Multistate Essay Examination (MEE) Evidence Syllabus

What is the scope of cross-examination under the FRE?

Cross-examination is limited to the subject matter of direct examination and matters affecting the witness's credibility. The court has discretion to allow inquiry into additional matters as if on direct.

List the methods of impeaching a witness's credibility.

(1) Prior inconsistent statements, (2) bias/interest/motive, (3) sensory or mental defects, (4) bad character for truthfulness via reputation/opinion, (5) prior convictions, (6) specific instances of untruthful conduct, and (7) contradiction.

When may a prior inconsistent statement be used as substantive evidence vs. only for impeachment?

Generally usable only to impeach. It is also substantive (non-hearsay) under FRE 801(d)(1)(A) only if the prior inconsistent statement was made under oath at a prior proceeding/deposition.

Under FRE 609, when may a witness be impeached with a crime involving dishonesty or false statement?

Crimes of dishonesty/false statement (crimen falsi) MUST be admitted; the court has NO discretion to exclude, and no balancing applies (subject only to the 10-year limit).

Under FRE 609, what is the standard for impeaching with a felony NOT involving dishonesty?

For a criminal defendant-witness: admissible only if probative value OUTWEIGHS prejudicial effect (reverse-403, favors exclusion). For all other witnesses: admissible unless probative value is substantially outweighed by prejudice (ordinary 403).

What is the 10-year limit rule for impeachment by conviction (FRE 609(b))?

If more than 10 years have passed since conviction or release from confinement (whichever is later), the conviction is admissible only if its probative value substantially outweighs prejudice AND the proponent gives reasonable written notice.

Under FRE 608(b), how may specific instances of a witness's untruthful conduct be used?

They may be inquired into ONLY on cross-examination (in the court's discretion) if probative of truthfulness; they may NOT be proven by extrinsic evidence. The cross-examiner is 'stuck with the answer.'

What is the distinction between intrinsic and extrinsic evidence for impeachment of a collateral matter?

A witness may not be impeached with extrinsic evidence on a collateral matter (one with no significance apart from contradicting the witness). Non-collateral matters (bias, prior convictions, prior inconsistent statements on material facts) may be proven extrinsically (often after a chance to explain).

What is required to admit lay opinion testimony (FRE 701)?

It must be (1) rationally based on the witness's perception, (2) helpful to understanding testimony or determining a fact, and (3) not based on scientific/technical/specialized knowledge.

State the four-part test for admitting expert testimony (FRE 702 / Daubert).

(1) The witness is qualified, (2) testimony is based on sufficient facts/data, (3) it is the product of reliable principles and methods, and (4) the expert reliably applied those methods to the facts. The judge is the gatekeeper of reliability/relevance (Daubert).

What bases may an expert rely on, and when may otherwise inadmissible facts be disclosed (FRE 703)?

An expert may rely on facts personally observed, made known at trial, or reasonably relied upon by experts in the field. Inadmissible underlying facts may be disclosed to the jury only if their probative value in helping evaluate the opinion substantially outweighs prejudice.

May an expert give an opinion on the ultimate issue (FRE 704)?

Generally yes. Exception: in a criminal case, an expert may NOT state an opinion on whether the defendant did or did not have the mental state constituting an element of the crime or defense.

Define hearsay under FRE 801(c).

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

Name common non-hearsay purposes (offered NOT for the truth).

Verbal acts/legally operative words (contract, defamation), effect on the listener (notice, fear), state of mind of the declarant (circumstantial), and impeachment by prior inconsistent statement.

What prior statements by a testifying witness are defined as NON-hearsay under FRE 801(d)(1)?

If the declarant testifies and is subject to cross-examination: (A) prior inconsistent statements made under oath at a proceeding, (B) prior consistent statements offered to rebut a charge of recent fabrication/improper motive or to rehabilitate, and (C) prior statements of identification.

What statements are defined as non-hearsay opposing-party (party-admission) statements under FRE 801(d)(2)?

Statements offered against a party that are: the party's own statement; one adopted by the party; one by an authorized spokesperson; one by an agent/employee on a matter within scope during employment; or a coconspirator's statement during and in furtherance of the conspiracy.

What must be shown to admit a coconspirator statement, and may the statement itself prove the conspiracy?

It must be made during the course of and in furtherance of the conspiracy. The statement may be considered but cannot, by itself, establish the existence of the conspiracy or the defendant's participation (Bourjaily); independent evidence is needed.

State the elements of the present sense impression exception (FRE 803(1)).

A statement describing or explaining an event/condition, made WHILE or immediately after the declarant perceived it. Availability of the declarant is immaterial.

State the elements of the excited utterance exception (FRE 803(2)).

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. The stress (not strict contemporaneity) is the key; availability is immaterial.

What is the then-existing mental/emotional/physical condition exception (FRE 803(3))?

A statement of the declarant's then-existing state of mind (intent, plan, motive, emotion) or physical condition. It does NOT cover a statement of memory or belief to prove the fact remembered/believed (except a will).

