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EVIDENCE
PROFESSOR SHERMAN J. CLARK
UNIVERSITY OF MICHIGAN LAW SCHOOL
CHAPTER 1: PRESENTATION OF EVIDENCE (PART 1)—INTRODUCTION OF EVIDENCE
A. Role of Judge and Jury
1. In General
o The jury decides questions of _______________; the judge decides questions of
_______________.
o The question of whether a piece of evidence gets in is a question of _______________.
The ______________________ decides whether evidence is admissible.
Includes whether there is a privilege or whether witnesses are qualified
2. Preliminary Questions
o Many evidentiary issues are decided prior to trial through motions in limine or preliminary
hearings.
o Sometimes preliminary questions of law hinge on factual questions.
o The ___________________ decides fact questions that go to the admissibility of evidence.
o For preliminary factual decisions, the court is ________________________________ by the
Federal Rules of Evidence (FRE).
3. Preliminary Hearings
o Conducted _________________________ the presence of the jury in three circumstances:
1) When the issue is the admissibility of a ______________________________ in a
criminal trial;
2) When the defendant in a criminal case is a ________________________ and makes that
request; and
3) When the interests of ________________________ otherwise require (unfair prejudice
to a party)
4. Weight and Credibility
The _______________ decides the weight and credibility of the evidence.
B. Challenge to Evidence Ruling
1. Challenging on Appeal
o Evidentiary ruling can be reversed on appeal only if:
1) A substantial _____________ of a party has been affected (i.e., not harmless error); and
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2) The judge was __________________________ of the mistake at trial and given a chance
to correct it
o Notify court by ______________________________ or by offer of proof
2. Plain Error Rule
o Plain error—error that was obvious on its face
o Appellate court will sometimes reverse the case to prevent a miscarriage of justice, even if
no objection or offer of proof was made at trial
Note 1: You should not rely on the plain error rule. You should actively
preserve the record for appeal.
3. Notifying the Court to Preserve it for Appeal
a. Objection
If the court has admitted evidence that should have been excluded, must object and explain
why the evidence should have been excluded
b. Offer of proof
If the court refuses to admit evidence that should have been admitted, must make an
offer of proof on the record
Offer of proof—explain to the court what the evidence would have been and why it
should have been admitted
Not necessary if the substance and logic of the evidence is straightforward and clear on
the surface
C. Limited Admissibility (Rule 105)
• Evidence may be admissible for ___________ purpose, but ______________________________
purpose.
• Upon request of the objecting party, the court will give the jury a _________________________
instruction
o I.e., the evidence can only be used for one purpose, but not another illegitimate purpose
Exam Tip 1: Pay attention not just to the type of evidence but the purpose for
which the evidence is being used.
D. Rule of Completeness (Rule 106)
• If a party introduces part of a _____________________________ statement, the opposing party
may introduce other portions of that statement that are necessary to put the admitted portion
into perspective.
• Can be introduced immediately; no need to wait for the party’s turn to present its case
• Other portions may be introduced even if they might otherwise be _______________________.
MBE Evidence | © 2021 Themis Bar Review, LLC | 3
E. Judicial Notice
• The court's acceptance of a fact as true without requiring formal proof
• It is about so-called _________________________________________ facts—facts that the jury
would otherwise have to decide
• If not subject to reasonable ______________________, the court will instruct the jury to accept
that fact as proven
• Facts that are not subject to reasonable dispute:
o Generally known within the territorial jurisdiction of the court; or
o Accurately and readily determined by sources whose _________________________ cannot
reasonably be questioned
Example 1: A question of whether a particular city is north or south of
another city, or whether July 5
th
in a certain year was a Friday
• Civil case—court will instruct the jury that it must accept the fact as proven
• Criminal case—court will instruct the jury that it _______________ (but need not) find that fact
CHAPTER 2: PRESENTATION OF EVIDENCE (PART 2)—MODE OF PRESENTATION; BURDENS AND
PRESUMPTIONS
A. Mode and Presentation of Evidence
1. Trial Process
o Begins with the ______________________ (civil case) or ____________________________
(criminal case) introducing its case first, then the defendant will present its case
o Order of presentation of evidence and witnesses is within the court’s
______________________________ to control
o Court may call and question witnesses.
All parties can cross-examine those witnesses.
Every party should have an opportunity to __________________ outside the hearing of
the jury.
2. Form of Questions—Leading Questions
o Suggests the __________________________ within the question
Example 2: “Isn’t it true that you were walking down the street on that
Friday?” or “Isn’t it true that you were not wearing your glasses that day?”
o Generally, not permitted on ___________________________ examination
o Exceptions:
1) To elicit preliminary background information not in dispute;
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2) The witness has trouble communicating due to age or infirmity; or
3) When you call a __________________________ witness or adverse party
3. Refreshing a Witness’s Recollection
o Arises when a witness is having trouble remembering
o Allowed to help the witness remember by showing them a document (or something else),
typically a person’s notes
o The witness looks at the notes, remembers, puts the notes aside, and proceeds to testify
from present memory—called __________________________________________________
refreshed
Example 3: A witness cannot recall what occurred on the night in question.
The attorney asks, “Would it help you remember what happened that night if I
sang to you part of the Aria from La Boheme, which was playing at the time the
event happened?” The witness says, “Yes it might.” The attorney sings the song
and the witness suddenly remembers everything that happened.
o The document ________________________ become evidence and the witness __________
___________ read from it
o The opposing party is permitted to see and inspect the document, and even show it to the
jury.
Note 2: Contrast with Past Recollection Recorded (discussed later):
- Arises when the witness still cannot remember after trying to refresh their
memory
- Permits the witness to read the notes into evidence under a hearsay exception
- Requires that the witness cannot remember, the record was made when it
was fresh in their memory, and the record accurately reflects their memory
4. Cross-examination
o Courts limit the _________________ of cross-examination to the ____________________ of
direct examination.
o Courts are permitted to allow broader inquiry.
o Allowed to use ______________________________ questions
5. Other Improper Questions
a. Compound questions
A question that asks for several answers
Example 4: “Isn’t it true that you went to the bank and then you took out the
money and then you went home and never did anything else?”
MBE Evidence | © 2021 Themis Bar Review, LLC | 5
b. Facts not in evidence
A question that assume facts not in evidence
Example 5: “Do you still hate your mother?”
c. Argumentative questions
Not really a question; just intended to bother or harass the witness
Example 6: “What the heck makes you think you can get away with that?”
d. Questions calling for inappropriate conclusions
Call for a conclusion that the witness is not _________________________________ to make
Example 7: “How did the executives in the company feel when they received
your letter?”
e. Repetitive questions
Have already been “asked and answered”
A lawyer can continue to ask the question if the witness has not actually answered it.
6. Exclusion of Witnesses
o Witnesses must be excluded from the courtroom upon the request of __________________
party to prevent the witness from hearing the testimony of others.
Editorial Note 1: If a party requests exclusion or the court deems it necessary,
the witness must be excluded, subject to the exceptions below.
o Some witnesses may not be excluded:
A witness who is essential to the presentation of the case;
A person, such as a crime victim, who is permitted by state rule to remain in the
courtroom; or
A party in the case
B. Burdens and Presumptions
1. Burden of Proof
a. Burden of _____________________________________________
A party must produce enough evidence to get the issue to the jury.
b. Burden of _____________________________________________
A party must convince the jury to decide the case in its favor.
c. Civil cases
Usually, the standard is a _________________________________________ of the evidence.
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d. Criminal cases
____________________________________________________________ standard
2. Presumptions
a. Rebuttable presumption
Shifts the burden of ______________________________ on a particular issue, but not
the burden of ______________________________
Useful for things that are difficult to prove directly
Example 8: The issue of whether someone received a letter. If you can show
that you correctly mailed the letter, there is a presumption that the recipient
received the letter. This shifts the burden of production to the other side to
prove that they did not receive it.
