Uniform Bar Examination (UBE) Evidence Syllabus

What is the difference between refreshing recollection (FRE 612) and recorded recollection (FRE 803(5))?

Refreshing recollection: a writing is used to jog the witness's present memory; the writing itself is not evidence (adverse party may inspect/introduce it). Recorded recollection: a witness once had knowledge but now cannot recall; a record made when fresh is read into evidence as a hearsay exception but only received as an exhibit if offered by the adverse party.

Who may impeach a witness, and what is the modern rule? (FRE 607)

Any party, including the party that called the witness, may attack the witness's credibility. The traditional 'voucher' rule prohibiting impeaching one's own witness has been abolished.

How may a witness be impeached by character for truthfulness under FRE 608(a)?

By reputation or opinion testimony about the witness's character for truthfulness or untruthfulness. Evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

May specific instances of conduct be used to impeach a witness's character for truthfulness? (FRE 608(b))

Extrinsic evidence is not admissible to prove specific instances of conduct to attack/support truthfulness. But on cross-examination, the court may allow inquiry into specific instances if probative of truthfulness/untruthfulness. You must take the witness's answer.

How are convictions used for impeachment under FRE 609 for crimes involving dishonesty or false statement?

Any witness may be impeached with a conviction (felony or misdemeanor) that required proving a dishonest act or false statement (crimen falsi). Admission is automatic—no balancing—if the conviction or release is within 10 years.

How are felony convictions NOT involving dishonesty used for impeachment under FRE 609?

For an ordinary witness, admissible subject to FRE 403 balancing. For a criminal defendant-witness, admissible only if the probative value outweighs the prejudicial effect (a reverse, defendant-protective balance).

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

If more than 10 years have passed since the 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.

How may a witness be impeached by bias or interest?

By showing the witness has a motive to lie or slant testimony (e.g., relationship to a party, financial interest, plea deal, hostility). Bias is not collateral, so extrinsic evidence is admissible (usually after the witness has a chance to explain/deny).

What is impeachment by prior inconsistent statement, and when is extrinsic evidence allowed?

A witness may be impeached by showing a prior statement inconsistent with current testimony. Extrinsic evidence is admissible only if the statement is not collateral and the witness is given an opportunity to explain or deny (timing flexible; exception for opposing-party statements).

When is a prior inconsistent statement admissible as substantive evidence (not just impeachment)?

Under FRE 801(d)(1)(A), when the prior inconsistent statement was given under oath at a trial, hearing, other proceeding, or deposition. Otherwise it is admissible only to impeach.

What is the rule for lay opinion testimony under FRE 701?

A lay witness's opinion is admissible if 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 specialized knowledge governed by Rule 702.

What are the requirements for expert testimony under FRE 702?

A qualified expert (by knowledge, skill, experience, training, or education) may testify if: the specialized knowledge will help the trier; the testimony is based on sufficient facts/data; it is the product of reliable principles and methods; and the expert reliably applied those principles to the facts.

What is the Daubert standard for reliability of expert testimony?

The trial judge acts as gatekeeper assessing scientific reliability using factors such as: testability/falsifiability, peer review and publication, known or potential error rate, existence of standards/controls, and general acceptance in the relevant community.

What bases of opinion may an expert rely on under FRE 703?

Facts/data the expert personally observed, was made aware of, or that are reasonably relied upon by experts in the field. Otherwise-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 opinion testimony about an ultimate issue? (FRE 704)

An opinion is not objectionable just because it embraces an ultimate issue. Exception: in a criminal case, an expert may NOT state an opinion about whether the defendant did or did not have the mental state constituting an element of the crime or defense.

What is the definition of hearsay under FRE 801?

Hearsay is an out-of-court statement (oral, written, or assertive conduct) offered in evidence to prove the truth of the matter asserted. A 'statement' is a person's assertion intended as an assertion.

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

Verbal acts/legally operative words (contract, defamation), effect on the listener (notice, state of mind), circumstantial evidence of the declarant's state of mind, and impeachment by prior inconsistent statement. These are not hearsay because not offered for truth.

