NextGen Bar Exam 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 NextGen Bar Exam, not a summary of it.

1. 1

   Relevance and Its Limits

   4 topics

   • Logical and Legal Relevance
     • Probative value versus unfair prejudice
   • Character Evidence
     • Propensity prohibition and exceptions
     • Permissible non-propensity uses
     • Methods of proving character
   • Habit and Routine Practice
   • Specialized Relevance Rules
     • Subsequent remedial measures and settlement offers
     • Liability insurance and pleas
2. 2

   Witnesses, Impeachment, and Privileges

   4 topics

   • Competency and Personal Knowledge
   • Impeachment Methods
     • Prior inconsistent statements and bias
     • Conviction of a crime and prior bad acts
   • Refreshing Recollection and Recorded Recollection
   • Privileges
     • Attorney-client privilege
     • Spousal privileges
     • Physician-patient and psychotherapist privileges
3. 3

   Hearsay

   5 topics

   • Definition of Hearsay
     • Out-of-court statements offered for their truth
     • Non-hearsay purposes
   • Statements That Are Not Hearsay by Rule
     • Prior statements by witnesses
     • Opposing party statements and admissions
   • Exceptions Regardless of Availability
     • Present sense impression and excited utterance
     • State of mind and medical diagnosis
     • Business and public records
   • Exceptions Requiring Unavailability
     • Former testimony and dying declarations
     • Statements against interest
   • Confrontation Clause and Hearsay
4. 4

   Expert Testimony, Authentication, and Writings

   4 topics

   • Lay and Expert Opinion
     • Qualification and reliable methodology under Daubert
     • Bases of expert opinion
   • Authentication of Evidence
   • The Best Evidence Rule
   • Judicial Notice and Presumptions

Evidence flashcards for NextGen Bar Exam

22 of 58 cards from the Evidence deck — real questions with worked answers.

1. What is the test for logical relevance under FRE 401?

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

2. Under FRE 403, when may logically relevant evidence still be excluded?

   When its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needlessly presenting cumulative evidence.

3. What is the general rule on admitting subsequent remedial measures, and what are the permitted purposes?

   Inadmissible to prove negligence, culpable conduct, a defect, or need for a warning. Admissible for other purposes such as proving ownership/control, feasibility (if disputed), or impeachment.

4. Are offers to settle a disputed civil claim admissible, and to prove what?

   No. Settlement offers, completed settlements, and statements made during compromise negotiations are inadmissible to prove validity/amount of a disputed claim or for impeachment by prior inconsistent statement. There must be a disputed claim (as to validity or amount).

5. What is the general prohibition on character evidence in FRE 404(a)?

   Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character (i.e., propensity).

6. How may a criminal defendant open the door to character evidence, and how may the prosecution respond?

   The defendant may offer evidence of a pertinent good character trait (via reputation or opinion). Once the defendant opens the door, the prosecution may rebut with reputation/opinion evidence and cross-examine with relevant specific-act inquiries (good-faith basis).

7. For what non-propensity purposes may specific prior acts (other crimes/wrongs) be admitted under FRE 404(b)?

   MIMIC purposes: Motive, Intent, absence of Mistake/accident, Identity, Common plan or scheme. Also opportunity, knowledge, preparation. Must not be offered to show propensity.

8. In which case types are a defendant's prior sexual assault or child molestation acts admissible to show propensity?

   Under FRE 413-415, in criminal or civil cases of sexual assault or child molestation, evidence of the defendant's prior commission of such offenses IS admissible and may be considered for any matter, including propensity.

9. What three methods can be used to prove character, and when is each available?

   (1) Reputation and (2) Opinion testimony — generally allowed when character is admissible; (3) Specific instances of conduct — allowed on cross-examination of a character witness, and when character is an essential element of a claim/charge/defense (e.g., defamation, negligent entrustment).

10. Define 'habit' and contrast it with character evidence under FRE 406.

    Habit is a person's regular, specific response to a particular repeated situation (semi-automatic, particularized conduct). Unlike character, habit evidence IS admissible to prove the person acted in accordance with it on a particular occasion, and needs no corroboration or eyewitness.

11. How is the admissibility of routine practice of an organization treated under FRE 406?

    Routine practice of an organization is admissible, just like personal habit, to prove the organization acted in accordance with that routine on a particular occasion.

12. Is evidence that a person was or was not insured against liability admissible to prove negligence?

    No. Liability insurance is inadmissible to prove negligence or wrongdoing. It may be admitted for other purposes such as proving agency, ownership, control, or witness bias/prejudice.

13. In a criminal sex-offense case, what does the rape shield rule (FRE 412) generally exclude and what are its exceptions?

    It excludes evidence of a victim's other sexual behavior or sexual predisposition. Criminal exceptions: (1) specific instances to show another source of semen/injury, (2) specific instances with the accused to show consent, (3) where exclusion would violate the defendant's constitutional rights.

14. Are pleas of guilty later withdrawn, nolo contendere pleas, and plea-discussion statements admissible against the defendant?

    No. Withdrawn guilty pleas, nolo contendere pleas, and statements made during plea negotiations with a prosecutor are generally inadmissible against the defendant.

15. What is the modern rule on witness competency under FRE 601?

    Every person is presumed competent to be a witness. There is no general disqualification for mental capacity, age, etc.; such matters go to credibility/weight (in diversity cases, state competency law applies to elements/defenses governed by state law).

16. What is the personal knowledge requirement of FRE 602?

    A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter (does not apply to expert opinion testimony under 703).

17. What must a witness do before testifying under FRE 603, and what is the Dead Man's Statute?

    A witness must give an oath or affirmation to testify truthfully. A Dead Man's Statute (state law only; no federal equivalent) bars an interested party from testifying about a personal transaction/communication with a deceased person when the testimony is against the decedent's estate.

18. What are the categories of impeachment by prior conviction under FRE 609?

    (1) Crimes of dishonesty/false statement (crimen falsi): automatically admissible, no balancing, regardless of felony/misdemeanor. (2) Other felonies: admissible subject to balancing — for a criminal defendant witness, admissible only if probative value outweighs prejudice; for other witnesses, standard FRE 403 balancing.

19. What is the 10-year limit rule for impeachment by conviction under 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 its prejudicial effect and the proponent gives reasonable written notice.

20. How may a witness be impeached with a prior inconsistent statement, and what foundation is required?

    A prior inconsistent statement can be used to impeach (show the witness is unreliable). Extrinsic evidence requires that the witness be given an opportunity to explain or deny and the opposing party a chance to examine (timing flexible). If made under oath at a prior proceeding, it is also substantive (non-hearsay under 801(d)(1)(A)).

21. What is impeachment by bias, and may extrinsic evidence be used?

    Bias impeachment shows the witness has a motive to lie (interest, relationship, hostility, payment). It is a non-collateral matter, so extrinsic evidence IS allowed (typically after the witness is asked about it).

22. What is the collateral matter rule in impeachment by contradiction?

    A cross-examiner may not introduce extrinsic evidence to contradict a witness on a collateral matter (one relevant only to credibility, not to the merits). The examiner is 'stuck with the answer' on collateral points.

See more Evidence flashcards →

Planning Evidence for NextGen Bar Exam

Evidence (NextGen Bar Exam) FAQ