Multistate Bar Examination (MBE) Evidence Syllabus

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.

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.

What is the definition of hearsay under FRE 801(c)?

An out-of-court statement (oral, written, or assertive conduct by a declarant) offered in evidence to prove the truth of the matter asserted. If offered for any other purpose, it is not hearsay.

Name common non-hearsay purposes for which an out-of-court statement is offered (not for its truth).

Effect on the listener (notice/state of mind), verbal acts/legally operative words (contract terms, defamation), to show the declarant's state of mind circumstantially, and to impeach by prior inconsistent statement. Offered for these purposes, the statement is not hearsay.

Under FRE 801(d)(2), what five categories of statements are 'opposing party statements' (admissions) defined as non-hearsay?

(1) The party's own statement; (2) adoptive admission; (3) statement by an authorized spokesperson; (4) statement by an agent/employee on a matter within scope during employment; (5) co-conspirator statement made during and in furtherance of the conspiracy. These are non-hearsay; no personal knowledge or against-interest requirement.

Under FRE 801(d)(1)(A), when is a witness's prior inconsistent statement admissible as substantive (non-hearsay) evidence?

When the declarant testifies and is subject to cross, AND the prior inconsistent statement was made under penalty of perjury at a prior trial, hearing, or deposition. Otherwise a prior inconsistent statement is admissible only to impeach, not for its truth.

List the FRE 803 hearsay exceptions that apply regardless of the declarant's availability (key ones).

Present sense impression, excited utterance, then-existing mental/emotional/physical condition, statements for medical diagnosis/treatment, recorded recollection, business records, public records, and learned treatises. Availability of the declarant is immaterial.

Compare present sense impression and excited utterance under FRE 803(1) and 803(2).

Present sense impression: describes/explains an event made WHILE or immediately after perceiving it (no stress required). Excited utterance: relates to a startling event made while UNDER THE STRESS of excitement it caused (more time may pass if stress continues).

Under FRE 803(4), what statements for medical diagnosis or treatment are admissible, and what is the key limit?

Statements made for and reasonably pertinent to medical diagnosis/treatment, including symptoms, medical history, and the general cause. Statements of FAULT or identity of the wrongdoer are generally NOT admissible (exception: identity of abuser in domestic/child-abuse cases).

State the foundational requirements for the business records exception, FRE 803(6).

(1) Record of acts/events/conditions; (2) made by/from a person with knowledge; (3) kept in the course of a regularly conducted business activity; (4) making the record was a regular practice; (5) made at or near the time; (6) shown by custodian/qualified witness or certification—and the source/method must not indicate lack of trustworthiness.

Compare recorded recollection (FRE 803(5)) with present recollection refreshed (FRE 612).

Present recollection refreshed: writing jogs memory; witness testifies from refreshed memory; writing is not evidence. Recorded recollection: witness now can't fully recall; a record made when the matter was fresh and accurate is READ into evidence (but not admitted as an exhibit by the proponent).

Under FRE 804(a), what circumstances make a declarant 'unavailable'?

Privilege exempts testimony; refusal to testify despite court order; lack of memory of the subject; death or then-existing physical/mental illness; or absence from the hearing where the proponent can't procure attendance/testimony by reasonable means. Unavailability can't be caused by the proponent's wrongdoing.

List the FRE 804(b) hearsay exceptions requiring the declarant's unavailability.

(1) Former testimony; (2) dying declaration (statement under belief of imminent death); (3) statement against interest; (4) statement of personal/family history; (5) forfeiture by wrongdoing (statement offered against a party who caused the declarant's unavailability).

State the requirements for the former testimony exception, FRE 804(b)(1).

Declarant is unavailable; testimony was given under oath at a prior trial/hearing/deposition; and the party against whom it's now offered (or in civil cases a predecessor in interest) had an opportunity and similar motive to develop the testimony by direct/cross/redirect.

State the requirements for a dying declaration under FRE 804(b)(2).

Declarant is unavailable; made while believing death was imminent; the statement concerns the cause or circumstances of the impending death. Admissible only in homicide prosecutions and ANY civil case (declarant need not actually die).

Compare a statement against interest (FRE 804(b)(3)) with an opposing-party statement/admission.

Statement against interest: declarant must be UNAVAILABLE, can be by ANY person, must be against the declarant's pecuniary/proprietary/penal interest when made, and (if exculpatory in a criminal case) needs corroboration. Opposing-party admission: declarant need not be unavailable, must be a party, and need not be against interest when made.

Under the Confrontation Clause (Crawford v. Washington), when is admitting a hearsay statement against a criminal defendant barred?

When the statement is TESTIMONIAL, the declarant is unavailable at trial, and the defendant had no prior opportunity to cross-examine the declarant. Such admission violates the Sixth Amendment regardless of whether a hearsay exception applies.

Under Davis v. Washington, how is a statement to police classified as testimonial vs. non-testimonial?

