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Tips for Evidence on the Multistate Essay Exam

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Tips for Evidence on the Multistate Essay Exam

Today in our MEE tips series we address Evidence.  When thinking about Evidence on the Multistate Essay Exam, you should consider two questions. First, how is it tested? Second, how often is it tested?  In the last 10 years (20 administrations), we’ve seen Evidence on the Multistate Essay Exam in 8 full essays.  Additionally we have also seen Criminal Law combined with Evidence on the Multistate Essay Exam.  Therefore, while it does not appear all that often, the NCBE gets creative with how they test Evidence.  Even if you think a question is testing another subject, beware for how Evidence issues could be included as well!

Tips for Evidence on the Multistate Essay Exam

Standard disclaimer: make sure you are preparing for all of the subjects!  Statistics regarding the frequency we see Evidence on the Multistate Essay Exam can help you determine how much to study. However, they should not dissuade you from studying for a subject at all! Spend the most time on the subjects that are the most likely to come up.  But do not ignore any subject!

So, let’s get into the most commonly tested topic in Evidence on the Multistate Essay Exam!

Hearsay (!!!)

Hearsay is far and away the most frequently tested issue in Evidence on the Multistate Essay Exam.  When you see a question involving hearsay, your first step should always be to define it. Hearsay is a statement, other than one made by the declarant while testifying at trial or a hearing, offered in evidence to prove the truth of the matter asserted.  If a statement is hearsay, it is not admissible unless it falls within one of the exceptions or exclusions.

The most common exceptions that are tested are excited utterance, present sense impression, statement for purpose of medical treatment or diagnosis, business records, past recollection recorded, state of mind and hearsay exclusions.

Relevancy

When you see Evidence on the Multistate Essay Exam and wonder if something is admissible, think about if it’s relevant.  Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.  All relevant evidence is admissible unless a statute/rule says otherwise or its probative value is outweighed by some danger.  These dangers might include unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Impeachment

Any party can impeach a witness, and there are seven ways of doing so. They are prior inconsistent statements, bias and interest, conviction of a crime, bad acts, reputation or opinion for untruthfulness, sensory deficiencies, and contradiction.  This is another favorite topic in Evidence on the Multistate Essay Exam. So, make sure you learn the intricacies involved in each.  Extrinsic evidence is not always allowed to prove these things. There are many restrictions involved, particularly regarding what types of convictions can be used.

Character evidence

Generally, character evidence is not admissible to prove that someone acted in accordance with their character at the time the event occurred.  In civil cases, character evidence is only permitted when character is an essential element in the case.  In criminal cases, character evidence is inadmissible in the prosecutor’s case in chief.  However, the defendant may introduce evidence of a pertinent character trait to prove that he acted in conformity with his character at the time in question.  He can do this through reputation or opinion.  This then “opens the door” for the prosecution to rebut this testimony by using its own reputation and opinion evidence, or through cross-examining the defendant’s witness by asking about specific acts.  Character evidence issues appeared 3 times in the last 7 years in Evidence on the Multistate Essay Exam.

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