Evidence on the Multistate Essay Exam: Highly Tested Topics and Tips

Evidence on the Multistate Essay Exam: Highly Tested Topics and Tips

Evidence is regularly tested on the MEE. Here, we give you tips for approaching Evidence on the MEE and we reveal some of the highly tested issues in Evidence questions.

Evidence on the Multistate Essay Exam

1. First, be aware of how Evidence is tested

Evidence is tested, on average, about once a year. It is generally tested on its own and not combined with another subject. However, it has been tested with Criminal Procedure in recent years (hearsay issues have been combined with Miranda issues).

Evidence is somewhat predictable in terms of what is tested. However, Evidence is a difficult subject to learn so, even if it is predictable, it is not always easy to master MEE questions that test Evidence. Here, we give you some tips for writing answers to MEE questions and how to approach Evidence generally.

2. Be aware of the highly tested Evidence issues

The examiners tend to test several of the same issues in Evidence MEE questions. You can maximize your score by being aware of these highly tested issues. (We have a nice summary of these in our MEE One-Sheets if you want to see all of them and have them all in one place.)

Some of the highly tested Evidence Multistate Essay Exam issues include:

Hearsay

Hearsay is, by far, the most highly tested MEE issue in Evidence questions. If you see hearsay tested on the MEE, remember to introduce it properly before analyzing exceptions. This way, you will connect the dots for the grader. Start by defining hearsay at the outset: Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Then, if you conclude that the statement is hearsay, discuss exceptions. A few of the examiners’ favorite hearsay exceptions to test are the following:

• Excited utterance: An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused.

• Present sense impression: A present sense impression is a statement describing or explaining an event or condition made while or immediately after the declarant perceived it.

• Statement for purpose of medical treatment or diagnosis: these statements must be made for and be reasonably pertinent to a medical diagnosis or treatment and describe medical history, past or present symptoms or sensations, their inception, or their general cause.

• Business records: A record of acts, events, conditions, opinions, or diagnoses is admissible if it is made at or near the time of the event recorded by a person with knowledge of the event. Further, the making of the record must occur in the course of a regularly conducted business activity, and it must be the regular practice of the business to make such a record.

We recommend you make a list of (1) hearsay exclusions (nonhearsay), (2) hearsay exceptions that require the declarant be unavailable, and (3) hearsay exceptions where the declarant can be available or unavailable. Then, state each of the rules’ elements and memorize the elements. It is helpful to do this so you can keep the hearsay exclusions and exceptions straight and apply them properly when they are tested. Remember: If the statement is not hearsay, you do not need a hearsay exclusion!

Impeachment

Impeachment is another topic that is tested frequently on the MEE. We recommend you memorize the seven ways to impeach a witness. Also, remember why impeachment evidence is being admitted. It is being admitted to show that the jury should not believe the witness.

• Prior inconsistent statement: Any prior inconsistent statement can be admitted to show that the jury should not believe the witness because the witness said something inconsistent in the past. (Note: extrinsic evidence is available in certain circumstances.)

• Bias: Evidence of bias can be used to show that the jury should not believe the witness because they are biased (e.g., if a witness is testifying in favor of their mother!).

• Conviction of a crime: If a witness was convicted of a crime that meets certain requirements, the crime could be admitted to show that the jury should not believe the witness because the witness does not take the law seriously.

• Prior bad acts: These must relate to truthfulness. Essentially, if the witness did something, like cheat on the bar exam, (even if there was no “conviction”) it can be used to show that the jury should not believe the witness.

• Reputation or opinion for untruthfulness: If the witness has a reputation for being untruthful or if, in someone’s opinion, the witness is untruthful, this can be used to show that the jury should not believe the witness.

• Sensory deficiencies: if the witness is testifying about what they saw, for example, and the witness cannot see, this can be used to impeach the witness.

• Contradiction: If the witness made a mistake in their testimony, or lied, the witness may be contradicted. This may be used to show that the jury should not believe the witness.

In addition to knowing these seven ways to impeach a witness, you want to learn the specific rules for each category of impeachment—including when extrinsic evidence can be offered and when the witness must be confronted on the stand. Always keep in mind why evidence is being offered as you learn the rules.

• Sixth Amendment Confrontation Clause: When approaching an MEE where a witness is unavailable in a criminal case, remember to discuss the Sixth Amendment Confrontation Clause, which provides the defendant the right to confront witnesses who testify against him.

Other Evidence issues on the MEE

Other Evidence issues tested are character evidence, relevancy, policy exclusions, and witness testimony, among others. It is important to know Evidence well as you will need to have a solid understanding of Evidence for both the MEE and the MBE!

3. Make a visual map of why evidence is being offered

Often, we see students get confused and misapply rules because they apply a character evidence rule when impeachment is being tested. Or they apply a hearsay rule when a statement is not being offered for its truth.

If you struggle with this, remember to ask, “Why is the evidence being offered?” Once you have the answer to that question, you can apply the appropriate Evidence rules.

If evidence is being offered:

• To prove a statement was said, there is no hearsay issue. (Thus, you should consider nonhearsay purposes for offering a statement—e.g., effect on reader or listener.)
• To prove a statement is true, there is a hearsay issue.
• To show the jury that they should not believe a witness, there is an impeachment issue.
• To show a witness’s good or bad character, there is a character evidence issue.
• To show some other purpose (e.g., motive, intent, lack of mistake, identity, common scheme), there is a MIMIC issue.

4. Learn the basic definitions to introduce each set of rules

Many of the concepts in Evidence should be defined or introduced before you discuss them in an essay question. For example:

• Hearsay: hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

• Relevancy: Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.

• Impeachment: generally, any party may impeach a witness.
• Character evidence: character evidence generally is inadmissible to prove that a person acted in accordance with their character at the time the event occurred.

These are just some examples of how you may want to set up certain topics. Practicing past MEEs is a great way to see how the examiners prefer specific topics to be introduced.

5. Practice!

Practice is critical if you want to master Evidence on the MEE. As an added bonus, you may also see your MBE score improve if you practice writing answers to Evidence essays.

Here, we provide you with some links to free Evidence MEE questions and NCBE point sheets. (If you would like to purchase a book of Evidence MEE questions and NCBE point sheets, check out our MEE books here. You can also see some additional exams on the NCBE website for free here.)

• February 2023 Evidence MEE: this MEE covers admissibility of a statement made during a subsequently withdrawn guilty plea; former testimony of an unavailable witness; rule 401 relevancy; Rule 404 MIMIC (absence of mistake); 403 balancing test; and impeachment (prior acts of dishonesty)
• July 2022 Evidence MEE: this MEE covers expert witness testimony, character evidence (and MIMIC—motive), and relevance.
• February 2016 Evidence MEE: this MEE covers hearsay, the Sixth Amendment Confrontation Clause, and character evidence.
• July 2014 Evidence MEE: this MEE covers impeachment.
• July 2013 Evidence MEE: this MEE covers hearsay, hearsay exceptions, and the Sixth Amendment Confrontation Clause.
• February 2013 Evidence MEE: this MEE covers hearsay, hearsay exceptions, and relevancy.

Go to the next topic, Family Law.

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