MBE Tip of the Day: Evidence

Answer to the Evidence MBE Question

Common Mistake: Students do not ask themselves what the question is testing. And many students mix up when a case is civil or criminal.

Subject:  Evidence

Legal Issue:First ask: What is the question asking? Why does she want to offer the evidence? Does she want to offer an out of court statement to show it is true? (No so it is not a hearsay issue!). Does she want to offer evidence to show the other person is lying? (No, so it is not an impeachment issue!) Does she want to offer evidence to show habit? (No, she is not discussing a “regular response to a specific set of circumstances.) Does she want to offer evidence to show her good character? Yes! So picture the “character” portion of your outline.

Legal Rule and Analysis:

Character evidence may be permissibly admitted into evidence in three ways:

First, to prove a witness’s bad character for truthfulness only to impeach the witness. (This is an impeachment category. This is not applicable because the woman is not trying to impeach herself.

Second, in a civil case, character can only be used when it is an essential element of the case. This comes up in three scenarios: (1) negligent entrustment or hiring, (2) defamation, (3) child custody. That is it. There are many reasons for this. Some scholars think allowing character evidence in a civil case would distract from the main issue of a case and permit the trier of fact to reward the good man and punish the bad, despite what the evidence says. Other scholars say it would substantially increase the amount of mental examinations if character evidence was expanded into areas of psychiatric evaluation and testing.  It would also significantly extend the length of trial. So, remember character evidence is only allowed in very limited circumstances in a civil case.

Third, in a criminal case, if character evidence is used it has to be offered by the defendant using reputation or opinion. The prosecution can then rebut with reputation, opinion, or impeaching the defendant’s character witness with specific acts.  So, in a criminal case, the defendant must “open the door.” The Federal Rules of Evidence allow the defendant to “open the door” in criminal cases if he or she so chooses, because the defendant has so much at stake. Indeed, he has his life and liberty at stake (unlike a civil case where only money is at stake).

Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:  (C) is the correct answer. The character evidence is not being used for impeachment so it does not fall into the first category. It is not a criminal case so it does not fall into the third category. This is a civil case and the character evidence does not fall into one of the three scenarios above (negligent entrustment or hiring, defamation, child custody) so it cannot be used.  (A) is not correct because this is not a criminal case. (B) is not correct because it is not habit evidence. (Habit evidence is a regular response to a particular set of circumstances – i.e. “Mary takes the stairs two at a time”.)  Here, she is trying to describe her driving habits generally. (D) is incorrect because it would otherwise be considered relevant evidence that is not overly prejudicial. However, character evidence is excluded from civil cases.

MBE Tip: For Evidence, always make sure you know what the question is asking and what “category of rules” you should be thinking about.

Second, if you find yourself getting confused between when the question is discussing a civil case or a criminal case on the bar exam, here are some things to remember.

• Remember the state or a prosecutor charges a defendant for a crime in a criminal case. All of those words point to the fact pattern containing a criminal case.
• In a civil case, a plaintiff sues a defendant for money damages. (Thus, we know it is a civil case above, because it is the neighbor suing the woman, not the state charging the woman with a crime.)