Topic 9: Evidence on the MBE: Key Topics

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Evidence on the MBE: Key Topics

Here, we cover Evidence on the MBE!  Out of the 175 scored multiple-choice questions, you can expect to see 25 Evidence questions.  The National Conference of Bar Examiners (NCBE) has broken down the subject into five categories of topics, with some being emphasized more than others.  Relevancy, hearsay, and presentation of evidence are the critical topics to understand, as that’s where you can pick up the most points!

Evidence on the MBE: Breakdown by Topic

Below is a chart of how Evidence is tested on the MBE. You can see that the first topic (relevancy) makes up 33.3% of the Evidence MBE questions. Hearsay and presentation of evidence make up another 50% together. These are the most important topics to focus on when you study Evidence. 

Evidence on the MBE: NCBE Subject Matter Outline 

This Evidence subject matter outline is promulgated by the NCBE (and re-styled by JD Advising). You can see the primary Evidence categories that are tested as well as the topics tested within those categories. The NCBE subject matter outline is available for download here if you prefer to see it in PDF form. Any of the issues listed in the NCBE’s outline are ripe for testing in Evidence on the MBE.

Evidence on the MBE: Key Topics

The NCBE has broken evidence down into five categories (in order of most to least tested): relevancy and reasons for excluding relevant evidence; hearsay and circumstances of its admissibility; presentation of evidence; privileges and other policy exclusions; and writings, recordings, and photographs.  We’ll take each of these in turn.

Relevancy and reasons for excluding relevant evidence

You will see about 8–9 questions on relevancy and reasons for excluding relevant evidence on the MBE. This has changed, as there used to only be 2–3 questions on this topic!  Remember that any piece of evidence has to be relevant in order to even be considered for admission. Evidence is considered relevant if it has a tendency to make a fact of consequence more or less probable than it would have been without the evidence.  If the evidence is irrelevant, then it is not admissible!  However, just because evidence is relevant does not make it automatically admissible.  Relevant evidence can still be excluded if there is another statute or rule that mandates its exclusion or if it does not pass the 403 balancing test (which states that the probative value of the evidence cannot be substantially outweighed by a danger of unfair prejudice).

Another significant concept tested in this section is character evidence.  This topic tends to trip up many examinees so it is important to learn the nuances here!  Character evidence is admissible in three situations:

• First, to demonstrate a witness’s bad character for truthfulness with the goal of impeaching the witness.
• Second, in civil cases, character evidence is admissible when character is an essential element of the case.
• Third, in criminal cases, character evidence can be admissible to prove the defendant acted in accordance with his character, but only if the defendant has already “opened the door” by introducing his own relevant character evidence. Remember that the prosecution cannot open the door and bring up the defendant’s character first. 

Evidence of prior bad acts can be admissible for other purposes, so pay attention to what the offering party is trying to accomplish.  If a party is trying to establish (MIMIC) motive, intent, lack of mistake, identity, or common scheme or plan, evidence of prior bad acts will be admissible, even if the bad act tends to also shed light on character. For example, if a defendant was caught with marijuana and his defense was that he thought it was oregano (i.e., he was mistaken about the nature of the substance), the prosecution could admit the fact that he was caught smoking marijuana in the past to show a lack of mistake. Importantly, the prior bad act would not be admissible to show character—just the lack of mistake. 

Hearsay and circumstances of its admissibility

You will see about 6–7 questions on hearsay and the circumstances of its admissibility in evidence on the MBE.  Hearsay is an out of court statement offered to prove the truth of the matter asserted.  Hearsay is inadmissible unless an exception or exclusion applies.  It is critical that you memorize all of the possible hearsay exceptions, exclusions, and their nuances!  Further, make sure you are able to classify something as “nonhearsay” (that is a hearsay exclusion, such as a party admission) or as falling within a “hearsay exception” (that is an exception to hearsay, such as a statement against interest). In a hearsay question, each answer choice might offer a different exception or exclusion as a reason for the statement’s admission or rejection.  Thus, you will have to be able to identify which exception or exclusion applies!

We often see examinees mixing up the statement against interest exception and the party admission exclusion.  A statement against interest is a statement made by a declarant who is unavailable at trial and who said something against their interest.  The declarant must have known that the statement was against their interest when they made the statement.  This statement is still hearsay, but it will be admitted as an exception. Most students say everything is a “statement against interest” but remember, this is a tricky exception to test because the declarant has to be unavailable. Thus, it is generally not the right answer on the MBE. 

A party admission is any statement said by a party and offered against that party at trial.  It does not have to be against that party’s interest.  It is important to remember that these statements are excluded from the definition of hearsay.  Thus, the appropriate answer choice might say something like “Admissible as it is nonhearsay.”  Be sure to recognize that a party admission would fall under this kind of answer choice, as would any statement that fell into any of the other exclusions! If you see a plaintiff or defendant say something and that statement is used against them in court, the statement is “nonhearsay.” Don’t even think about hearsay exceptions (such as a statement against interest), because it is not hearsay to begin with! 

Presentation of evidence

You will see about 6–7 questions on presentation of evidence.  There are many different concepts that fall into this area, but the largest and most easily tested are the introduction of evidence and impeachment. In order for a lay witness to testify, they must have personal knowledge as to what they are testifying about.  Every person is presumed competent to testify unless the rules provide otherwise.  Some questions might try to trick you by presenting you with a potential witness who might be biased.  Remember that bias does not prevent a witness from taking the stand!  The opposing party can try to impeach the witness through this bias but cannot prevent them from testifying for this reason.

Any party may attempt to impeach any witness, and there are seven ways to do so.  Make sure to memorize all of the details regarding each one, as only specific methods are permissible for each.  The most nuanced of these impeachment methods is impeachment by introducing evidence of a prior conviction.  You need to pay close attention to the nature of the crime as well as how much time has passed and whether the witness is the defendant.  All of the details presented in the question will be very important in answering these questions.

Privileges and other policy exclusions

You will see about two questions on privileges and other policy exclusions in evidence on the MBE. The most commonly tested privileges are attorney-client and work product, spousal immunity and marital communications, the doctor-patient privilege, the clergy-penitent privilege, and the Fifth Amendment privilege against self-incrimination.  Pay close attention to who holds the privilege, as this determines who can prevent the other from testifying at trial!  Other situations to watch out for where evidence could be excluded are insurance and liability situations, the existence of subsequent remedial measures, offers to settle and offers to pay medical expenses, and plea bargaining.

Writings, recordings, and photographs

You will see about two questions on writings, recordings, and photographs in evidence on the MBE.  We see a lot of examinees get too bogged down with the best-evidence rule.  This rule states that an original writing or recording is needed to prove a statement if the statement is of legal significance (i.e., a will or contract) or if the witness is testifying to an event she learned solely from reading a writing or watching a video and has no independent knowledge of that event.  This answer choice often is the wrong answer on the MBE.  These two situations where the original is needed actually are rather limited.  More often than not, the witness will have some sort of independent personal knowledge of the event and so the original would not be necessary.  Don’t make this rule harder than it needs to be!

Go to the next topic, Topic 10: Real Property on the MBE: Key Topics.

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