Admissibility of Evidence in Legal Proceedings, Exams of Law

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David Mungai [COMPANY NAME] [Company address]

MBE Multistate Bar Examination

Evidence 2025 Exam Review Questions

and Answers | 100% Pass | Graded +

MBE Multistate Bar Examination

Evidence 2025 Exam Review Questions

and Answers | 100% Pass | Graded +

What is Evidence Law? - Answer>> The law of evidence is a system of rules and standards that regulate the admission of proof (evidence) in a court proceeding. In other words, the important facts of the case are determined by proof that is filtered through the applicable rules of evidence and determined to be either admissible or inadmissible. This proof includes testimony, writings, physical objects, and anything else presented to the senses of the jury. Such proof can be direct or circumstantial in nature. What Law Applies on the Bar Exam? - Answer>> The Federal Rules of Evidence govern on the Multistate Bar Examination ("MBE"). Minor caveat: There are a few situations where federal courts will apply state law (for example, with respect to privilege in a diversity case). Applicability of Federal Rules - Answer>> We know that the Federal Rules control on the bar exam, but you might encounter an exam question about whether they apply in a particular federal proceeding. The Federal Rules are generally appli- cable in all civil and criminal federal proceedings. However, there are certain types of proceedings (listed below) where the judge or jury is permitted to consider more information than would be admissible under the Federal Rules.

• Misleading the jury (there is a danger that the jury will give undue weight to the evidence)
• Undue delay
• Waste of time
• Needless presentation of cumulative (repetitive) evidence Under the Federal Rules, unfair surprise is not a valid ground upon which to exclude relevant evidence. Note: You'll encounter a few isolated situations where the judge must use a different balancing test to determine whether evidence is admissible, but Rule 403 is the standard balancing test for most evidence. Similar Occurences - Answer>> As a general rule, if evidence involves some time, event, or person other than that involved in the present case, it is inadmissible. The rationale is that the evidence often does not survive the Rule 403 balancing test; in other words, the relevance is weak to begin with and the probative value is substantially outweighed by pragmatic considerations (for example, the dangers of confusing the issues, misleading the jury, or wasting time). Despite the general rule above, some recurring situations have produced concrete rules that may allow prior similar occurrences to be admitted. The following are examples of relevant similar occurrences: Plaintiff's Accident History—Prior False Claims or Same Bodily Injury Similar Accidents or Injuries Caused by Same Event or Condition Previous Similar Acts Admissible to Prove Intent Sales of Similar Property Rebutting Claim of Impossibility

Causation Habit and Business Routine Evidence Industry Custom as Evidence of Standard of Care Plaintiff's Accident History—Prior False Claims or Same Bodily Injury - Answer>> Evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally inadmissible to show the invalidity of the present claim; all it demonstrates is that the person is litigious or accident-prone. However, such evidence may be admissible if it tends to show something other than carelessness:

• Evidence that a plaintiff has made previous similar false claims is usually relevant to prove that the present claim is likely to be false.
• Evidence of prior accidents may be admissible where the cause of the plaintiff's damages is at issue. If the plaintiff previously injured the same part of their body, the evidence may be admitted to show that the plaintiff's condition is attributable (in whole or in part) to the prior injury rather than the current accident. Similar Accidents or Injuries Caused by Same Event or Condition - Answer>> Generally, other accidents involving the defendant are inadmissible because they merely show the defendant's general character for carelessness. However, evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is admissible to prove: (1) the existence of a dangerous condition, (2) that the dangerous condition was the cause of the present injury, and (3) that the defendant had notice of the dangerous condition (if the other accident occurred before the plaintiff's accident).

concerning other times, events, or persons (for example, damage to nearby homes caused by D's blasting is relevant to prove D's blasting damaged P's home). Habit and Business Routine Evidence - Answer>> Evidence of a person's habit (or evidence of the routine practice of an organization) is admissible as circumstantial evidence that the person (or organization) acted in accordance with the habit on the occasion at issue in the case. Habit describes a person's regular response to a specific set of circumstances. Thus, there are 2 defining characteristics of habit: (1) frequency of conduct and (2) particularity of circumstances. Distinguish Character Evidence Character describes someone's general disposition or propensity with respect to general traits. As discussed in the Character Evidence module, this type of evidence is generally not admissible to prove how a person acted during the events of the case. Example: The fact that Carlos is a "careless" driver is inadmissible to suggest that he ran a red light and caused the accident involving the plaintiff. Note: Watch for key words such as "always," "invariably," "instinctively," and "automatically" in a question's fact pattern. These words may indicate habit.

