Evidence
The MBE tests evidence: relevance, hearsay, character evidence, impeachment, privileges, and expert testimony. Focus on hearsay exceptions and non-hearsay uses.
Relevance and character
- Relevant evidence tends to make fact more or less probable. Unfair prejudice may exclude.
- Character evidence: not admissible to prove conduct, except in criminal cases defendant may offer good character; prosecution may rebut. Habit evidence admissible.
- Impeachment: prior inconsistent statements, bias, conviction (felony or crimen falsi), reputation for truthfulness.
Hearsay
- Hearsay: out-of-court statement offered for truth. Non-hearsay: effect on listener, impeachment, verbal acts.
- Exceptions: present sense impression, excited utterance, then-existing condition, medical treatment, recorded recollection, business records, public records, ancient documents.
- Confrontation Clause: testimonial hearsay requires declarant unavailable and prior opportunity to cross-examine.
Worked example
A plaintiff sues for injuries from a car accident. A bystander tells the jury, 'The defendant ran the red light!' The defendant objects as hearsay. The statement is an excited utterance because the bystander spoke immediately after the crash while still under stress. It is admissible. If the bystander had said it a week later, it would not qualify. If offered to show the bystander's state of mind, it would be non-hearsay.
Traps
- Hearsay vs non-hearsay: statements offered to show effect on listener are not hearsay.
- Excited utterance requires startling event and stress; present sense impression requires contemporaneous statement.
- Business records require regular practice and lack of trustworthiness.
- Confrontation Clause applies to testimonial statements (e.g., police interrogations).