If counterproof is introduced, the presumption is eliminated (the bubble bursts) and
there is sufficient evidence for the jury to decide the issue.
b. Destruction of evidence
If a party destroys evidence, there is a presumption that it would have been adverse to that
party.
c. Conclusive (or irrebuttable) presumption
Rules of _______________ that happen to use the language of presumption
CHAPTER 3: RELEVANCE (PART 1)—GENERAL CONSIDERATIONS AND CHARACTER EVIDENCE
A. General Considerations
1. FRE 401 and 402
o Evidence must be ______________________________.
o If evidence is irrelevant, it is _____________________________________________.
o All relevant evidence is admissible, unless excluded by a specific rule.
Editorial Note 2: The Professor misspoke when restating the above rules.
Irrelevant evidence is inadmissible and relevant evidence is generally
admissible, unless it is excluded by a specific rule.
o Relevance—makes the fact in issue ________________________________ than it would be
without the evidence
Example 9: Evidence that the defendant was seen in a particular city on a
given weekend is not sufficient to convict the defendant of a crime. However, it
could be relevant to the issue of whether the defendant committed the crime.
MBE Evidence | © 2021 Themis Bar Review, LLC | 7
Note 3: Watch out—the term “relevant” has a specific definition under the FRE
that differs from the everyday use of the word.
o Evidence is relevant if it is both _____________________ (related to some issue in the case)
and ___________________________ (having a tendency to prove or disprove some fact).
2. Direct vs. Circumstantial Evidence
o Direct evidence—____________________________________ to what it is offered to prove
(e.g., eyewitness testimony)
o Circumstantial evidence—Evidence from which a fact can be inferred
Exam Tip 2: Keep in mind, the issue with relevance is how a particular piece of
evidence makes a certain fact more likely.
3. Exclusion of Relevant Evidence (FRE 403)
o Even if the evidence is relevant and there is no particular rule excluding it, the court has
discretion to exclude relevant evidence if certain risks _______________________________
outweigh its probative value.
o Risks—confusion of the issues, unfair ______________________________, misleading the
jury, or waste of time
Exam Tip 3: This rule is weighed in favor of admissibility. The probative value
must be substantially outweighed by the risks.
4. Relevance Conditioned on Fact (FRE 104(b))
o Sometimes, the relevance of evidence hinges on some fact that is best for the jury.
Example 10: A letter is offered into evidence. There are no issues with its
admissibility. But, there is a question as to whether the person received the
letter. The relevance of the letter depends on a question of fact—whether it
was received. If it was received, it demonstrates that the party was on notice.
If it was not received, then it is irrelevant.
o Courts will simply admit the evidence on the condition that the jury will decide that
preliminary fact later.
B. Character Evidence
1. In General
o Rule about the _____________________________ argument or inference
o Prohibits the argument that a person acted in conformity with a particular character trait
o Prevents a party from proving a character trait in order to show action in conformity
Example 11: The defendant started this fight because he’s a violent person. A
violent person is much more likely to start a fight, so it’s likely he started this
one. This is evidence of a character trait used to show action in conformity and
is generally prohibited.
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o Rationale—too prejudicial, not that probative of the current conduct, and it distracts the
jury’s attention
2. Methods of Proving Character
o When admissible, can only be proved through ___________________________________ or
______________________________ testimony
o Cannot be proved by specific bad acts
3. Other Relevant Use for Character Evidence
o Character evidence cannot be used to prove propensity.
o Can be used for some other relevant purpose (i.e., when character is at issue)
o If character is an ___________________________________________________ in the case,
then it can be proved
Example 12: Character evidence may be permitted in a child custody case
when there is a question about whether a parent is violent.
Example 13: Character evidence may be permitted in a negligent entrustment
case to prove carelessness.
Note 4: Character is generally only at issue in civil cases.
CHAPTER 4: RELEVANCE (PART 2)—CHARACTER EVIDENCE (CONT’D) AND HABIT EVIDENCE
A. Character Evidence (cont’d)
1. Impeachment (covered fully in later lecture chapters)
Propensity argument can be made to impeach (e.g., the witness is a liar)
2. Civil Cases
o Propensity argument can almost never be made.
o Except: in a civil case involving child molestation or sexual assault, the plaintiff ___________
introduce evidence of the defendant’s _________________________________ of that sort.
Note 5: Recall that in civil cases, if character is at issue, evidence of that trait is
admissible to prove an essential element of the case (i.e., for a non-propensity
purpose).
3. Criminal Cases
a. Basic rule
The prosecution ________________________ allowed to introduce the bad character of the
defendant.
MBE Evidence | © 2021 Themis Bar Review, LLC | 9
b. Defendant’s good character
A defendant is permitted to introduce a ______________________________ trait of
character.
Example 14: If a defendant was accused of assault, the defendant is permitted
to introduce evidence that he is a peaceful person.
Example 15: If a defendant was accused of embezzlement, the defendant
could introduce evidence that he is an honest person.
Opens the door—prosecutor is free to _______________ the defendant's claims by
attacking the defendant's character
• Prosecutor can cross-examine the defendant’s character witnesses with questions
about _____________________________________________ from the past.
Defendant is limited to witnesses who will testify about _________________________
or _____________________________________
• Defendant ________________ permitted to bring ___________________________
• On cross-examination, prosecutor _______________ inquire about
______________________________
Example 16: The defendant has his neighbor take the stand and say, “In my
opinion, the defendant is not violent,” or “The defendant has a reputation for
nonviolence.” The prosecution gets to cross-examine the neighbor and can ask
the neighbor the following questions, if the prosecution has a reasonable basis
for doing so: “Have you heard that the defendant started a fight last week?”
“Did you know that the defendant beat up four kids on his block within the last
two years?”
The prosecution cannot prove the incident; must accept the witness’s answer
Example 17: The neighbor in the above example says, “No, I’ve never heard
that.” The prosecution cannot introduce evidence about the earlier incident.
c. Victim’s character
A defendant may bring evidence about the ____________________________ character.
• May introduce evidence of a ______________________________ trait of the victim
Note 6: As a practical matter, only happens in a homicide or assault case
(violent cases) when the defendant is arguing that the victim started the
altercation (self-defense).
Example 18: The defendant is on trial for assault. He claims that it was self-
defense because the victim attacked him. The defendant can introduce
evidence that the victim is a violent person.
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Note 7: Rape Shield Laws—the defendant in a sexual assault case may NOT
introduce evidence of the alleged victim's promiscuity (discussed later).
Opens the door—the prosecution can introduce evidence that the victim is not violent
using reputation or opinion, but not specific acts.
• The prosecution can then introduce evidence that the ________________________
has the __________________________ that he or she accused the victim of having.
Example 19: In the above example, after the defendant introduces evidence
that the victim is violent, the prosecution can introduce evidence that the victim
is nonviolent AND evidence that the defendant is violent.
4. Prior Acts
o In some circumstances, evidence of a defendant’s past crimes or bad acts can be introduced
o “_______________” evidence—not used for__________________________; used for some
other purpose:
_______________________________
Example 20: If the prosecution wants to argue that the motive for a murder
was to cover up a prior embezzlement scheme, the prosecution can introduce
proof of that embezzlement.
_______________________________
Example 21: The defendant is caught in possession of drugs, and there is a
question as to whether the defendant had intent to sell those drugs. The
prosecution can introduce prior convictions of selling drugs.
Absence of mistake
Example 22: A young man marries a wealthy older woman who drowns in the
bathtub. It happens with three different women. The prosecution may
introduce the prior deaths to prove absence of mistake.
_______________________________
Example 23: The prosecution wants to prove that the defendant has a certain
modus operandi. The prosecution may be able to introduce evidence of that
modus operandi in prior crimes.
Common plan or scheme
Example 24: The prosecution may introduce the prior bad acts if
understanding a series of crimes is the only way to provide context to the crime
at issue.