Industry Custom as Evidence of Standard of Care - Answer>> Evidence as to how others in the same trade or industry have acted in the recent past may be offered as evidence of the appropriate standard of care (to show how the party in the current case should have acted). However, industry custom isn't conclusive on this point; for example, an entire industry may be acting negligently. Example: Plaintiff is injured when a blade spins off a lawn mower. In an action against the manufacturer, she may show that during the relevant time period, 80% of all other lawn mower manufacturers had installed devices to prevent blade spin-off. While not conclusive (maybe the other companies were being overly cautious), it is admissible as some evidence of the standard of care in the industry. Public Policy Exclusions - Answer>> Certain evidence is excluded by the Federal Rules because public policy favors the behavior involved. For example, we as a society encourage the settlement of disputes and the immediate repair of dangerous conditions. If such evidence were routinely admissible in court, it could dissuade people from doing these things in the first place. Evidence excluded for public policy reasons includes the following:

1. Liability insurance
2. Subsequent remedial measures
3. Offers to pay medical expenses
4. Settlement offers or negotiations
5. Plea negotiations
6. Past sexual conduct of victims (rape shield laws)

direct admissions of liability—are also inadmissible for these purposes. Note: Evidence of settlement is admissible to impeach a witness on the ground of bias. Disputed Claim Required The public policy exclusion for settlements and negotiations only kicks in if there was a claim or some indication that a party was going to make a claim (although the party need not have actually filed suit). Furthermore, the claim must have been in dispute as to either (1) liability or (2) amount. Limited Exception to Rule—Civil Dispute with Government Authority Under the Federal Rules, conduct or statements made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority are not excluded when offered in a criminal case. For example, a defendant's admissions of fact during settlement negotiations with a securities enforcement agency would be admissible against the defendant in a related criminal trial. Plea Discussions - Answer>> The following are generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions:

• Offers to plead guilty;
• Withdrawn guilty pleas;
• Actual pleas of nolo contendere ("no contest"); or
• Statements of fact made during any of the above plea discussions Note: An actual guilty plea (not withdrawn) is generally admissible in related litigation as a statement of an opposing party (see the Hearsay module).

Payments of and Offers to Pay Medical Expenses - Answer>> Evidence that a party has paid or offered to pay an injured person's medical, hospital, or similar expenses is inadmissible to prove liability for the injury. However, unlike the situation with settlement negotiations, admissions of fact accompanying such payments and offers are admissible. Generally, the most important thing to remember about offers to pay medical expenses is that accompanying admissions of fact are admissible. Beware, however, of an offer to pay medical expenses that is also an offer to settle (for example, "I'll pay your medical expenses if you drop the case"). In that situation, the more restrictive rule for settlement negotiations applies; meaning, any accompanying statements or conduct would be excluded along with the offer. Types of Character Evidence - Answer>> Character evidence refers to a person's general propensity or disposition (such as for honesty, fairness, peacefulness, violence). Character evidence might be offered as substantive evidence (meaning, to prove a fact at issue in the case) for the following purposes:

• To prove a person's character in the rare situation where their character is directly in issue in the case (meaning, an essential element of a claim or defense); or
• To serve as circumstantial evidence of how a person probably acted during the events of the case. This is also known as "conduct in conformity with character" or "propensity" evidence. This purpose for offering character evidence is the focus of this module because it is permitted only in a few situations.

meaning, the prosecution is limited to offering impeachment evidence rather than substantive character evidence. Prosecution's Options—Cross-Examination of Defendant's Character Witness and Rebuttal - Answer>> Once the defendant opens the door by introducing character evidence, the prosecution can take either or both of the following actions:

• The prosecution can cross-examine the defendant's character witness regarding the basis for their testimony by asking "Have you heard?" or "Did you know?" questions about specific acts of the defendant that show the defendant's bad character for the trait in question. The permitted purpose of the cross-examination is to show the character witness's lack of knowledge, not to prove the defendant's bad character.
• The prosecution can call its own character witnesses to provide reputation or opinion testimony about the defendant's bad character for the trait in question. Any misconduct, including prior arrests, may be inquired about while cross-examining a defendant's character witness. Remember, however, that the prosecutor is limited to inquiry of the witness; they may not introduce any extrinsic evidence of the misconduct. Be careful to distinguish asking a character witness whether they are aware of the defendant's prior arrests, which is proper, and impeaching a witness with the witness's own arrests, which is improper. Victim's Character in Criminal Case - Answer>> When Defendant Can Initiate Except in sexual assault cases (see 4.3.3, below), the defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant's

innocence. Although a victim's character usually has no bearing on the defendant's innocence, it becomes relevant when the defendant claims self-defense and argues that the victim was the first aggressor. Prosecution Rebuttal Once the defendant has introduced evidence of a victim's bad character for a pertinent trait (usually violence), the prosecution may rebut with reputation or opinion evidence of:

• The victim's good character for the same trait, or
• The defendant's bad character for the same trait The rules above apply where evidence of the victim's character is being offered for propensity purposes (to prove how the victim likely acted during the altercation at issue). But evidence of a victim's character might also be offered for a non-propensity purpose—to prove the defendant's state of mind at the time of the altercation. If the defendant knew at the time of the altercation that the victim had a violent reputation or had committed violent acts in the past, evidence of the victim's reputation or acts may be admitted to prove the defendant acted reasonably in responding to the victim's aggression. The above prohibition on specific acts does not apply when the evidence is offered for a non-propensity purpose. When Prosecution Can Initiate—Rebutting Self-Defense Claim in Homicide Case - Answer>> There is a special rule that allows the prosecution to offer evidence of a victim's good character for peacefulness. In a homicide case in which the defendant pleads self-defense, evidence of any kind (not

Character Evidence in Civil Cases - Generally Not Admissible - Answer>> In civil cases, character evidence is generally inadmissible to prove conduct in conformity; meaning, it cannot be offered to prove how a person probably acted during the events of the current case. This is true regardless of which party seeks to offer the evidence. Admissible When Character Directly in Issue When proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense, it is said that character is "directly in issue." This is rare, and for bar exam purposes is generally limited to:

• Defamation cases where truth is a defense (plaintiff's character is at issue);
• Negligent hiring or entrustment cases (hired/entrusted person's character is at issue); and
• Child custody cases (parents' character is at issue) When character is directly in issue, all forms of character evidence (reputation, opinion, and specific acts) are admissible. Other Misconduct for Non-Character Purpose - Answer>> General Rule—Other Misconduct Inadmissible Evidence of a person's other crimes, wrongs, or acts is generally inadmissible if offered solely to prove conduct in conformity/propensity. In other words, the evidence can't be offered just to suggest that because the defendant tends to do bad things, they are more likely to have committed the charged crime.

Admissible If Independently Relevant (MIMIC Evidence) Evidence of a person's other crimes, wrongs, or acts is admissible if relevant to some issue other than their character or propensity to commit the crime charged (or the alleged act in civil cases). In other words, if a defendant's other misconduct shows something specific about the charged crime—something more than just bad character— evidence of that misconduct may be admissible as bearing on guilt. Such evidence is usually offered in criminal cases, but it can also be used in civil cases (such as in tort actions for fraud and assault). Non-character purposes for offering the evidence may include motive (for example, burning a building to hide embezzlement), intent (to show guilty knowledge or lack of good faith), absence of mistake or accident, identity (for example, "signature" crimes/modus operandi), or common plan or scheme (usually, committing one crime to prepare for another). Even though "MIMIC evidence" is a helpful shorthand, keep in mind that this is not a comprehensive list of permitted purposes. The evidence can be admitted as long as it is relevant to any purpose other than the defendant's general character or propensity to commit the charged crime. Requirement for Admissibility - Answer>> The misconduct may be proved by any evidence, such as witness

defendant's other acts of sexual assault or child molestation is admissible in a criminal or civil case where the defendant is accused of committing an act of sexual assault or child molestation. The party intending to offer this evidence must disclose it to the defendant 15 days before trial (or later with good cause). Such evidence is relevant for any purpose, including the defendant's propensity to commit sex crimes. This is the one situation where evidence of a defendant's specific acts is admissible to show their propensity to commit the act at issue in the case. Authentication of Writings and Spoken Statements - Answer>> As a general rule, a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the writing is genuine). Methods of Authentication - Answer>> Parties may admit the genuineness of a document by the pleadings or by stipulation. A document can also be authenticated by other evidence, and the following are examples of proper authentication. Opponent's Admission A writing can be authenticated by evidence that the party against whom it is offered has either admitted its authenticity or acted upon it

as authentic. Eyewitness Testimony A writing can be authenticated by testimony of anyone who saw it executed or heard it acknowledged. The testimony can be from anyone; it doesn't have to be from a subscribing witness unless required by statute. Handwriting Verifications A writing can be authenticated by evidence that the maker's handwriting is genuine. This evidence may be in the form of:

• The opinion of a lay witness (nonexpert) who has familiarity with the alleged writer's handwriting in the course of normal affairs (not acquired for purposes of the current litigation);
• The opinion of an expert who has compared the writing to samples of the alleged writer's handwriting; or
• The fact-finder's (jury's) comparison of the writing to samples of the alleged writer's handwriting Additional Methods of Authentication - Answer>> Ancient Documents A document can be authenticated by evidence that it:
• Is at least 20 years old when offered into evidence;
• Is in a condition that creates no suspicion as to authenticity; and
• Was found in a place where such a writing would likely be kept Note that while documents may be authenticated if they are at least 20 years old, the related hearsay exception for ancient documents will only apply if the document was prepared before

Reply Letter Doctrine A writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author. Photographs and Videos