NextGen Bar Exam Evidence Syllabus

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).

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.

How may a witness's character for truthfulness be attacked and supported under FRE 608?

Character for truthfulness may be attacked by reputation/opinion evidence; it may be supported only after it has been attacked. Specific instances of conduct (not resulting in conviction) may be inquired into on cross-examination if probative of truthfulness, but extrinsic evidence of those acts is barred.

What is required to refresh a witness's recollection under FRE 612?

A witness whose memory fails may be shown anything (a writing or object) to jog memory. The item is NOT evidence and is not read into the record by the proponent; the witness testifies from refreshed memory. The adverse party may inspect it, cross-examine on it, and introduce relevant portions.

State the five foundational elements of the recorded recollection hearsay exception (FRE 803(5)).

(1) The witness once had personal knowledge; (2) the record was made or adopted by the witness; (3) when the matter was fresh in memory; (4) the record accurately reflects that knowledge; and (5) the witness now cannot recall well enough to testify fully. If admitted, it is read into evidence but received as an exhibit only if offered by an adverse party.

What are the elements of the attorney-client privilege?

A confidential communication between a client (or representative) and attorney (or representative), made for the purpose of obtaining or providing legal services, is protected from disclosure. Held by the client; survives the client's death; does not protect underlying facts or attendance of third parties who destroy confidentiality.

What is the crime-fraud exception to 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 what the client knew or should have known was a crime or fraud (future/ongoing wrongdoing, not past acts).

Who holds the spousal privileges and what does each cover?

(1) Spousal (testimonial) immunity: in CRIMINAL cases, the witness-spouse may refuse to testify against the defendant-spouse; held by the witness-spouse; requires a valid marriage at time of trial. (2) Confidential marital communications: protects confidential communications made during marriage; applies in civil and criminal cases; held by both spouses; survives divorce for statements made during the marriage.

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 in the statement.

Name three common non-hearsay purposes for which an out-of-court statement may be offered.

To show: (1) effect on the listener (notice, fear, motive); (2) a verbal act / legally operative words (contract, defamation, gift); (3) the declarant's state of mind circumstantially, or that the statement was made at all (not its truth). Also for impeachment as a prior inconsistent statement.

Which prior statements by a testifying witness are non-hearsay under FRE 801(d)(1)?

If the declarant testifies and is subject to cross-examination: (A) a prior inconsistent statement made under penalty of perjury at a prior proceeding; (B) a prior consistent statement offered to rebut a charge of recent fabrication/improper influence or to rehabilitate; (C) a prior statement of identification of a person.

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

A statement offered against an opposing party that: (A) was made by the party; (B) is one the party adopted/believed true; (C) was made by a person the party authorized to speak; (D) was made by the party's agent/employee on a matter within scope during employment; or (E) was made by a coconspirator during and in furtherance of the conspiracy.

What is required for the coconspirator non-hearsay exclusion to apply?

The statement must be made by a coconspirator (1) during the course of and (2) in furtherance of the conspiracy. The existence of the conspiracy and the defendant's participation are determined by the judge, who may consider the statement itself plus independent evidence.

List the requirements of the present sense impression exception (FRE 803(1)).

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. No startling event required; the key is near-contemporaneity (little time to fabricate).

What are 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 the event caused. Time gap can be longer than a present sense impression as long as the declarant remains under the stress.

What does the state-of-mind exception (FRE 803(3)) cover, and what is excluded?

A statement of the declarant's then-existing state of mind (intent, plan, motive, emotional/physical condition). It can prove future conduct (intent to do something). It does NOT include a statement of memory or belief to prove the fact remembered/believed (except about the terms of declarant's will).

What statements qualify under the medical diagnosis/treatment exception (FRE 803(4))?

Statements made for, and reasonably pertinent to, medical diagnosis or treatment, describing medical history, past or present symptoms, or their general cause. Statements of fault/identity are usually excluded (exception: identity of an abuser in domestic/child abuse cases).

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

(1) Record of acts/events/conditions made at or near the time; (2) by or from someone with knowledge; (3) kept in the course of a regularly conducted business activity; (4) making the record was a regular practice; (5) shown by a custodian/qualified witness or certification; and (6) the source/method do not indicate a lack of trustworthiness. Note: records prepared primarily for litigation may lack trustworthiness.

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

Records of a public office setting out its activities, observed matters under a legal duty (excluding police observations in criminal cases against the defendant), or factual findings from a legally authorized investigation (civil cases / against the government in criminal). Police reports/observations are not admissible against a criminal defendant.

What does it mean for a hearsay declarant to be 'unavailable' under FRE 804(a)?

The declarant is exempt by privilege; refuses to testify despite a court order; testifies to lack of memory; is dead or has a then-existing infirmity/illness; or is absent and the proponent cannot procure attendance/testimony by reasonable means. A party cannot create unavailability through wrongdoing.

