Evidence
Evidence
The NextGen bar exam tests relevance, hearsay, character evidence, impeachment, privileges, and expert testimony. The key skill is identifying the purpose for which a statement is offered-truth, effect on the listener, or another nonhearsay use.
Core rules
- Relevance: evidence must tend to make a fact more or less probable; Rule 403 excludes if probative value is substantially outweighed by unfair prejudice or confusion.
- Hearsay: an out-of-court statement offered for its truth. Nonhearsay uses include effect on the listener and state of mind.
- Hearsay exemptions and exceptions: prior statements, admissions, present sense impression, excited utterance, business records, public records, and residual exception.
- Character evidence: propensity evidence is generally barred in civil cases and limited in criminal cases; habit evidence is different.
- Impeachment: prior inconsistent statements, bias, conviction, and reputation for truthfulness.
Worked example
A pedestrian says, 'The car ran the red light,' while pointing at the intersection immediately after a crash. Offered to prove the car ran the red light, the statement is hearsay but likely admissible as an excited utterance or present sense impression. If offered to show the pedestrian was conscious and able to speak, it is nonhearsay. If offered to show the driver had notice of a dangerous intersection, it is not hearsay because it is not offered for its truth.
Traps
Do not call every out-of-court statement hearsay; identify the purpose. Prior consistent statements are not automatically admissible. Character evidence is not the same as habit. Confrontation issues arise when testimonial hearsay is offered against a criminal defendant.