MBE Strategies Tip #8—Evidence

Answer to Evidence MBE Question:

Common mistake: Students forget the “easy answer” −  party admission! Some students fall into “MBE Traps” with the Best Evidence Rule or other Evidentiary Rules.

Subject:  Evidence

Legal Issue: Can the defendant’s statement be offered into evidence or does the defendant have a valid objection? Specifically, is the statement hearsay not within any exception or is there some other evidentiary rule that prevents the statement from coming in? Does the fact that it was recorded prevent the plaintiff from testifying regarding what he heard?

Legal Rule and Analysis: A statement is not hearsay if it is a statement made by the party-opponent (“party admission.”) Because this statement was made by a party-opponent, it is not precluded from being admitted into evidence based on hearsay grounds.

Hearsay:

Students tend to make the statement by party opponent hearsay exclusion much harder than it is. The general rule is: If a party says it, it can be admitted against them! It is actually considered “nonhearsay” rather than a hearsay exception. (Note: It does not matter if the party whom the statement is being used against denies making it or says they were joking or that the other party took it out of context – because they are a party to the case so they can simply deny or explain the statement at trial.)

If you are getting mixed up with party admission and statement against interest, remember that to admit a statement as a statement against interest, the declarant has to be unavailable. For a party admission, availability does not matter. (Further, for a party admission, the statement does not have to be against their interest at the time they make it.) So focus on whether a party says something, if so, and if it is being used against them (then we know the answer is “statement by party opponent”). Don’t make things harder on yourself by looking at hearsay exceptions like statement against interest!

Best Evidence:

As for the recording: The best evidence rule can keep a statement from being used if the original of the statement is not being offered and the statement either (1) has legal significance (e.g., is in a will, contract, etc.) or (2) 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.

In this case, there is no record of legal significance, so it doesn’t fall into category (1). Further, the plaintiff had personal knowledge of the statement and it is not a legal document. So the Best Evidence Rule will not preclude its admission under category (2).

Conclusion:In this case, the defendant made the statement. Thus, it can come in as an admission by a party-opponent.  Further, he best evidence rule will not preclude its admission.

Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:  (B) is the best answer because it recognizes this exclusion.  (A) is incorrect because in order for one to have a statement against interest admitted, the witness needs to be unavailable. In this case, the defendant is available. (Further, there is no reason to look for a hearsay exception when the statement, as a party-opponent, is not even hearsay to begin with.) (C) is incorrect for the reasons mentioned above. (D) is incorrect because the statement is an admission by party opponent.

MBE Tip: While it is best to focus on the most highly-tested areas of law, do not ignore the difficult areas of law that are not usually the right answer (the best evidence rule in Evidence, the privileges and immunities clause of the 14^th Amendment, the necessary and proper “power”, ex post facto laws, etc.) – especially if you tend to “second guess” yourself. This is especially the case if it doesn’t take you too long to understand these nuances. You can confidently cross off incorrect answers and you won’t fall into classic MBE traps.