MBE Evidence | © 2021 Themis Bar Review, LLC | 11
B. Habit Evidence
• Allowed to prove action in conformity with the habit
Example 25: Evidence that every morning the defendant drove a certain way
to work and stopped at the same coffee shop and got the same drink.
• Something that is routine, regular, or automatic
• Can also be the habit of an ___________________________________________
CHAPTER 5: REVIEW OF CHAPTERS 1–4: PRESENTATION OF EVIDENCE AND RELEVANCE
A. Presentation of Evidence
• ________________ decide questions of admissibility.
o Includes preliminary __________________ questions that go to admissibility
Example 26: A statement might be admissible if the person who made the
statement was an agent of a party. Admissibility under hearsay depends on a
factual determination of whether the declarant was an agent.
o The court is not bound by the FRE in deciding preliminary questions of fact.
• Party can preserve an error for appeal by:
o _______________________________ to evidence the party thinks should not have been
admitted; or
o Making an ______________________________________ with regard to evidence the party
thinks should have been admitted
• Evidence is often admissible for one purpose, but not another; the court will give a limiting
instruction upon a party’s request (FRE 105).
• Judicial notice—if question is not subject to __________________________________________
__________________, the court will not require evidence
o Court will instruct the jury to find that fact; or
o In a criminal case, instruct the jury that it may find that fact
• Leading questions are generally prohibited on __________________ examination, except:
o Preliminary information;
o Witnesses that need help testifying; and
o ___________________________ witnesses
• Cross-examination is supposed to be within the scope of _________________ examination; can
and should use ______________________________ questions
• Other improper questions—assume facts not in evidence, call for an inappropriate or
unsupported conclusion, compound, harassing or repetitive, argumentative
12 | © 2021 Themis Bar Review, LLC | MBE Evidence
• Burden of proof—plaintiff in a civil case and prosecution in a criminal case
o Burden of __________________________________ and burden of
__________________________________
o Civil case—generally _____________________________________________ of the evidence
o Criminal case—beyond a reasonable doubt
• Presumption—shifts the burden of __________________________________ on a particular fact
B. Relevance
• Evidence that makes a ______________________ fact __________________________________
than it would be without the evidence
o FRE 403 allows a court to exclude relevant evidence if certain risks—prejudice, confusion,
misleading the jury, waste of time—_____________________________________ outweigh
the probative value.
• Character evidence—the propensity argument is generally prohibited
o Permitted in criminal cases if introduced by the defendant
Opens the door—prosecutor can rebut the defendant’s evidence
o Defendant can also offer a pertinent character trait of the ___________________ (violence)
Opens the door—prosecutor can rebut with evidence that the ________________ is not
violent and also introduce evidence that the ____________________________ is violent
• Introducing evidence for some purpose other than propensity
o Civil case—character is an ____________________________________________ in the case
o MIMIC evidence using prior bad acts
CHAPTER 6: WITNESSES (PART 1)—COMPETENCE AND IMPEACHMENT
A. Competence
• Anyone who has ___________________________________________________________ of the
matter about which they are going to testify and is willing to make an _______________ to tell
the truth is competent to testify.
1. State Rules on Competency
o Some states have particular competency requirements.
Example 27: Minimum age for a child to testify
FRE—whether the child has personal knowledge and is mature enough to understand
the obligation to tell the truth and is willing to promise to do so
MBE Evidence | © 2021 Themis Bar Review, LLC | 13
o Dead Man’s statute (not included in FRE)—limits the ability of witnesses to testify about
__________________________________________ with people who are deceased
Example 28: The decedent passed away and the next day, the neighbor says
that the decedent promised to sell his car for $11. Courts may limit the
neighbor’s ability to testify against the decedent’s estate.
o Federal courts using state law to decide a civil case will defer to state competency rules.
2. Judge as Witness
A judge is ___________________ from being a witness in a trial over which she is sitting.
3. Juror as Witness
o A juror may not testify as a witness in a trial in front of the jury in which he sits.
o After the verdict or an indictment (grand jury), the parties might be tempted to ask the
jurors to testify about what happened in the jury room in the context of a motion for a new
trial or on appeal.
o FRE 606(b): a juror ____________________ testify as a witness in an inquiry into the validity
of a verdict or indictment as to:
Any statement made during _____________________________________________;
Any incident that occurred during deliberations; or
The effect of anything upon any juror's mind
o Exceptions—a juror may testify after trial about whether:
Extraneous, ______________________________ information was improperly brought
to the jury's attention;
• E.g., provided with inadmissible evidence
An _________________________________________________ was improperly brought
to bear on a juror;
• E.g., a juror was bribed or threatened
A clerical or technical error was made in entering the verdict onto the verdict form; or
A juror made a clear statement that he relied on ____________________ stereotypes or
animus in convicting a defendant
B. Impeachment—calling into question the witness’s credibility
1. Three Basic Ways to Impeach a Witness
o Show that the witness is dishonest; bad character for _______________________________
o ________________
o _______________________________ competence
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2. Bias
o Showing that the witness has some reason to lie or shade the facts
o E.g., relationship with a party, the witness is being _______________ to testify, the witness
has agreed to testify in return for a reduced sentence, the witness has an
______________________________ in the outcome of the case, etc.
3. Sensory Competence
o The witness is ___________________________________ in some way.
o The witness did not see or hear things as well as she thinks.
Example 29: How far away were you? How much did you have to drink? How
dark was it that night? Were you wearing your glasses?
CHAPTER 7: WITNESSES (PART 2)—IMPEACHMENT (CONT’D)
A. Character for Truthfulness or Untruthfulness
1. Character Witness Testimony (FRE 608(a))
o Can introduce character witnesses who will testify that the target witness is dishonest
o May be attacked through _____________________________________ or
______________________________, not prior specific incidents
2. Specific Acts (FRE 608(b))
o May __________________________________ the witness about specific acts of dishonesty
Example 30: Isn’t it true that you lied on a job application a year ago? Isn’t it
true that you falsely claimed on your resume to have an advanced degree that
you don’t have? Isn’t it true that you stole money from your partners when you
had a business years ago?
o Must be probative of untruthfulness
o Only permitted to ask; must take the witness’s answer
o Must have a _________________________________ basis for asking the question
3. Criminal Convictions (FRE 609)
a. Crimes involving ______________________________ or ____________________________
______________________________________
Example 31: perjury, fraud, embezzlement
b. Convicted of ______________________________
Crimes punishable by _______________ or more than ____________________ in prison
Court will allow impeachment with the prior felony conviction unless the risk of
prejudice _______________________________________________ the probative value
MBE Evidence | © 2021 Themis Bar Review, LLC | 15
Criminal defendant—evidence of a prior felony conviction is admissible only if its
probative value ____________________________ the prejudicial effect (“reverse 403”)
c. Old convictions
If more than ____________________ have elapsed since the conviction (or release from
confinement, whichever is later), then evidence of the conviction is admissible only if:
• The probative value of the conviction, supported by specific facts,
________________________________________________ its prejudicial effect; and
• The proponent gives an adverse party reasonable advanced notice
d. Pardon
A conviction ________________________ be used for impeachment if the witness has been
pardoned or received a certificate of rehabilitation if the action was based on a finding of
innocence or the witness has not been convicted of another felony.
B. Prior _______________________________________ Statements
Example 32: A witness takes the stand and says, “The car was blue.” You can
cross-examine the witness and say, “Didn’t you tell your mother-in-law three
weeks ago that the car was red?”
• Can be done with any kind of statement
• Can be proved by ______________________________ evidence, but only if the witness is given
the opportunity to explain or deny the evidence
C. Impeachment of a Hearsay Declarant
• When an out-of-court statement comes in under a hearsay exception, the declarant (the person
who made the statement) is acting like a ______________________ and can, therefore, be
impeached.
