge of the facts at a former time, the writing was either made or adopted by the witness while the event was fresh in the witness’s memory, and the witness can vouch for the accuracy of the writing when made or adopted.
In this case, the officer is seeking to testify as to what the witness said following the accident. This is hearsay. The witness made the statement out of court and it is being offered to prove the truth of the matter asserted. Therefore, it needs to meet the requirements of a hearsay exception or exclusion before the officer can testify to it. This situation does not present the opportunity to use the past recollection recorded or business records exception. The past recollection recorded exception allows one to read a writing into evidence. It would not apply to hearsay within hearsay. The police report itself is hearsay, as are the statements of the witness within it. The past recollection recorded exception would not be used to allow the officer to testify to hearsay statements that are in the police report. That is not its purpose.
Similarly, the business records exception could get the police report admitted, but not the hearsay statements within. Those must fall within an independent hearsay exception. Further, we aren’t seeking to admit the report at all (which is the purpose of the business records exception – admitting the records). Therefore, the only exception that even comes close is the present sense impression exception. However, the court would find that the statement was not made within the proper time period after the event for it to be trustworthy. Fifteen minutes is plenty of time for a witness to theoretically fabricate a statement or to have misremembered.
Conclusion: Because the statement was made too long after the event occurred, the officer will not be allowed to testify to the witness’s statement.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
The answer choice (C) is therefore correct. (A) is incorrect because, as explained above, the past recollection recorded exception allows for a writing containing facts of which the author has personal knowledge to be read into evidence. It does not allow for a witness to testify to a hearsay statement that is contained in a writing that does not meet the requirements of an independent exception. (B) is incorrect because, as explained above, the business records exception allows for records of a business to be admitted into evidence. It does not allow for the author to testify to hearsay statements within the report that don’t meet the requirements of an independent hearsay exception. (D) is incorrect because the confrontation clause does not apply to civil cases and the witness’s availability is immaterial.
Make sure to look for a hearsay exception or exclusion that fits the particular statement and not the overall situation. The story the fact pattern presented crafted a situation in which both the past recollection recorded and business records exceptions could seem relevant. However, the kinds of evidence they allow in are nothing like the specific statement the officer wants to testify to. Your focus should be on the specific statement that we want to admit and then finding an exception that allows that statement in. Don’t let other facts distract and lead you off track.
Show Summary of the Two Key Takeaway Points for the Day
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: The present sense impression hearsay exception requires that the statement be made during or immediately after the event being described. Otherwise, it will not be trustworthy.
MBE Tip: Make sure to look for a hearsay exception or exclusion that fits the particular statement and not the overall situation.
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