Most important area on the bar exam. It appears on both the MBE & essay portion of the
bar exam. It is one of the highly tested areas on the bar exam along with Contracts &
c. FRE & common law distinctions (where the common law differs from the federal rules); don\u2019t need to know any state law on the state essay portion. Multistate tests on the federal rules \u2013 certain areas where the federal rules are silent, however.
Exclusion of Evidence
b. Article II: Judicial Notice
c. Article III: Presumptions
d. Article IV: Relevancy
h. Article VIII: Hearsay and Hearsay Exceptions
i. Article IX: Authentication and Identification
j. Article X: Contents of Writings
a. FRE 103: Where a trial court admits evidence, a timely and specific
objection to the admission of such evidence, must be made to preserve the
issue for appeal,unless plain error (prejudicial error) is involved \u2013 not
1. Where the trial court excludes evidence, no error on appeal
may be establishedunless an offer of proof was madeor
the reason was apparent from the context.
iv. Method of offer of proof:
1. Oral or written explanation
2. Question and answer format
1. Preliminary questions of admissibility of evidence are to be
determined by the trial judge as a matter of law, including
such areas as: qualification of witnesses, existence of a
a. Both affidavits and hearsay are allowed at this
point. Trial court is not bound by FRE in dealing
with preliminary questions of admissibility.
i. Where the relevancy of proffered evidence depends on the
existence of another fact, such evidence is admissible subject to
introduction of evidence sufficient to sustain a finding as to the
additional conditioned facts.
2. Example: Forgery case. The relevance of certain forged checks, purportedly written by D, would be conditioned upon evidence sufficient to sustain a finding as to the
g. FRE 105: Limited admissibility: upon request, the court may restrict the admissibility of evidence for allowing it for one party or for one purpose, but excluding it for another party or another purpose.
i. Ex: Evidence that a retailer received a letter from a customer
complaining about the sale of a defective sofa which caused injury
may be used to show notice or knowledge on the part of the D,
but it may not be used in proving negligence in a subsequent
a. Judicial notice is a substitute for proof whereby the court will accept
certain facts as true and thus dispense the need of formal presentation of
evidence. Court will do this based on accuracy and certainty. It\u2019s a
1. Thoseunderlying facts involved in a particular case which
aid the factfinder in its adjudication (i.e., facts of the case
within the territorial jurisdiction of the court;or, 2) it is capable of accurate and ready determination by resort to source that cannot be questioned.
3. Ex: A court in Los Angeles may take judicial notice of the fact that Wilshire Blvd. Runs east & west. But, a judge in Boston who has personal knowledge of this fact may not
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