What are the elements of the statement-for-medical-diagnosis-or-treatment exception (FRE 803(4))?

A statement made for, and reasonably pertinent to, medical diagnosis or treatment, describing medical history, symptoms, or their general cause. Statements of FAULT or identity of a wrongdoer are generally not covered (except identity of abuser in domestic/child abuse).

State the requirements of the business records exception (FRE 803(6)).

A record of an act/event/condition (1) made at or near the time, (2) by/from someone with knowledge, (3) kept in the course of a regularly conducted business activity, (4) where making the record was a regular practice, shown by a custodian/qualified witness or certification, unless the source/method indicates a lack of trustworthiness.

What is the public records exception (FRE 803(8)), and what is its key limit in criminal cases?

Records of public offices setting out the office's activities, matters observed under a legal duty, or factual findings from an investigation. In a CRIMINAL case, matters observed by law-enforcement personnel and police investigative reports are NOT admissible against the defendant.

List the exceptions that require the declarant to be UNAVAILABLE (FRE 804).

Former testimony, dying declaration (statement under belief of imminent death), statement against interest, statement of personal/family history, and statement offered against a party who wrongfully caused the declarant's unavailability (forfeiture).

When does FRE 804 treat a declarant as 'unavailable'?

When the declarant: is exempted by privilege, refuses to testify despite a court order, testifies to lack of memory, is dead or too ill, or is absent and the proponent cannot procure attendance/testimony by reasonable means.

State the elements of the former testimony exception (FRE 804(b)(1)).

Testimony given at a prior trial/hearing/deposition, now offered against a party who (in a civil case, a predecessor in interest) had an opportunity and similar motive to develop it by direct, cross, or redirect examination.

State the elements of the dying declaration exception (FRE 804(b)(2)).

In a homicide prosecution OR any civil case: a statement made by a now-unavailable declarant, while believing death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

State the requirements of the statement against interest exception (FRE 804(b)(3)).

A statement that, when made, was so contrary to the declarant's pecuniary, proprietary, or penal interest that a reasonable person would not have made it unless true. If offered to exculpate the accused in a criminal case, corroborating circumstances indicating trustworthiness are required.

What is the Confrontation Clause rule under Crawford v. Washington?

In a criminal case, TESTIMONIAL hearsay by a non-testifying declarant is inadmissible against the accused unless the declarant is unavailable AND the defendant had a prior opportunity to cross-examine, regardless of whether a hearsay exception applies.

How do Davis/Hammon distinguish testimonial from non-testimonial statements to police?

Non-testimonial: made to enable police to meet an ONGOING EMERGENCY (admissible). Testimonial: primary purpose is to establish/prove past events potentially relevant to later prosecution (e.g., after the emergency has ended).

What is the attorney-client privilege, and who holds it?

Confidential communications between a client and attorney made to facilitate legal services are privileged. The CLIENT holds the privilege. Exceptions include the crime-fraud exception and disputes between attorney and client.

Compare the two spousal privileges.

Spousal IMMUNITY (testimonial): a spouse cannot be compelled to testify against the other in a CRIMINAL case; held by the witness-spouse; requires a valid marriage at time of trial. Marital COMMUNICATIONS privilege: confidential communications during marriage are protected in civil/criminal; held by both spouses; survives divorce.

State the standard for authentication of evidence (FRE 901).

The proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. This is a low bar (conditional relevance); the jury ultimately decides genuineness. Methods include witness testimony, distinctive characteristics, and chain of custody.

What items are self-authenticating under FRE 902 (requiring no extrinsic evidence)?

Examples: public documents under seal, certified copies of public/business records, official publications, newspapers/periodicals, trade inscriptions/labels, acknowledged (notarized) documents, and commercial paper.

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

To prove the CONTENT of a writing, recording, or photograph, the original (or a duplicate) is required. It applies only when the contents are at issue or a witness is testifying about/relying on the contents — not when the fact exists independent of the writing.

What are the main exceptions/excuses to producing the original under the Best Evidence Rule (FRE 1004)?

The original is not required if: all originals are lost/destroyed (not in bad faith), the original is unobtainable by judicial process, the opponent who controls it failed to produce it after notice, or the writing is not closely related to a controlling issue (collateral).

When may judicial notice of an ADJUDICATIVE fact be taken (FRE 201)?

For a fact not subject to reasonable dispute because it is (1) generally known within the court's territorial jurisdiction, or (2) accurately and readily determinable from sources whose accuracy cannot reasonably be questioned. May be taken at any stage, including on appeal.

What is the effect of judicial notice in civil vs. criminal cases?

In a CIVIL case, the jury must accept the noticed fact as conclusive. In a CRIMINAL case, the jury MAY but is not required to accept the noticed fact (to protect the right to a jury).

What is the effect of a rebuttable presumption in a civil case (the 'bursting bubble' / FRE 301)?

A presumption shifts the burden of PRODUCTION (not persuasion) to the opposing party. If that party produces evidence rebutting the presumed fact, the presumption disappears; if not, the fact is established. The burden of persuasion stays with the original party.