• Impeachment may be made by any evidence that would be admissible if the declarant had
testified as a witness.
D. Rehabilitation of a Witness
• Rehabilitation may be accomplished in one of three ways:
1) Give the witness a chance to ________________________________________________;
2) Prior ______________________________ statement—if the witness has been accused
of changing his or her story, or being bribed or pressured or having an improper motive,
can be rehabilitated with a statement that the witness made before the alleged motive
arose; or
3) If the witness has been ______________________________ as having a bad character
for truthfulness, then evidence can be introduced bolstering the witness’s character for
truthfulness (either reputation or opinion evidence).
16 | © 2021 Themis Bar Review, LLC | MBE Evidence
CHAPTER 8: WITNESSES (PART 3)—TESTIMONY
A. Lay Witnesses
• In general, we want _______________ and not __________________________ from witnesses.
• Old rule—prohibited lay witnesses (non-experts) from offering opinions or conclusions
• Opinions from lay witnesses are ______________________________ with respect to
_____________________________________________ impressions, such as appearance,
intoxication, speed, etc.
• To be admissible, a lay witness’s opinion must be:
o Based on the _______________________________________ of the witness; and
o Helpful to a ____________________________________________________ of the witness’s
testimony or the determination of a fact in the case.
• Implicit requirement—cannot be based on any ______________________________, technical,
or specialized knowledge
B. Expert Witnesses
1. Subject Matter of Testimony
o An expert witness may offer opinions or conclusions if:
The subject matter is scientific, technical, or other _______________________________
information; and
It will help the trier of fact understand the evidence or determine a fact in issue.
o Courts have generally rejected expert testimony about witness
_________________________________________.
2. Daubert Test
o Courts require that the expert:
1) Be qualified by knowledge, _______________, experience, _______________________,
or education;
2) Base his testimony on sufficient _______________ or _______________;
3) Base his testimony on reliable principles and methods; and
4) Apply the principles and methods ________________________ to the facts of the case.
Editorial Note 3: The Daubert test is a four-part test. The Professor mistakenly
skipped the third requirement listed above.
3. Ultimate Issue
o Experts _______________ express an opinion on the ultimate issue in most types of cases.
Example 33: An expert in a design-defect case may testify that the vehicle was
defective in its design.
MBE Evidence | © 2021 Themis Bar Review, LLC | 17
o Courts do not allow experts to testify about whether a criminal defendant had the requisite
____________________________________________ of any element of a crime or defense.
4. Basis of Expert Opinions
o An expert may base his or her opinion on:
Personal _____________________________________________;
Evidence presented ______________________________; or
Information reasonably relied upon by experts in that particular ___________________.
• May base opinion on facts that would otherwise be inadmissible at trial
• The basis for the expert opinion may not necessarily be admissible unless the
probative value of the information in evaluating the expert’s testimony
substantially outweighs any prejudice.
5. Court-Appointed Expert
o The court _______________ appoint an expert witness
o Must let each party know what the witness found
o Each party can depose the expert and call or cross-examine the expert.
CHAPTER 9: REVIEW OF CHAPTERS 6–8: WITNESSES
A. Competence
• Anyone can testify if they:
o Have ______________________________ knowledge;
o Can appreciate the obligation to tell the truth; and
o ____________________ to tell the truth (i.e., take an oath).
• ______________________ and jurors may not be witnesses on cases in which they are sitting.
• Jurors cannot testify after trial as to what was said in the jury room, what happened in the jury
room, or what impacted their deliberations.
o May testify about extraneous _____________________________________ information or
improper outside influence
o May testify if a juror has made a clear statement that a conviction was based on
______________________ stereotype or animus
B. Impeachment
• Adversary may _____________________ (attempt to call into question) the witness’s testimony
• Ways to impeach:
o _______________
o ______________________________ competence
18 | © 2021 Themis Bar Review, LLC | MBE Evidence
o Bad character for _____________________________________________
Introduce reputation and opinion testimony
Inquire on cross-examination about prior acts
Conviction of crimes
• Crimes involving _________________________ or ______________ statement; and
• Felonies
o Prior __________________________________ statement
Extrinsic evidence permitted as long as witness is provided a chance to explain
• After impeachment, can attempt to rehabilitate the witness
o Allow the witness to ___________________________ or clarify
o Introduce a prior ______________________________ statement
o Introduce evidence of the witness’s good character for truthfulness if that character was
attacked
C. Testimony
• A lay (non-expert) witness is permitted to testify as to her opinion when it is:
o Rationally based on the _________________________________ of the witness; and
o Helpful to a clear understanding of the testimony or the determination of a fact in issue.
• Lay witnesses cannot offer opinions based on specialized, scientific, or technical knowledge.
• Expert testimony is scientific, technical, or specialized knowledge that will help the trier of fact
o Must be qualified
o Must be based on sufficient facts and data and the methods must be applied reliably to the
case
o Expert opinion can be based on:
______________________________ knowledge;
Witnesses or evidence made known at trial; or
Other things, even if not admissible at trial, if they are the sorts of things that are
reasonably relied upon by experts in that field
CHAPTER 10: TANGIBLE EVIDENCE (PART 1)—AUTHENTICATION
A. In General
• Includes documents and other physical items
• First step—must be _____________________________________________
• Must show evidence sufficient to support a finding that the thing is what the party claims it is
o Does not mean that the court must find that the document or thing is authentic
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o The jury will decide this fact question
B. Real Evidence—Ways to Authenticate
• ______________________________________________________—testimony of a witness that
recognizes and identifies the item
• Distinctive features or ______________________________
• Chain of __________________________—technique accounting for the whereabouts of an item
along an unbroken chain
C. Documentary Evidence—Ways to Authenticate
• By ______________________________________ of the parties
• Eyewitness testimony combined with distinctive features
• Ancient Documents
o At least ____________________________ old;
o In a condition unlikely to create ______________________________; and
o Was found in a place where such documents would be if they were authentic
• Reply letter doctrine—authenticated by evidence that it was written in response to another
letter
• Handwriting verification
o _________________ or _______________ comparing it to a known sample; or
o Lay witness with personal knowledge of the handwriting (from before the current litigation)
• Self-authenticating documents (FRE 902)—include:
o Public documents bearing a government seal
o Certified copies of public records
o Official publications issued by public authority
o Trade inscriptions
o Notarized documents
o Commercial paper
D. Oral Statements
• Voices and recordings may need to be authenticated as to the identity of the speaker.
1. Voice identification
Can be authenticated by any person who has heard the voice at any time
2. Telephone conversations
o Caller recognized the speaker’s voice
o The speaker knew _______________ that only a particular person would know
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o The caller dialed the number believed to be the speaker’s and the speaker
_____________________________________________________ upon answering the phone
o The caller dialed a business and spoke with a person who answered questions about
business regularly conducted over the phone
CHAPTER 11: TANGIBLE EVIDENCE (PART 2)—THE BEST EVIDENCE RULE AND PAROL EVIDENCE RULE
A. The Best Evidence Rule (Original Document Rule)
• Rule—No describing the documents instead of showing them, unless you really need to
• Limits the ability to present other evidence of the _________________________ of a document
when the contents are ______________________________
• No witness testimony about the contents when you could just produce the actual document
1. Duplicates
o Duplicates are fine, unless:
There is a genuine question about the ___________________________________ of the
original; or
In ______________________________, the original should be required.
2. Contents “at issue”
o The document is used as _________________ of an event
Example 34: A witness testifies about who robbed the bank but the only
reason she knows the robber's identity is because she saw a picture of the
person robbing the bank. The best evidence rule requires that the picture be
produced.
o The document has actual _________________________________, such as a contract or will
o The witness is testifying based on facts only learned from the document
Example 35: The witness did not actually see the bank robbery but saw a video
of the robbery. The witness is called to testify about the robbery. The witness’s
knowledge of the robbery is based on facts learned from the video, so the video
should be produced under the best evidence rule.
