Evidence: Relevance, Hearsay, Impeachment, and Privileges
What the MEE tests
Evidence tests whether proof is relevant, whether it is hearsay, whether an exception applies, and whether a witness can be impeached. Expect character evidence, expert testimony, authentication, and privileges.
Core rules
- Relevance: evidence is relevant if it tends 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 waste.
- Character evidence: propensity evidence is generally inadmissible in civil cases and in criminal cases unless the defendant opens the door. Habit evidence is admissible. Other acts may show motive, intent, identity, absence of mistake, or plan.
- Hearsay: an out-of-court statement offered for its truth. Nonhearsay includes statements offered for effect on the listener and prior inconsistent statements under oath. Exemptions include opposing-party statements; exceptions include present sense impression, excited utterance, business records, and public records.
- Impeachment: prior inconsistent statements, bias, sensory capacity, conviction of a crime, and reputation for truthfulness. Prior consistent statements rehabilitate after a charge of fabrication.
- Privileges: attorney-client, spousal, clergy, and psychotherapist; waiver by disclosure.
Worked example
A plaintiff sues a store for negligence after a fall. A witness testifies that another shopper said, "There is water on the floor." The statement is offered to show the store had notice. It is not hearsay because it is offered to show its effect on the listener, not the truth of the water's presence. If offered to prove water was actually there, it would be hearsay and might qualify as an excited utterance or present sense impression.
Traps
Hearsay within hearsay requires an exception for each layer. A prior inconsistent statement is not substantive evidence unless under oath at a prior proceeding. Character evidence is not admissible to prove conduct in a civil case. Business records require a foundation of regular practice and contemporaneous creation.