Evidence
What the exam tests
Evidence tests the Federal Rules: relevance, character evidence, impeachment, hearsay and exceptions, privileges, expert testimony, authentication, and the best-evidence rule.
Core rules
- Relevance. Evidence is relevant if it has any tendency to make a fact more or less probable and the fact is of consequence. Rule 403 excludes if probative value is substantially outweighed by unfair prejudice, confusion, or delay.
- Character evidence. In civil cases, character is generally inadmissible to prove conduct. In criminal cases, the prosecution cannot offer character to prove guilt; the accused may open the door. Evidence of other crimes is admissible for MIMIC purposes (motive, intent, identity, absence of mistake, common plan).
- Hearsay. An out-of-court statement offered for its truth. Nonhearsay includes verbal acts, effect on the listener, and prior statements under Rule 801(d). Exceptions include excited utterance, present sense impression, business records, public records, and statements against interest.
- Impeachment. Prior inconsistent statements, bias, conviction (felony or crime involving dishonesty), and reputation for truthfulness. Prior consistent statements may rehabilitate after a charge of fabrication.
- Experts and authentication. Rule 702 requires reliable specialized knowledge that helps the trier of fact. Rule 901 requires sufficient evidence to support a finding that the item is what it purports to be.
Worked example
A pedestrian says, “The car ran the red light,” while bleeding at the scene. The statement is hearsay if offered to prove the car ran the light, but it qualifies as an excited utterance because it relates to a startling event and was made while under the stress of excitement. It is admissible.
Traps
Do not forget hearsay within hearsay; each layer needs an exception. Do not offer character evidence as propensity in civil cases. Do not use a prior conviction to impeach without checking the Rule 609 limits. Do not confuse authentication with admissibility.