Contrast with situation where a witness actually saw what happened but there also
happens to be a recording—the witness is permitted to describe his or her personal
knowledge; does not mean there is a best evidence problem
3. Exceptions to the Best Evidence Rule
a. Unavailable
May introduce other evidence of the contents if:
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• The original has been _______________ or _________________________________
(unless done by the proponent in bad faith);
• The original cannot be obtained by any judicial process; or
• The party against whom the document is introduced had ______________________
of the original and knew that it was going to be at issue at trial.
b. Public records
Can use a ______________________________ copy instead of the original
c. Voluminous writings
May be presented in the form of a _______________ or __________________________
Originals or duplicates must be made available for inspection by the other party
d. Admission by a party
The testimony, either in court or deposition, or a written statement of the party against
whom the evidence is introduced
Example 36: A party wrote a letter in which she said, “As you know, your lease
permits you to have small dogs.” At trial, an issue is the size of the dog that the
tenant had. The letter can be introduced against that party as proof of what
the lease said.
B. The Parol Evidence Rule
1. General Rule
o Excludes evidence that, if introduced, would ____________________ the terms of a written
contract
o Many contracts are explicitly described as _________________________ integrations—they
contain all of the terms of the agreement.
o No __________________________ evidence that would change the terms may be admitted.
Example 37: There is a contract that says you will paint the Professor’s house
and he will pay you $400. The contract explicitly states that it is completely
integrated. The parol evidence rule prevents the introduction of evidence that
(before signing the contract) the Professor agreed to pay extra.
2. Partial Integration
o Excludes extrinsic evidence that would _________________________________ the terms of
the agreement
o Allows evidence that might ______________________________ the terms
3. Exceptions to the Parol Evidence Rule
o Extrinsic evidence about a contract can be admitted to:
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Clarify an ambiguity;
Prove a ______________________ of trade or course of dealing;
Show ________________, duress, mistake, or illegal purpose; or
Show whether consideration has or has not been paid.
CHAPTER 12: REVIEW OF CHAPTERS 10–11: TANGIBLE EVIDENCE
A. Authentication
• Does not mean that the court must find that the document or thing is authentic.
• Court simply must find that there is evidence sufficient to support a finding that it is what the
party claims.
• Ways to authenticate:
o _____________________________________
o Testimony of a witness—often coupled with distinctive features
o Reply letter doctrine
o Chain of custody
o Ancient documents
o _____________________________________ verification
o Self-authenticating documents
B. Best Evidence Rule
• Relates to proving the ____________________ of documents
• If the contents are at issue, we want to see the actual document, not witness testimony about it
• Duplicates are fine, unless there is a reason to require the original.
• ______________________________ are appropriate if the originals are too voluminous.
• If the document is lost or missing through no fault of the proponent, then a witness can testify
as to the contents of the document.
• Courts will allow other evidence of the contents of a document on a _______________________
matter.
Example 38: A witness says, “I was reading the newspaper about how the
Yankees beat the Red Sox, and all of a sudden I looked up and there was a giant
car accident.” The witness has described the contents of a document—the
newspaper—but that is collateral. The case is about a car accident.
CHAPTER 13: PRIVILEGES (PART 1)
A. General Principles
• FRE—no specific, codified privilege provisions
• Federal courts are instructed to:
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o Defer to general principles of federal common law when it comes to most privileges; and
o When deciding state law issues when sitting in diversity jurisdiction, apply
_____________________ law regarding privileges.
B. Attorney-Client Privilege
1. Rule
o Protects a ____________________________ communication between a client and a lawyer
if the communication was for purposes of securing _________________________________
o Neither the lawyer nor the client can be forced to testify about the communication.
2. Confidential
o Client must have made reasonable efforts to keep the communication confidential
o Communications made in the presence of unnecessary ______________________________
will not be privileged.
o Presence of persons necessary to the communication (e.g., a translator or the lawyer’s
assistant or agent) will not undercut the privilege
o An unknown secret eavesdropper _____________________________ destroy the privilege.
3. Communication
o Only the communication is privileged; not underlying _________________ or evidence that
the client has or knows
Example 39: If the client was involved in some kind of civil fraud and tells a
lawyer, “I was involved in this business transaction that may have been
fraudulent and here is what we did. Am I in legal trouble?” This
communication is privileged. If the client was later subpoenaed to testify about
his conduct, he could not claim the privilege saying that he spoke to his lawyer
about what happened. He could still be asked about what happened; not
asking him to testify about the conversation with the lawyer, which would be
privileged. The underlying facts are not protected.
o Does not protect pre-existing ______________________________
o Must have been made for purposes of securing ____________________________________
4. Who Holds the Privilege?
o The ___________________ holds the privilege and has the right to decide whether to
disclose the communication (i.e., waive the privilege).
o The attorney must _____________________ the privilege by refusing to talk about such
confidential communications.
5. Waiver
o Failure to ____________________ the privilege in a timely manner
o ______________________________ disclosure of the information
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o Express waiver, even by contract
o Failure to take precautions (i.e., careless conduct) on the part of the lawyer
6. Corporate Client
o Issue: who is the client?
o Some courts—the “control group”
People with sufficient power to control the conduct of the corporation
E.g., CEO, board of directors
o Federal courts—the focus should be on the nature of the communication
A communication made by an employee about matters within the _______________ of
employment for purposes of seeking legal advice is _____________________________,
even if the employee is not a member of the “control group.”
7. Exceptions to the Privilege
o Future _______________ or _______________
If a client communicates to a lawyer for purposes of getting help with what the client
________________ or __________________________________ is a crime or fraud, the
communication is not privileged.
o ________________________ between the lawyer and the client
8. Work-Product Doctrine
o Documents prepared by a lawyer in ______________________________________________
______________________________
o Such documents may not be privileged, but will be protected
o Can obtain some types of work product from the opposing party if:
The party can demonstrate a ________________________________________________
for the information; and
Show that it cannot otherwise be obtained without ______________________________
______________________________
Example 40: The opposing party already interviewed a witness. By the time
you take the case, that witness has died.
o Work product that cannot be obtained—_____________________ impression work product
(core work product)
Reveals the attorney’s trial tactics, conclusions, theories of the case, etc.
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CHAPTER 14: PRIVILEGES (PART 2)
A. Physician-Patient Privilege
• Not recognized under federal law, but recognized by many states
• Statements made by a patient to a doctor for the purpose of obtaining ____________________
_________________________________
• Exceptions—privilege does not apply if:
o The information was for reasons other than treatment;
o The communication was made for some ______________________________ purpose;
o A ________________________ exists between the doctor and patient; or
o The patient agreed to waive the privilege
B. Psychotherapist-Patient Privilege
• Recognized in federal courts and most jurisdictions
• Applies to confidential communications between a patient and a psychiatrist, psychologist, or
licensed social worker for the purpose of treatment
• Exceptions—does not apply if the communication was:
o The result of a court-ordered _______________; or
o Taken as part of a ___________________________________ proceeding
C. Fifth Amendment Protection against Self-incrimination
• Prevents a witness from being required to give incriminating testimony against himself
• Applies only to people (not ______________________________________)
• Applies only to current statements (not prior statements)
• Does not apply to blood samples, voice samples, breathalyzer, etc.
• If no risk of criminal trouble, there is no privilege
o State can ensure no risk through immunity.
D. Spousal Privileges
1. Confidential Marital Communications
o Protects communications made between spouses in confidence in reliance on the sanctity of
marriage
o Held by _______________ spouses
Spouse can refuse to reveal confidential communications
Spouse can also prevent the other from revealing the communications
o Survives _______________ marriage
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2. Spousal Immunity
o Gives a spouse the right to refuse to testify in a __________________________ case against
the other spouse
o Applies to currently married spouses
o Covers testimony about anything, whether before or during marriage, but only applies while
married to the person
Exam Tip 4: Remember that under the federal system, the witness spouse
holds the privilege; the defendant cannot prevent the spouse from waiving
their privilege if they choose to testify against their spouse.
