Multistate Bar Examination (MBE) Evidence Syllabus

Evidence syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Evidence in Multistate Bar Examination (MBE), not a summary of it.

1. 1

   Relevance and Its Limits

   4 topics

   • Logical and Legal Relevance
     • Probative value vs. unfair prejudice (Rule 403)
     • Conditional relevance
   • Character Evidence
     • Propensity prohibition and exceptions
     • Methods of proving character
     • Other acts evidence under Rule 404(b)
     • Habit and routine practice
   • Public Policy Exclusions
     • Subsequent remedial measures
     • Compromise offers and settlement negotiations
     • Liability insurance and medical expense payments
     • Pleas and plea discussions
   • Specialized Relevance in Sexual Misconduct Cases
     • Rape shield rule
     • Evidence of similar crimes in sexual assault cases
2. 2

   Witnesses, Examination, and Impeachment

   4 topics

   • Competency and Personal Knowledge
     • Oath and competency requirements
     • Dead Man's statutes
   • Examination of Witnesses
     • Leading questions and scope of cross
     • Refreshing recollection
     • Exclusion of witnesses
   • Impeachment
     • Prior inconsistent statements
     • Bias, interest, and motive
     • Conviction of crime under Rule 609
     • Prior bad acts and character for truthfulness
     • Contradiction and sensory defects
   • Rehabilitation and Prior Consistent Statements
     • Rebutting impeachment
     • Prior consistent statements as nonhearsay
3. 3

   Hearsay and Its Exceptions

   5 topics

   • Definition of Hearsay
     • Statement, declarant, and truth of the matter asserted
     • Nonhearsay uses of out-of-court statements
   • Statements Defined as Nonhearsay
     • Prior statements of testifying witnesses
     • Opposing party statements (admissions)
     • Vicarious and adoptive admissions
     • Coconspirator statements
   • Exceptions Not Requiring Unavailability
     • Present sense impression and excited utterance
     • Then-existing mental, emotional, or physical condition
     • Statements for medical diagnosis or treatment
     • Recorded recollection and business records
     • Public records and absence of records
   • Exceptions Requiring Unavailability
     • Former testimony
     • Dying declarations
     • Statements against interest
     • Forfeiture by wrongdoing
   • Confrontation Clause and Hearsay
     • Testimonial vs. nontestimonial statements
     • Crawford and its application
4. 4

   Privileges and Exclusionary Rules

   3 topics

   • Attorney-Client and Work Product
     • Scope and waiver of attorney-client privilege
     • Work product protection
   • Spousal Privileges
     • Spousal testimonial privilege
     • Confidential marital communications
   • Other Recognized Privileges
     • Physician-patient and psychotherapist-patient
     • Privilege against self-incrimination in evidence
5. 5

   Opinions, Experts, and Authentication

   4 topics

   • Lay and Expert Opinion
     • Lay opinion limits
     • Qualification and reliability of experts (Daubert)
     • Bases of expert testimony and ultimate issue
   • Authentication and Identification
     • Methods of authenticating evidence
     • Self-authenticating documents
   • Best Evidence Rule
     • Original document requirement
     • Duplicates and admissible secondary evidence
   • Judicial Notice and Presumptions
     • Adjudicative facts
     • Burdens and presumptions in civil and criminal cases

Evidence flashcards for Multistate Bar Examination (MBE)

22 of 52 cards from the Evidence deck — real questions with worked answers.

1. Under FRE 401, what is the test for whether evidence is logically relevant?

   Evidence is relevant if it has ANY tendency to make a fact of consequence more or less probable than it would be without the evidence (probative + material). The bar is very low ('any tendency').

2. Under FRE 403, when may a judge exclude relevant evidence (legal relevance)?

   When its probative value is SUBSTANTIALLY OUTWEIGHED by danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. The presumption favors admission.

3. What is the general rule on character evidence to prove conduct (propensity) in a case under FRE 404(a)?

   Character evidence is generally NOT admissible to prove that a person acted in conformity with that character on a particular occasion. (Subject to exceptions in criminal cases and for impeachment.)

4. In a criminal case, how may a defendant 'open the door' to character evidence, and how may the prosecution respond?

   The accused may offer evidence of a pertinent good character trait (via reputation or opinion). Once the defendant opens the door, the prosecution may rebut with the same trait. The prosecution generally cannot initiate character evidence about the defendant.

5. Under FRE 405, what methods of proving character are allowed, and when are specific instances of conduct permitted?

   On direct, character is proven by reputation or opinion only. Specific instances are allowed (1) on cross-examination of a character witness, and (2) when character is an essential element of a claim/defense (e.g., defamation, negligent entrustment, entrapment).

6. What are the FRE 404(b) permissible (non-propensity) uses of other crimes/wrongs/acts (the MIMIC purposes)?

   Motive, Intent, absence of Mistake/accident, Identity, Common plan or scheme (also opportunity, preparation, knowledge). The act must be proven by sufficient evidence a jury could find it occurred, and is subject to 403 balancing; prosecution must give notice in criminal cases.