Non-testimonial: made to enable police to meet an ONGOING EMERGENCY (primary purpose). Testimonial: made when there is no ongoing emergency and the primary purpose is to establish/prove past events potentially relevant to later prosecution. Only testimonial statements implicate the Confrontation Clause.

What are the elements of the attorney-client privilege?

A confidential communication (1) between an attorney (or staff) and client, (2) made to facilitate legal services, (3) intended to be confidential. Held by the client (survives death), it protects communications—not underlying facts—and bars disclosure unless waived.

What is the crime-fraud exception to the attorney-client privilege?

There is no privilege if the client sought or used the attorney's services to enable or aid in committing or planning a future crime or fraud. (Communications about past wrongdoing remain privileged.)

What is the work-product doctrine and how does it differ from attorney-client privilege?

Work product protects materials prepared in anticipation of litigation. Ordinary (fact) work product is discoverable on a showing of substantial need + undue hardship; OPINION work product (attorney's mental impressions, theories) gets near-absolute protection. Unlike the privilege, it covers documents/tangible things, not just confidential communications, and belongs to the attorney.

Compare the two spousal privileges: spousal immunity (testimonial) and confidential marital communications.

Spousal immunity: in CRIMINAL cases, a spouse can refuse to testify against the defendant-spouse about anything; applies only during marriage; held by witness-spouse (federal). Marital communications: in civil OR criminal cases, protects confidential communications made DURING marriage; survives divorce; held by both spouses.

What is the physician-patient privilege and how does it compare to the psychotherapist-patient privilege?

Physician-patient privilege protects confidential info acquired for treatment—it is a statutory state creation, NOT recognized at federal common law, and has many exceptions. The psychotherapist-patient privilege (Jaffee v. Redmond) IS recognized in federal court for confidential communications with psychotherapists/licensed social workers.

Under FRE 701, when is lay opinion testimony admissible?

Lay opinion is admissible when it is (1) rationally based on the witness's perception, (2) helpful to understanding the testimony or determining a fact, and (3) NOT based on scientific, technical, or other specialized knowledge (which would require an expert). E.g., speed, intoxication, emotion.

Under FRE 702 and Daubert, what are the requirements for admissible expert opinion testimony?

(1) The witness is qualified; (2) testimony helps the trier of fact; (3) based on sufficient facts/data; (4) product of reliable principles/methods; (5) reliably applied to the facts. Daubert factors for reliability: testability, peer review/publication, known error rate, and general acceptance.

Under FRE 703, what bases may an expert rely on, and when may otherwise-inadmissible underlying data be disclosed to the jury?

An expert may rely on facts the expert perceived, learned at trial, or was made aware of—if of a type reasonably relied on by experts in the field, the data need not be admissible. Inadmissible underlying facts may be disclosed to the jury only if their probative value in helping evaluate the opinion substantially outweighs prejudice.

Under FRE 901, what is the authentication requirement, and what are examples of self-authenticating evidence under FRE 902?

To authenticate, the proponent must produce evidence sufficient to support a finding that the item is what it claims to be (low bar). Self-authenticating items (no extrinsic evidence needed): public documents under seal, certified copies of public records, official publications, newspapers, trade inscriptions/labels, acknowledged (notarized) documents, and certified business records.

How may a voice and the authorship of a private writing be authenticated under FRE 901?

A voice may be identified by anyone familiar with it, whenever familiarity was acquired (even after the call). A writing's authorship can be shown by distinctive characteristics/contents (reply-letter doctrine), handwriting (lay familiarity not acquired for litigation, or expert/jury comparison), or circumstantial evidence.

State the Best Evidence (Original Document) Rule under FRE 1002 and when it applies.

To prove the CONTENT of a writing, recording, or photograph, the original (or a duplicate under 1003) must be produced. It applies only when (1) the writing is a legally operative/dispositive instrument, or (2) the witness is testifying based on the writing itself. It does NOT apply when a witness has independent personal knowledge of the facts.

Under FRE 1004, when is non-production of the original excused so secondary evidence (e.g., testimony or copies) is allowed?

Secondary evidence is allowed when: the originals are lost or destroyed (not in bad faith); the original can't be obtained by judicial process; the opponent who controls the original failed to produce it after notice; or the writing relates to a collateral (unimportant) matter.

Under FRE 201, what facts are subject to judicial notice and what is the effect in civil vs. criminal cases?

A court may take judicial notice of an adjudicative fact not subject to reasonable dispute because it is generally known in the jurisdiction or can be accurately determined from reliable sources. In CIVIL cases the jury MUST accept the fact as conclusive; in CRIMINAL cases the jury MAY but is not required to accept it.

Distinguish rebuttable presumptions from conclusive presumptions, and state the federal effect of a rebuttable presumption in civil cases.

A rebuttable presumption shifts the burden and can be overcome by contrary evidence; a conclusive (irrebuttable) presumption cannot be challenged and is really a rule of law. Under FRE 301, a rebuttable presumption shifts the burden of PRODUCTION to the opposing party but the burden of PERSUASION stays with the party who originally had it.