What statements are defined as 'not hearsay' under FRE 801(d)(1) (prior statements of a testifying witness)?

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

What are opposing party statements (admissions) under FRE 801(d)(2)?

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

Which hearsay exceptions apply regardless of the declarant's availability? (FRE 803, list 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—among others. Availability of the declarant is immaterial.

What is the difference between a present sense impression and an excited utterance? (FRE 803(1) vs (2))

Present sense impression: describes/explains an event made while or immediately after perceiving it (focus on contemporaneity). Excited utterance: relates to a startling event made while under the stress of excitement it caused (focus on the stress/excitement; broader time window).

What is the then-existing state of mind exception, and its key limitation? (FRE 803(3))

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

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

Statements made for, and reasonably pertinent to, medical diagnosis or treatment—describing medical history, past/present symptoms, or their general cause—are admissible. Statements of fault/identity of the wrongdoer are generally NOT covered (exception: domestic abuse, where the abuser's identity may be pertinent to treatment).

What are the foundational requirements for the business records exception? (FRE 803(6))

A record made at or near the time by (or from info from) someone with knowledge, kept in the course of a regularly conducted business activity, where making the record was a regular practice—shown by a custodian or certification—and the source/method does not indicate a lack of trustworthiness.

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

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

Which hearsay exceptions require the declarant to be unavailable? (FRE 804)

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

What qualifies as 'unavailability' under FRE 804(a)?

The declarant is exempt due to 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.

What are the requirements of the former testimony exception? (FRE 804(b)(1))

Testimony given at a trial, hearing, or deposition is admissible against a party who had (or, in civil cases, whose predecessor in interest had) an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

What are the requirements for a dying declaration? (FRE 804(b)(2))

In a homicide prosecution or any civil case, a statement made by a declarant who believed death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. The declarant must be unavailable but need not actually have died.

What is a statement against interest, and how does it differ from an opposing party admission? (FRE 804(b)(3))

A statement that, when made, was so contrary to the declarant's proprietary, pecuniary, or penal interest that a reasonable person would not have made it unless true; requires the declarant be unavailable (and corroboration if exposing to criminal liability and offered to exculpate). Unlike a party admission, it can be made by any unavailable person and must be against interest when made.

What is the residual (catch-all) hearsay exception? (FRE 807)

A hearsay statement not covered by 803/804 may be admitted if it is supported by sufficient guarantees of trustworthiness (considering totality and corroboration) and is more probative on the point than other reasonably available evidence, with reasonable notice to the adverse party.

What does the Confrontation Clause bar, under Crawford v. Washington?

In a criminal case, it bars admission against the accused of testimonial hearsay from a declarant who does not testify at trial, unless the declarant is unavailable AND the defendant had a prior opportunity to cross-examine the declarant.

How do courts distinguish 'testimonial' from 'nontestimonial' statements made to police? (Davis v. Washington)

Statements are nontestimonial when made under circumstances objectively indicating their primary purpose is to enable police to meet an ongoing emergency. They are testimonial when the primary purpose is to establish or prove past events potentially relevant to later prosecution.

What is the elements/key feature of the attorney-client privilege?

A client has a privilege to refuse to disclose, and prevent others from disclosing, confidential communications made to facilitate legal services between the client (or representative) and the attorney (or representative). The privilege belongs to the client and survives the client's death.

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 the commission of what the client knew or should have known was a crime or fraud. Communications about past wrongdoing remain privileged.

What are the two spousal privileges, and how do they differ?

(1) Spousal testimonial/adverse-testimony privilege: in a criminal case, a witness-spouse may refuse to testify against the defendant-spouse (held by the witness; requires a valid marriage at time of trial). (2) Marital communications privilege: protects confidential communications made during marriage (held by both spouses; survives divorce; applies in civil and criminal cases).

What is the psychotherapist-patient privilege? (Jaffee v. Redmond)

Confidential communications between a patient and a licensed psychotherapist or social worker made for diagnosis or treatment of a mental condition are privileged. Recognized in federal courts; subject to exceptions such as dangerous-patient situations.

