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MS Bar: Evidence

MS Bar · Work through your exam, one topic at a time.

All guide sections

Evidence

Evidence questions are largely hearsay questions in disguise, supported by relevance, character, impeachment, and confrontation. For every statement ask: who said it, to whom, for what purpose, and is the declarant available?

Relevance and character

  • Relevance is a low bar: any tendency to make a fact more or less probable. Rule 403 excludes when probative value is substantially outweighed by unfair prejudice or confusion.
  • Character evidence may not prove conduct, except the accused's character in criminal cases, the victim's character, and impeachment. MIMIC evidence is admissible for a non-propensity purpose.

Hearsay

  • Hearsay is an out-of-court statement offered for its truth. Not hearsay: verbal acts, effect on the listener, and 801(d)(1)(A) prior statements under oath.
  • 803 exceptions: present sense impression, excited utterance, then-existing condition, business records (regular practice, contemporaneous, trustworthy), public records.
  • 804 requires unavailability; it covers former testimony, dying declarations in homicide and civil cases, and statements against interest.
  • Crawford: testimonial statements require unavailability plus a prior opportunity to cross-examine; a 911 call reporting an ongoing emergency is nontestimonial (Davis v. Washington).
  • Impeachment: prior inconsistent statements, bias, convictions, reputation for truthfulness, contradiction.

Worked example

A 911 caller, sobbing, says, "My husband just hit me with a chair." Offered against the husband, the statement is hearsay but admissible as an excited utterance under 803(2). Because it described events as they were happening to secure police response, it is nontestimonial under Davis, so the Confrontation Clause does not bar it even if the wife never testifies.

Traps

Treating a statement offered to show its effect as hearsay; admitting business records without a foundation witness or certification; forgetting that statements against interest need corroboration when they inculpate the accused; impeaching with a remote conviction without a 403 weighing.