7. Under FRE 407, is evidence of subsequent remedial measures admissible, and for what purposes may it be admitted?

   Not admissible to prove negligence, culpable conduct, a product/design defect, or a need for warning. It MAY be admitted for other purposes such as proving ownership/control or feasibility (if disputed), or for impeachment.

8. Under FRE 408, are settlement offers and negotiations admissible?

   No—offers (or acceptance) to compromise a disputed claim, and statements made during negotiations, are inadmissible to prove validity/amount of the claim or for impeachment by prior inconsistent statement/contradiction. There must be a disputed claim. Admissible for other purposes (e.g., proving bias, negating undue delay).

9. Under FRE 409, what is admissible regarding payment of medical expenses, and how does it differ from FRE 408?

   Offers/payment of medical/hospital expenses are inadmissible to prove liability. Unlike Rule 408, accompanying ADMISSIONS of fact are NOT protected (only the offer to pay is excluded), and no disputed claim is required.

10. Under FRE 411, is evidence of liability insurance admissible?

    Evidence that a person was or wasn't insured is inadmissible to prove negligence or wrongful conduct. It may be admitted for other purposes such as proving agency, ownership, control, or witness bias/prejudice.

11. Under FRE 410, what plea-related statements are inadmissible against the defendant?

    Withdrawn guilty pleas, nolo contendere (no-contest) pleas, statements made during plea proceedings, and statements during plea negotiations with the prosecutor that don't result in a guilty plea. (Defendant can waive this protection.)

12. Under the rape shield rule FRE 412, what evidence is generally barred and what are the exceptions in a criminal case?

    Evidence of a victim's other sexual behavior or sexual predisposition is generally inadmissible. Criminal exceptions: (1) specific instances to show another was the source of semen/injury; (2) specific instances with the accused to show consent; (3) where exclusion would violate the defendant's constitutional rights.

13. Under FRE 413-415, what propensity evidence is permitted in sexual assault and child molestation cases?

    In cases where the defendant is accused of sexual assault or child molestation (criminal or civil), evidence of the defendant's other acts of sexual assault/child molestation IS admissible and may be used to show propensity. (Still subject to Rule 403.)

14. Under FRE 601 and 602, what are the baseline requirements of competency and personal knowledge for a witness?

    Every person is presumed competent to testify (Rule 601). Under Rule 602, a witness may testify only to matters of which they have personal knowledge (perception), and under Rule 603 must give an oath or affirmation to testify truthfully.

15. Under FRE 611, what is the scope of cross-examination and the rule on leading questions?

    Cross-examination is generally limited to the subject matter of direct and credibility. Leading questions are generally NOT allowed on direct (except hostile witnesses, adverse parties, or to develop preliminary matters) but ARE allowed on cross-examination.

16. Under FRE 612, when may a witness use a writing to refresh recollection, and what rights does the opposing party have?

    A witness whose memory needs jogging may review any item to refresh present recollection; the writing itself is not evidence and isn't read to the jury by the proponent. The adverse party may inspect it, cross-examine on it, and introduce relevant portions into evidence.

17. What are the five general categories of impeachment of a witness's credibility?

    (1) Prior inconsistent statements; (2) Bias, interest, or motive to lie; (3) Defects in perception/memory (sensory capacity); (4) Reputation/opinion for untruthful character; (5) Prior convictions and bad acts probative of untruthfulness. Contradiction is also used.

18. Under FRE 609, how are prior convictions used to impeach a witness's character for truthfulness?

    Crimes of dishonesty/false statement (crimen falsi) are automatically admissible (no balancing). Other felonies: admissible subject to balancing—403 for ordinary witnesses, but for a criminal DEFENDANT-witness, probative value must OUTWEIGH prejudice. Convictions older than 10 years are generally inadmissible absent special circumstances.

19. Under FRE 608(b), how may specific instances of a witness's conduct be used to attack truthfulness?

    Specific bad acts probative of untruthfulness may be inquired into on CROSS-EXAMINATION (in the court's discretion) but may NOT be proven by extrinsic evidence—the cross-examiner is 'stuck with the answer.' No arrest/conviction needed; the act itself must bear on honesty.

20. What is the distinction between intrinsic and extrinsic evidence in impeachment, and which impeachment methods bar extrinsic evidence?

    Intrinsic = elicited on cross from the witness; extrinsic = other evidence (documents/other witnesses). Extrinsic evidence is BARRED for bad acts under 608(b) and for impeachment on collateral matters; it is ALLOWED for bias, prior convictions, prior inconsistent statements (with foundation/opportunity to explain), and sensory defects.

21. Under FRE 608(a), how is a witness's character for truthfulness rehabilitated after attack?

    After a witness's character for truthfulness has been attacked, the proponent may offer reputation or opinion evidence of the witness's GOOD character for truthfulness. Evidence of truthful character is admissible only after the witness's truthfulness has been attacked.

22. Under FRE 801(d)(1)(B), when is a prior consistent statement admissible, and is it hearsay?

    It is defined as NON-hearsay (substantive evidence) when the declarant testifies and is subject to cross, and the statement is offered (1) to rebut an express/implied charge of recent fabrication or improper motive (and was made before that motive arose), or (2) to rehabilitate credibility when attacked on another ground.

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