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

Testimony given at a prior trial, hearing, or deposition is admissible if the declarant is now unavailable and the party against whom it is offered (or, in civil cases, a predecessor in interest) had an opportunity AND a similar motive to develop the testimony by direct, cross, or redirect examination.

What are the elements of a dying declaration (FRE 804(b)(2))?

Declarant is unavailable; the statement was made while believing death was imminent; and it concerns the cause or circumstances of what the declarant believed to be impending death. Admissible only in a homicide prosecution or any civil case (not other criminal cases). Declarant need not actually die.

What is a statement against interest (FRE 804(b)(3)) and its corroboration requirement?

A statement that, when made, was so contrary to the declarant's pecuniary, proprietary, or penal interest that a reasonable person would have made it only if true; requires the declarant to be unavailable. If it exposes the declarant to criminal liability and is offered to exculpate the accused, corroborating circumstances indicating trustworthiness are required.

What is the forfeiture-by-wrongdoing exception (FRE 804(b)(6))?

A statement offered against a party who wrongfully caused — or acquiesced in wrongfully causing — the declarant's unavailability, intending that result. The party forfeits both hearsay and Confrontation Clause objections.

Under the Confrontation Clause (Crawford), when is a hearsay statement inadmissible against a criminal defendant?

When the statement is (1) testimonial, (2) the declarant is unavailable, and (3) the defendant had no prior opportunity to cross-examine the declarant. Testimonial statements require confrontation regardless of whether a hearsay exception applies.

How is a statement to police classified as testimonial vs. nontestimonial (Davis v. Washington)?

Nontestimonial: 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 or prove past events potentially relevant to later criminal prosecution.

What are the requirements for lay opinion testimony under FRE 701?

A lay witness's opinion must be (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 is governed by 702).

State the FRE 702 / Daubert requirements for expert testimony.

(1) The expert is qualified by knowledge, skill, experience, training, or education; (2) the testimony will help the trier of fact; (3) it is based on sufficient facts/data; (4) it is the product of reliable principles and methods; and (5) the expert reliably applied those methods to the facts. Reliability factors: testability, peer review, error rate, general acceptance.

On what bases may an expert form an opinion under FRE 703, and when may inadmissible facts be disclosed to the jury?

An expert may rely on facts personally observed, facts admitted at trial, or facts reasonably relied upon by experts in the field (even if inadmissible). Inadmissible underlying facts may be disclosed to the jury only if their probative value in helping evaluate the opinion substantially outweighs their prejudicial effect.

What is the rule on expert opinion regarding a criminal defendant's mental state (FRE 704(b))?

In a criminal case, an expert may not state an opinion about whether the defendant did or did not have the mental state or condition that is an element of the crime or defense; that ultimate issue is reserved for the trier of fact. (Otherwise, opinions on ultimate issues are generally permitted under 704(a).)

What is the general standard for authenticating evidence under 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, comparison, or chain of custody.

What categories of evidence are self-authenticating under FRE 902 (no extrinsic proof needed)?

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

How may a voice or telephone conversation be authenticated under FRE 901?

A voice may be identified by anyone who has heard it (including familiarity gained for litigation). A phone call to a business may be authenticated by showing the call was made to the business's number and the conversation related to business reasonably transacted over the phone; a call to a person, by showing the call was to that person's number and the speaker was that person.

State the Best Evidence (Original Document) Rule under FRE 1002.

To prove the content of a writing, recording, or photograph, the original (or a duplicate) is required when the contents are at issue — i.e., when the writing is a legally operative document or when a witness testifies relying on (not merely with knowledge independent of) the writing.

When does the Best Evidence Rule NOT require the original?

When the writing's contents are merely collateral, or when a witness has independent personal knowledge of the underlying facts. Also, duplicates are admissible to the same extent as originals unless authenticity is genuinely disputed or it would be unfair; secondary evidence is allowed if the original is lost/destroyed (not in bad faith), unobtainable, or in the opponent's control.

What may a court take judicial notice of under FRE 201, and what is its effect?

A court may judicially notice an adjudicative fact that is not subject to reasonable dispute because it is generally known within the jurisdiction or can be accurately and readily determined from reliable sources. In a CIVIL case the noticed fact is conclusive; in a CRIMINAL case the jury may, but is not required to, accept it as conclusive.

Distinguish a rebuttable presumption from a conclusive presumption in civil cases (FRE 301).

A rebuttable presumption shifts the burden of production to the opposing party; once met, the presumption disappears (bursting bubble), and the burden of persuasion remains on the original party. A conclusive (irrebuttable) presumption is a rule of substantive law that cannot be challenged with contrary evidence.

What is the difference between competency of evidence at a preliminary question (FRE 104(a)) and conditional relevance (FRE 104(b))?

Under 104(a), the judge decides preliminary questions of admissibility (e.g., privilege, qualification of an expert, whether a hearsay exception applies) and is not bound by the rules of evidence. Under 104(b), when relevance depends on a fact (conditional relevance, e.g., authentication), the judge admits it once there is evidence sufficient for the jury to find the fact.