MBE Tip of the Day: Evidence
Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on evidence.
You will see 25 scored evidence MBE questions on the Multistate Bar Exam. In this post, we will review an evidence question together. 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 “MBE tip of the day” 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.
MBE Tip of the Day: Evidence
MBE Tip of the Day Instructions:
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, analysis, and 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 the MBE Question...
Evidence MBE Question
A defendant is prosecuted for battery after being involved in a fight at a sporting event. The defendant claims that the victim started the fight and that the defendant was acting in self-defense. At trial, the defendant called a witness that testified that the victim had a reputation for being belligerent and occasionally violent.
The prosecution wishes to respond by calling its own witness that will testify that the defendant is known for his own hot temper and is feared in the community for getting violent over the smallest things.
Is the prosecution’s action be proper?
(A) Yes, because when a victim’s character is attacked, the prosecution can rebut with evidence of the defendant’s same character trait.
(B) Yes, because when a defendant claims self-defense, it automatically places his or her character for violence in issue.
(C) No, because the defendant never opened the door by placing his character for violence in issue.
(D) No, because the prosecutor is limited to introducing evidence regarding the victim’s character that contradicts the defendant’s evidence.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Show the Answer to the MBE Question...
Answer to the Evidence MBE Question
Legal Issue: Admissibility of character evidence
Legal Rule and Analysis: In general, character evidence is not admissible to prove that a defendant acted in accordance with that character at a particular time. However, character evidence is admissible in certain situations. Beyond the general rules for criminal cases (in which the defendant typically has to open the door before character evidence is admissible by the prosecution), there are special rules for certain types of cases and when the character of the victim is involved. When a defendant is claiming self-defense, the defendant may introduce reputation or opinion evidence regarding the victim’s character for violence in an attempt to demonstrate that the victim was the initial aggressor. In response, the prosecution can either introduce reputation or opinion evidence of the victim’s character for peacefulness, or introduce reputation or opinion evidence of the defendant’s character for violence.
In this case, the defendant is claiming self-defense and arguing that the victim was the initial aggressor. Thus, the defendant was entitled to introduce evidence of the victim’s reputation for violence. In response, the prosecution could either introduce evidence of the victim’s character for peacefulness, or introduce evidence of the defendant’s character for violence (in the form of reputation or opinion evidence). The prosecutor is seeking to call a character witness to testify that the defendant has a reputation for being violent.
Conclusion: The prosecution’s actions are proper as when a defendant attacks the character of the victim, the prosecution is permitted under the rules to attack the same character trait in the defendant.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
The answer choice (A) is therefore correct. (B) is incorrect because just claiming self-defense alone does not automatically put the defendant’s character for violence in issue. The defendant must attack the victim’s character first. (C) is incorrect because this is one of those special cases where the defendant is attacking the victim’s character in order to prove self-defense. When the defendant attacks the victim’s character, it allows the prosecution to attack the defendant’s character trait on that same issue. (D) is incorrect because the prosecution is not limited to just rehabilitating the victim’s character.
MBE Tip: Be on the lookout for situations that are specifically singled out in the Rules! These are scenarios that the Examiners love to present you with in order to test how well you understand not only the general legal principles, but also what situations are deemed exceptions. Memorize the rules and their exceptions thoroughly, and then read the facts carefully so that you identify exactly what kind of situation you are in!
Show Summary of the Two Key Takeaway Points for the Day
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: When the defendant attacks the character of a victim (say in a self-defense case), the prosecution can either rehabilitate the victim’s character or attack the defendant’s character on that same trait.
MBE Tip: Be on the lookout for situations that are specifically singled out in the Rules!
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.
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