Chapter 11: How to Conquer Evidence on the California Bar Exam
Evidence on the California Bar Exam
Evidence is regularly tested on the essay portion of the California Bar Exam. Like other essay subjects, Evidence is somewhat predictable in terms of how it is tested.
Here, we tell you how to approach Evidence on the California Bar Exam, including some of the issues you should expect to see tested in Evidence essay questions.
Evidence on the California Bar Exam
1. First, know how Evidence is tested.
Evidence is regularly tested—about once a year on average. Unfortunately, the California Bar Exam loves to test California law for Evidence questions. This is the only MBE subject where California distinctions are routinely tested. Note that California law is not always tested—about half the time the California Evidence Code (CEC) is tested and about half the time the Federal Rules of Evidence (FRE) are tested.
Normally, a California essay question will specify whether you are to apply the FRE or the CEC. If an essay question does not ask which law to apply on the exam, discuss the FRE.
Evidence is generally tested on its own. However, it is sometimes combined with Professional Responsibility, Remedies, Civil Procedure, and Criminal Law and Procedure.
2. Be aware of the highly tested issues.
Like every subject, the State Bar of California tests certain issues over and over again on Evidence questions. (We have a nice summary of these in our California Bar Exam One-Sheets, which you can see an overview of at the link here!)
Some of the most highly tested Evidence topics tested on the essay portion of the California Bar Exam include:
- Relevancy: It is crucial that you start your introduction with an overview of logical versus legal relevance. Remember, if you see a criminal case where you are asked to apply California law, also mention Proposition 8.
- Hearsay: Unsurprisingly, hearsay is extremely highly tested. It is also very nuanced and there are plenty of California distinctions. Some of the common hearsay rules that appear on the California Bar Exam are:
- Effect on a person who heard or read the statement (nonhearsay)
- Admission by a party opponent (nonhearsay under the FRE and a hearsay exception under the CEC
- Statement against interest
- Present sense impression
- Contemporaneous statement (a CEC exception only)
- Excited utterance (called “spontaneous statement” under the CEC)
- Business records
- Authentication and the best evidence rule (called the “Secondary Evidence Rule” in California)
- Impeachment: Prior inconsistent statements have been the most frequently tested impeachment method but specific instances of misconduct that are probative of truthfulness have also been tested. For example, convictions were tested in July 2010.
- Witness testimony: A witness must have knowledge of the matter she testifies about. A lay witness’s opinion is admissible if it is rationally based on the witness’s perception; helpful to determining a fact; and not based on scientific, technical, or other specialized knowledge.
3. Be aware of the highly tested California distinctions.
We recommend looking at past essays or purchasing our California Bar Exam One-Sheets so you can see some of the highly tested Evidence California distinctions. Many bar review courses spend a lot of time discussing distinctions that are hardly ever tested on the California Bar Exam. There are so many California distinctions that it is not reasonable to commit them all to memory just for the bar exam. We recommend that you start by memorizing the California distinctions that are most likely to appear on the exam. Unsurprisingly, California distinctions in hearsay rules are among the most highly tested. Below are some of them:
Statement against interest
The statement against interest hearsay exception has a California distinction that is occasionally tested. Under the FRE, the elements for this exception are as follows:
- The declarant is unavailable;
- the statement is against the declarant’s pecuniary, proprietary, or penal interest;
- it was against the declarant’s interest when made; and
- the declarant knew it was against his interest when the statement was made.
Under the CEC, the statement is also admissible if it is against the declarant’s social interest because it risks making the declarant an object of hatred, ridicule, or social disgrace in the community. Thus, the exception is broader under the CEC compared to the FRE.
Present sense impression
Under the FRE, the present sense impression exception occurs when the declarant describes or explains an event while the event is occurring or immediately thereafter.
The CEC does not recognize this hearsay exception!
Instead, the California Bar Exam frequently tests the “contemporaneous statement” exception which is only recognized by the CEC (and not the FRE). The elements of this exception are that the declarant makes a statement to explain, qualify, or make understandable his own conduct and the statement was made while the declarant is engaged in that conduct. This exception is much narrower than the FRE present sense impression exception.
Exclusions vs. exceptions
An admission of a party opponent is “nonhearsay” under the FRE, but is a hearsay exception under the CEC.
Prior inconsistent statement
Under the CEC, any prior inconsistent statement can be offered for its truth—it need not be under oath like the FRE requires.
The best way to gain proficiency at Evidence essay questions is to practice writing answers to essay questions. This will help you become acquainted with how Evidence is routinely tested on the essay portion of the California Bar Exam (including California distinctions). And not only will it help you master the highly tested issues, it will help boost your MBE score as well!
Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Evidence essay questions:
- February 2021 Evidence essay: this essay applies the CEC and covers relevance, lay witness testimony, examination at trial, impeachment, policy exclusions, bias, character evidence, MIMIC, privileges, hearsay, hearsay exclusions, and hearsay exceptions (see essay question #1 on the exam).
- February 2020 Evidence essay: this essay applies the CEC and covers Proposition 8, relevance, hearsay, hearsay exclusions, hearsay exceptions, authentication, privileges, lay witness testimony, and impeachment (see essay question #4 on the exam).
- February 2019 Evidence essay (combined with Civil Procedure): this essay applies the FRE and covers relevance, policy exclusions, hearsay, hearsay exclusions, hearsay exceptions, expert witness testimony, and impeachment (see essay question #4 on the exam).
- February 2017 Evidence essay: this essay applies the FRE and covers relevance, hearsay, hearsay exclusions, hearsay exceptions, authentication, lay witness testimony, impeachment, and policy exclusions (see essay question #3 on the exam).
Good luck studying for the California Bar Exam!
Go to the next topic, Chapter 12: Professional Responsibility.
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