What are the basic methods of authenticating evidence under FRE 901?

The proponent must produce evidence sufficient to support a finding that the item is what it claims to be. Methods include witness with personal knowledge, lay opinion on handwriting, expert/comparison by trier, distinctive characteristics, voice identification, evidence about a phone conversation, and public records/process.

What items are self-authenticating under FRE 902?

Items requiring no extrinsic evidence of authenticity, including 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 and certified electronic/machine records.

What is the chain of custody requirement?

For evidence that is not readily identifiable or is susceptible to tampering/alteration (e.g., blood, drugs), the proponent must show a substantially unbroken chain accounting for the item's whereabouts from seizure to trial to establish that it is in substantially the same condition.

What is the best evidence (original document) rule? (FRE 1002)

To prove the contents of a writing, recording, or photograph, the original (or a duplicate) is required. It applies when the contents are at issue—e.g., the legal rights/obligations are embodied in the writing, or a witness is testifying based on the writing rather than personal knowledge.

When is a duplicate admissible, and when is secondary evidence (e.g., testimony) allowed under the best evidence rule? (FRE 1003-1004)

A duplicate is admissible to the same extent as an original unless there is a genuine question of authenticity or it would be unfair. Other evidence of contents is allowed if the original is lost/destroyed (not in bad faith), unobtainable, in the opponent's control, or relates only to a collateral matter.

What is judicial notice of an adjudicative fact, and its effect in civil vs. criminal cases? (FRE 201)

A court may take judicial notice of a fact 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 jury must accept the fact as conclusive; in a criminal case the jury may, but is not required to, accept it.

What is the difference between the burden of production and the burden of persuasion?

Burden of production: a party must produce enough evidence to allow a reasonable trier to find the fact (avoids directed verdict). Burden of persuasion: the party must convince the trier to the required standard (preponderance, clear and convincing, or beyond a reasonable doubt).

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

A presumption shifts the burden of production to the party against whom it is directed; if that party produces sufficient rebutting evidence, the presumption disappears. The burden of persuasion remains on the party who had it originally.

What is the rule of completeness? (FRE 106)

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing/recording—that in fairness ought to be considered at the same time.

How does the court resolve preliminary questions of admissibility? (FRE 104)

The court decides preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible (not bound by evidence rules except privilege). When relevance depends on a fact (conditional relevance), evidence is admitted upon proof sufficient to support a finding the fact exists.

What is the limited admissibility rule, and how is it handled? (FRE 105)

When evidence is admissible for one purpose or against one party but not another, the court, on request, must restrict the evidence to its proper scope and instruct the jury accordingly (a limiting instruction).

What is the difference between a general objection and a specific objection, and the role of an offer of proof?

A specific objection states the legal ground (preserving only that ground for appeal); a general objection states no ground (preserved only if no ground existed). When evidence is excluded, the proponent must make an offer of proof showing its substance to preserve error, unless the substance is apparent from context.

What is the present recollection refreshed vs. the collateral matter rule in impeachment?

A collateral matter is one not independently provable or relevant except to contradict the witness; extrinsic evidence is barred on collateral matters (you must accept the witness's answer). Non-collateral matters—bias, prior inconsistent statements on material facts, sensory/mental defects, and contradiction on material facts—allow extrinsic evidence.

What is the habit evidence rule, and how does it differ from character evidence? (FRE 406)

Evidence of a person's habit (or an organization's routine practice) is admissible to prove the person/organization acted in accordance with it on a particular occasion. Unlike character, habit is a specific, regular, near-automatic response to a particular situation and needs no corroboration or eyewitness.

What is the learned treatise hearsay exception? (FRE 803(18))

Statements in a published treatise, periodical, or pamphlet on a science/art are admissible if established as a reliable authority (by expert testimony or judicial notice) and called to an expert's attention on cross or relied on during direct. The statements are read into evidence but not received as an exhibit.