3. Exceptions
o Neither of the spousal privileges apply when:
One spouse is _________________ the other; or
When one spouse is charged with a _______________ against the other spouse or the
children of either of them.
CHAPTER 15: PUBLIC POLICY EXCLUSIONS
A. Liability Insurance
• Evidence that a person was or was not insured against liability is not admissible to prove
____________________________________ or wrongdoing.
• Except—when evidence of insurance coverage is relevant for some other purpose
o E.g., might be relevant to show _____________________
B. Subsequent Remedial Measures
• Evidence of repairs or changes made _______________ an accident is not admissible to prove
_____________________________________, culpable conduct, defective product or design, or
an inadequate warning.
Example 41: Someone slips on ice on your front walk. The next day, you go out
and apply a non-slip substance to the walk. Later, the person sues you for
slipping. The person cannot present evidence that you took remedial measures
after the accident.
• Except—when evidence of subsequent remedial measures is relevant for some other purpose
o E.g., ownership, control, feasibility
C. Settlement Offers or Negotiations
• A settlement offer made by any party is not admissible to prove the validity or the amount of a
__________________________ claim.
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Editorial Note 4: This rule applies to settlement offers AND conduct or
statements made during settlement negotiations.
• Cannot be used as a prior inconsistent statement to impeach
• Except—may be admissible if it serves another purpose, such as proving bias
• Cannot be unilaterally waived by either party
D. Offers to Pay Medical Expenses
• Not admissible to prove liability for ______________________________
• Statements made or conduct accompanying the offer may be admissible.
E. Plea Negotiations
• Not admissible in a civil or criminal case
• Includes: withdrawn guilty pleas, nolo contendere pleas, offers to plead guilty, and statements
made while negotiating a plea
F. Past Sexual Conduct
1. Victim’s conduct (Rape Shield Laws)
In general, evidence of a victim’s past sexual behavior or sexual predisposition ______________
admissible in a criminal proceeding involving _________________________________________.
a. Exceptions in a criminal case
Evidence of a victim's past sexual conduct is admissible to:
• Show that the defendant was or was not the source of ________________________
evidence, such as semen or bruises; or
• Show the victim’s past sexual conduct with the defendant to show ______________
May be admissible in certain circumstances when exclusion would be too unfair to the
defendant (exclusion would be unconstitutional)
b. Exceptions in civil cases
Evidence of the victim's past sexual conduct or predisposition is admissible only if its
probative value _________________________________________________ the danger
of harm to the victim and unfair prejudice to any party.
Evidence of reputation is admissible only if the _____________________ brings it up.
2. Defendant’s Conduct (FRE 413–415)
In a criminal or civil case in which a defendant is accused of committing an act of sexual assault
(and the like) or child molestation, evidence that the defendant committed any other sexual
assault or child molestation is admissible to prove any relevant matter.
Note 8: These rules allow admission of prior bad acts in order to make a
propensity argument, which is contrary to the general character evidence rules.
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CHAPTER 16: REVIEW OF CHAPTERS 13–15: PRIVILEGES AND PUBLIC POLICY EXCLUSIONS
A. Privileges
• Attorney-client privilege—protects a confidential communication between a client and a lawyer
for purposes of securing legal advice
o ______________________ holds the privilege
o Corporate client—federal courts: the focus should be on the context of the communication
o Exceptions:
Future _______________ or _______________
Disputes between an attorney and client
o Work-product doctrine—protects material prepared by an attorney in anticipation of
litigation
May obtain if a substantial need and cannot obtain it without undue hardship
_____________________ impression work product cannot be obtained.
• Physician-patient privilege—recognized in some states, but not the federal courts
o Protects communications made by a patient to a doctor for purposes of ________________
______________________________
• Psychotherapist-patient privilege—recognized in federal courts
o Protects confidential communications made with a psychotherapist, psychologist, or
licensed social worker for the purposes of seeking mental health support
• Fifth Amendment privilege against self-incrimination—prevents a person from having to testify
against himself in a criminal case
• Spousal privileges
o Confidential communications made in reliance on the sanctity of marriage
Held by both spouses (can refuse and can prevent other spouse)
Survives the marriage
o Spousal immunity—spouse cannot be forced to testify against other spouse in a
______________________________ case
Held by the ________________________ spouse
o Neither privilege applies if one spouse is suing the other or one spouse is charged with a
crime against the other spouse or either of their children
B. Public Policy Exclusions
• Liability insurance—cannot be admitted to prove that a person was negligent or liable for
wrongdoing
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• Subsequent remedial measures—cannot be admitted to prove negligence or that a product was
defective
• Settlement offers and statements made during settlement negotiations—cannot be admitted
to show the __________________________ or amount of a disputed claim
• Offers to pay medical expenses or the payment of medical expenses—cannot be admitted if
offered to prove liability for an injury
• Statements made in an effort to reach a plea bargain—inadmissible
• Rape Shield Laws—generally prohibit defendants from introducing the victim’s past sexual
conduct or alleged predisposition
o Criminal case—victim’s past sexual conduct may only be admitted when:
Necessary to explain particular ___________________________ evidence;
Offered to show consent—evidence of past sexual conduct with the defendant; or
It would be so ____________________ to prevent the defendant from introducing such
evidence that it would be unconstitutional.
o Civil case—evidence of the victim’s past sexual conduct or predisposition is only admissible
if the court finds the probative value _____________________________________________
_______________________ the risk to the victim or others.
• Defendant’s past sexual conduct (FRE 413-415)—admissible for any relevant purpose, including
propensity
CHAPTER 17: WHAT IS HEARSAY
A. Definition
• An ________________________________ statement offered to prove the _______________ of
the matter asserted
1. Out-of-Court Statement
o Spoken or ______________________________
o The person who made the out-of-court statement is the ____________________________.
o Statement can also be assertive nonverbal conduct (e.g., pointing).
Example 42: A witness is asked at trial, “Who committed the crime?” The
witness responds, “I don’t know exactly, but when I asked my brother who
committed the crime, he pointed at Smith, the defendant.” The witness is
describing an out-of-court, nonverbal statement, that is intended as an
assertion of who committed the crime.
2. Offered to Prove the Truth of the Matter Asserted
o When the declarant is acting like a _____________________, the hearsay rule is implicated.
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o The declarant and the witness might be the same person; the out-of-court statement could
still be hearsay
o If the statement is used for some other purpose (other than the truth of the matter
asserted), it is not hearsay.
Example 43: Someone was trapped in a burning car following a car accident.
One question was whether the person was killed on impact or whether he
survived and burned to death. There was evidence that the trapped person was
yelling, and yelled, “Tell my Mom I love her.” This is not hearsay because it is
not being offered to prove the truth of the matter asserted. It is being offered
to show he was still alive.
Example 44: But consider if the trapped person yelled, “I’m alive. I survived
the impact!” This is also not hearsay; it coincidentally proves what it asserts (he
was still alive).
B. Common Non-Hearsay Uses
1. Verbal Acts or Legally Operative Facts
The statement is offered to prove that the statement was made (verbal conduct)
Example 45: A defendant is on trial for extortion. There is evidence that the
defendant, over the phone, said, “You better do what I say or I’m going to hurt
you.” The statement is conduct.
2. Effect on the ______________________________
A statement offered to show the effect on the person who heard it
Example 46: There is a question about whether an insurance company
received notice that a ship sank. Evidence of a letter sent to the insurance
company that stated the ship sank would be nonhearsay. It is not being offered
to prove the ship sank; rather, it is being offered to prove the insurance
company had notice.
