MBE Strategy Series: Evidence MBE Tip of the Day
MBE Strategies Blog Post Series: Welcome to our MBE tips and tricks blog post series — this post focuses on Evidence MBE tips.
You will see 25 scored Evidence MBE questions on the Multistate Bar Exam.
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 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.
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.
Show MBE Question
Evidence MBE Question
In a civil battery case where the plaintiff was suing the defendant after the defendant allegedly tripped her while she was walking down the stairs, the plaintiff calls a witness to testify on her behalf. The witness corroborates the plaintiff’s story.
Then, on cross-examination of the witness, counsel for the defendant asks, “Isn’t it true that you cheated on your CPA exam last year by attempting to look at your notes during the test?” The plaintiff’s counsel objects to the question.
How should the court rule on the objection?
(A) It should be sustained because character cannot be proved by specific instances of conduct.
(B) It should be sustained because the question is irrelevant to the civil battery case.
(C) It should be overruled because the question regards the credibility of the witness.
(D) It should be overruled because it is permissible character evidence.
Subject:
Legal Issue:
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Show Answer to MBE Question
Answer to the Evidence MBE Question
Subject: Evidence
Legal Issue: How should the court rule on the objection to the evidence offered?
Legal Rule and Analysis: First ask why the evidence is being offered. Here, it is a prior bad act of untruthfulness. It is being offered to make the witness’s testimony less credible—in other words, to show that if the witness really did cheat on her CPA exam, she must not be that credible of a person and the jury really shouldn’t believe her. This is a permissible method of impeachment.
(Note that if the witness said “No, that is not true” the defendant’s lawyer would have to accept the answer as true and could not offer the test into evidence.)
Conclusion: (C) is correct.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. (A) is incorrect because the evidence is not being offered to prove character. Rather, it is being offered for impeachment purposes. (D) is incorrect for the same reason that (A) is incorrect. (Further, character evidence is generally not permitted in a civil case so you could cross this one out by process of elimination.) (B) is incorrect because the witness’s answer to the question is relevant to the credibility of the witness, which will have a bearing on whether the trier of fact finds that a civil battery did or did not take place.
MBE Tip: When you answer evidence questions, always ask why evidence is being offered. Some students struggle with evidence because they do not know which “category” of their outline to think about! Here are a few tips to keep in mind:
- If evidence is being offered to show a statement was said (but is not necessarily true) it is not hearsay.
- If evidence is offered to show a statement is true, then it poses a potential hearsay issue and the statement must fall within a hearsay exception or exclusion to be admitted. So, apply hearsay rules.
- If evidence is offered to show that a witness is lying or that a jury should not believe them, then it is an impeachment issue.
- If evidence is offered to show a witness’s good or bad character, then character is an issue. Determine whether it is a civil or criminal case then apply the appropriate rules.
- If evidence (usually a prior bad act of a defendant) is offered for some other purpose, then generally MIMIC is the issue.
- If evidence looks admissible, still check to see if there is a privilege or policy exclusion that will keep the otherwise relevant and admissible evidence out!
Show Summary of Two Key Takeaway Points
Key Takeaways and MBE tips for the day:
Takeaway for the Law: A prior bad act that bears on the truthfulness of a witness may be offered to impeach that witness.
MBE Tip: When you answer evidence questions, always ask why evidence is being offered. Some students struggle with evidence because they do not know which “category” of their outline to think about! Here are a few tips to keep in mind:
- If evidence is being offered to show a statement was said (but is not necessarily true) it is not hearsay.
- If evidence is offered to show a statement is true, then it poses a potential hearsay issue and the statement must fall within a hearsay exception or exclusion to be admitted. So, apply hearsay rules.
- If evidence is offered to show that a witness is lying or that a jury should not believe them, then it is an impeachment issue.
- If evidence is offered to show a witness’s good or bad character, then character is an issue. Determine whether it is a civil or criminal case then apply the appropriate rules.
- If evidence (usually a prior bad act of a defendant) is offered for some other purpose, then generally MIMIC is the issue.
- If evidence looks admissible, still check to see if there is a privilege or policy exclusion that will keep the otherwise relevant and admissible evidence out!
Want to see Past MBE Tip of the Day Posts?
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
Looking for additional MBE help?
If you are looking for MBE help, read our 10 expert MBE tips here. Check out our step-by-step guide to improving your MBE score, please review this post for an overview of tips. If you would like to have the next MBE tip emailed to you when we come out with another one, please fill out the form below.
MBE Tip of the Day
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