3. State of Mind
o A statement offered as circumstantial evidence of the declarant’s _________________ state
Example 47: A person says, “I am King Henry the VIII.” The statement may be
introduced to show the person is not of sound mind.
o Circumstantial evidence can be used to show knowledge.
Example 48: There is a question about whether someone spoke French.
Evidence of that person making a speech in French would be admissible to prove
that the person spoke French. It doesn’t matter what the speech was about; the
speech is not being offered for its truth.
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Exam Tip 5: Stop to determine whether the statement meets the definition of
hearsay: an out-of-court statement being used to prove the truth of the matter
asserted.
C. Multiple Hearsay
• Be aware of hearsay within hearsay (double or multiple hearsay)
• If there are multiple levels of hearsay, you will need an exception or exclusion for each level of
hearsay for the statement to be admissible.
Example 49: A witness is going to read a letter from the witness’s brother in
court. The letter says, “Dear brother, yesterday I was talking to our beloved
mother and she told me that the red car was speeding.” The letter is hearsay
and the mother’s statement is hearsay. There would have to be a hearsay
exception for both.
CHAPTER 18: WHAT IS NOT HEARSAY
A. In General
• Many statements that meet the definition of hearsay will be admissible under an exception.
• The first two categories (discussed in this chapter) are actually exclusions from the definition of
hearsay—they meet the definition of hearsay but have been excluded from the rule.
B. Certain Prior Statements of Testifying Witnesses
• The declarant must testify as a witness and be subject to cross-examination for these exclusions
to apply to their earlier statements.
1. Prior ______________________________ Statements
o Must have been made under _______________ at a trial, hearing, or deposition
Note 9: Any prior inconsistent statement can be used to impeach
(impeachment is a non-hearsay purpose).
o Only prior inconsistent statements made under oath at a trial, hearing, or deposition are
admissible as substantive evidence.
Example 50: The witness on the stand at trial says, “The light was red.” In the
past, the witness told his mother that the light was green. That statement can
be used to cast doubt on the witness’s credibility (i.e., impeach), but it cannot
be used to prove the light was green.
Example 51: If, however, the witness on the stand says, “The light was red,”
and under oath at a deposition or prior proceeding said the light was green,
then the statement can be used to cast doubt on the witness’s credibility AND as
actual proof that the light was green.
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2. Prior ______________________________ Statements
o Can be used to rehabilitate a witness when accused of recent fabrication or improper
motive
o Can also be used as proof of the truth of the matter asserted (substantive evidence)
3. Prior Statements of _____________________________________________
o A previous out-of-court identification of a person (after perceiving that person) is
admissible.
o Classic example: ___________________ at a police station
o Remember: requires that the declarant ____________________ as a witness and be subject
to cross-examination
Does not apply if the witness died (or is otherwise unavailable at trial)
C. Admissions of a Party Opponent
1. General Rule
o If a statement that is being introduced against a party is the party’s own prior statement,
then it is _____________________________________________.
o Applies to anything a party said
Editorial Note 5: This type of statement must be offered by the opposing party.
A party cannot introduce its own hearsay statements using this exclusion.
2. Adoptive Admissions
o A statement made by someone else, which is then expressly or impliedly adopted
Example 52: Someone asks you, “Did you rob that bank?” You reply, “Yes,
indeed I did.” This entire exchange is admissible because the person’s
statement (technically hearsay) is adopted or incorporated into your statement.
You expressed agreement with the person’s question (“Yes, I did rob that bank”),
though you never directly said, “I robbed a bank.”
o Can sometimes adopt a statement by _______________—Requirements:
The party heard the statement and ____________________________________ it;
The party had the ability to ______________________; and
A reasonable person similarly situated would have denied the statement.
3. Vicarious Admissions
o Statements made by persons authorized to speak on a party’s behalf—speaking agents (e.g.,
PR reps, lawyers)
o Statements made by agents or employees if made within the ____________ of employment
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4. Co-conspirators
Statements made by co-conspirators during and _______________________________________
of a conspiracy are admissible against other co-conspirators.
5. Preliminary Questions
o In deciding whether there was a conspiracy or an agency relationship, the court cannot base
its finding solely on the contents of the statement itself.
o Pure “boot-strapping” is not permitted; there must be some other evidence to support the
finding.
CHAPTER 19: HEARSAY EXCEPTIONS (PART 1)—DECLARANT UNAVAILABLE
Threshold requirement—must show the declarant is _______________________________ to testify as
a witness
A. Unavailable Declarant
• “Unavailable” if the declarant:
o Is exempted from testifying on grounds of ______________________________;
o _______________________ to testify;
o Lacks ________________________ of the subject matter;
o Is dead or too ill; or
o Is absent and cannot be subpoenaed or otherwise made available
• Not considered unavailable if a party wrongfully renders the declarant unavailable for the
purpose of preventing testimony
• Unavailability alone does not make a declarant’s out-of-court statement admissible.
B. Exceptions
1. Former Testimony
o Given by an unavailable witness ______________________________ at a prior hearing or
deposition
o Admissible in a subsequent trial if the party against whom the testimony is being offered
had an ___________________________________ and similar _______________ to develop
the testimony by direct or cross-examination at the prior trial, deposition, or hearing
Example 53: A witness testifies at a trial and is cross-examined by the party.
Later, that trial is overturned, and the court orders a new trial. The witness has
died since the first trial. The opposing party can introduce the witness’s former
testimony because it was under oath at a trial and the party already had an
opportunity and similar motive to develop the testimony.
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2. Dying Declarations
o Requirements:
Individual believes she is dying;
Individual believes death is ______________________________; and
Statement relates to the __________________ or circumstances of death.
o Admissible in a ______________________________ case or a _______________ case
o The declarant does not actually have to die
o Remember, the declarant must be unavailable in some way
3. Statements Against Interest
o At the time it was made, the statement was against the declarant’s pecuniary, proprietary,
civil, or penal interest, such that a ______________________________ person would not
have made the statement unless it were _______________
o Exonerating statements:
Example 54: A defendant is on trial for a crime. The defendant brings in a
witness who testifies that his friend Danny (the declarant) told the witness that
he committed the crime, which proves that the defendant did not.
Statements that would subject a declarant to _________________________ liability are
not admissible unless corroborating circumstances clearly indicate the trustworthiness
of the statement.
Note 10: Do not confuse with party admissions. There is no “against interest”
requirement in the party admissions doctrine and the statement against
interest exception is not limited to parties.
4. Statements of Personal or Family History
Statements concerning the unavailable declarant’s own birth, adoption, marriage, familial
relationship, etc. are admissible under this exception.
5. Forfeiture by Misconduct (Declarant Unavailable Due to Party’s Wrongdoing)
o If a party engages in wrongdoing for the purpose of making the declarant unavailable to
testify, and renders the declarant unavailable, then:
The party cannot claim the declarant is unavailable; and
The door is open to use anything the declarant said against the party.
CHAPTER 20: HEARSAY EXCEPTIONS (PART 2)—DECLARANT’S AVAILABILITY IMMATERIAL
These exceptions do NOT require that the declarant be unavailable.
Exam Tip 6: Steps for a hearsay problem:
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1. Determine whether the statement is hearsay by definition.
- Look for an ______________________________ statement.
- Determine whether it is being used for the __________________________
___________________________________________.
2. See whether it falls within the definition of non-hearsay.
3. Determine whether the declarant is ______________________________ in
order to use that set of hearsay exceptions.
4. See whether the remaining exceptions might allow admission of the hearsay
statement.
A. Present Sense Impression
• Statement made _______________ the declarant was ______________________________ the
event (or immediately thereafter)
• Describes or explains the event
Example 55: A witness is asked, “What happened in the car accident? Did you
see it?” The witness says, “I did not, but my brother was watching the accident
unfold while I spoke to him on my cellphone. While he watched the accident, he
said, ‘Oh my goodness, bro! This car was going really fast, ran a red light, and
just smashed into the bank.”
B. Excited Utterance
• Statement relating to a ______________________ event or condition while the declarant is still
under the ________________ of excitement caused by the event or condition
Example 56: A person comes running out of a bank that was just robbed and
says, “Oh my goodness! I can’t believe it. He came in with a gun and I thought
he was going to shoot me! He was wearing a green shirt.”
C. State of Mind (mental, emotional, or physical condition)
• Statement of a declarant’s _______________________________ physical, mental, or emotional
condition is admissible to prove the existence of that condition.
• A statement of _______________ can be used to prove action in _________________________
with that intent.
Example 57: On Tuesday, a person said, “I intend to go to Cleveland
tomorrow.” The statement can be used not only to prove the person’s intent to
go to Cleveland, but also that the person actually went to Cleveland on
Wednesday.
D. Statements Made for Purposes of Medical Diagnosis or Treatment
• Describe a declarant’s medical history or past or present symptoms, or even the _____________
of an injury, if pertinent to __________________________________ or diagnosis
36 | © 2021 Themis Bar Review, LLC | MBE Evidence
• Need not be made directly to the doctor
Editorial Note 6: The statement need not necessarily be made by the patient.
E. Past Recollection Recorded
Note 11: Recall that when a witness cannot remember something while
testifying, you can refresh the witness’s recollection. This can be done by
showing them a document or item (or by many other methods).
Example 58: You call the grocery store manager who was working the night of
a slip and fall. You ask how recently the floor had been waxed. The manager
cannot remember because it occurred a year and a half ago. You show the
manager his wax log to refresh his memory, but he still cannot recall exactly
when the floor had been waxed. That information is important to your case,
but the wax log itself is hearsay.
• When a witness has inadequate memory to testify about a matter for which a record exists, the
witness may read the record to the jury if:
o The record concerns a matter about which the witness once had knowledge;
o The record was prepared or adopted by the witness when the matter was ______________;
o The record accurately reflects the witness’s knowledge; and
o The witness testifies he has ___________________________________ memory of the event
to testify fully and accurately (even after consulting the writing while on the stand).
• The witness may read it to the jury, but it is not provided to the jury (not introduced into
evidence).
• The ______________________________ may introduce it to the jury.
CHAPTER 21: HEARSAY EXCEPTIONS (PART 3)—DECLARANT’S AVAILABILITY IMMATERIAL (CONT’D)
A. Business Records
• Any record or writing of an act or event made in the course of a __________________________
conducted business activity
• Admissible if the record was made:
o At or near the _______________ of the event it records;
o By a person with ______________________________ of the event and under a duty to
report it (or transmitted by such a person); and
o As part of the ____________________________ practice of the business to make that kind
of record
• Medical records are often included as business records (only to the extent that entries relate to
diagnosis or treatment).
MBE Evidence | © 2021 Themis Bar Review, LLC | 37
• Records prepared in anticipation of ________________________________ are not admissible
as business records.
• Courts have discretion to exclude business records if the source of information or the method or
circumstances indicate a lack of _____________________________________________.
B. Public Records
• Certain records of public ______________________________ and administrators (e.g., fire
department, health department, public utilities, etc.)
• May be excluded if the circumstances indicate a lack of _________________________________
• There are three sorts of things which may be admissible if set forth in a public record:
o ______________________________;
o _____________________________________________; and
o _____________________________________________
• Law enforcement—police reports being used against criminal defendants
o Can only introduce the activities; not what was observed or concluded
o Rationale—the officer should actually testify and be subject to cross-examination
o Police report may still come in under the recorded recollection exception (officer cannot
remember).
C. Learned Treatises (scientific, historical, or medical)
• May be used to ________________________ expert witnesses and as substantive evidence
• May be used as substantive evidence once it is established as a reliable authority, an expert
relied on it, or it was used to cross-examine an expert
D. Judgment of Previous Conviction
• Admissible to prove any fact that was ______________________________ to the judgment
E. Other Exceptions
• Records of vital statistics
• Records of religious organizations
• Marriage and baptismal certificates, and other family records
• Statements in ancient documents
• Market reports and commercial publications
F. Reputation
• There is a hearsay exception for the reputation or character of a person.
• Available in the narrow circumstances when reputation/character evidence is admissible
38 | © 2021 Themis Bar Review, LLC | MBE Evidence
CHAPTER 22: REVIEW OF CHAPTERS 17–21: HEARSAY
A. What is Hearsay
• Definition—_____________________________ statement being used to prove the
___________ of the matter asserted
o Declarant is being treated like a witness (source of information)
• Other uses that are not hearsay:
o ______________________________ (e.g., agreeing to a contract)
o Effect on the recipient (e.g., to prove notice or duress)
o Declarant’s mental state
B. What is Not Hearsay
• Prior ________________________________statements—if made under _______________ at a
trial, hearing, or deposition
• Prior ______________________________ statements
• Prior statements of _____________________________________
• Admissions of a party ______________________________
o Need not be a formal admission or be against interest
o Adoptive admissions
o Vicarious admissions
o Co-conspirators—during and in furtherance of the conspiracy
C. Exceptions When Declarant is Unavailable
• Unavailable witness:
o Exempt on grounds of privilege
o _____________________ to testify
o Lack memory
o Death or illness
o Absent and cannot be subpoenaed
• Exceptions that require a showing of unavailability:
o __________________ testimony
Given at an earlier trial, hearing, or deposition
Person against whom the testimony is offered had an opportunity and similar motive to
develop testimony by cross-examination
o ___________________ declaration
o Statements against ______________________________
o Statement of personal or family history
o Statements introduced against a party that wrongfully caused the declarant’s unavailability
MBE Evidence | © 2021 Themis Bar Review, LLC | 39
D. Exceptions When Declarant’s Availability Is Immaterial
o Present _____________________________________________
o Excited utterance
o State of mind
Includes intent—can be used to prove action in conformity
o Statements for the purposes of medical diagnosis or treatment
Statements about the cause of an injury may be admitted if reasonably pertinent to
diagnosis or treatment.
o Past ________________________________________ recorded
May be read to the jury; may be introduced into evidence by the opposing party
o Business records—in the course of a regularly conducted business activity
o ____________________ records
Activities, observations, and conclusions of public agencies and officials
Police reports—when used against criminal defendants, can only use activities
o Learned treatise
o Conviction
To prove someone was convicted of a crime (impeachment)
To prove the person actually committed the crime (requires a hearsay exception)
CHAPTER 23: CONSTITUTIONAL LIMITATIONS TO THE HEARSAY RULE
A. The Confrontation Clause (Sixth Amendment)
1. Face-to-Face Confrontation
o Criminal defendants have the right to be ______________________________ with the
witnesses against them.
o Witnesses must testify in front of the accused; strong preference for face-to-face
confrontation
o Sometimes particular accommodations are necessary to protect the interest of a vulnerable
witness, such as a child.
2. Out-of-Court Statements
o Basic principle of Crawford: out-of-court statements that are
___________________________________ give rise to Confrontation Clause problems.
o Testimonial—made with the primary purpose of ascertaining past criminal conduct
o Testimonial statements can only be admitted against a criminal defendant if:
The declarant is now _____________________________________________; and
40 | © 2021 Themis Bar Review, LLC | MBE Evidence
The defendant had a prior opportunity to ______________________________________
that declarant.
o Statements made for the purpose of getting help (emergency doctrine) should not be
considered testimonial.
Exam Tip 7: Think of the Confrontation Clause as an entirely separate hurdle
for prosecutors.
B. The Due Process Clause (Fourteenth Amendment)
• If evidence rules restrict a criminal defendant’s ability to mount a defense, the rules might
violate the Due Process Clause.
GOOD LUCK!
[END OF HANDOUT]
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EVIDENCE PROFESSOR SHERMAN J. CLARK (City of Oakland)

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Completed 21 June 2022

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