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Evidence MBE

Evidence MBE

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Published by browerma
Notes on the Evidence portion of the MBE
Notes on the Evidence portion of the MBE

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Published by: browerma on Jun 20, 2011
Copyright:Attribution Non-commercial


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A. Introduction

1. Approach for MBE Issues
a. Underline the Cause of Action (Civil or Criminal?)
b. Situate the Proceeding (where are we in the proceeding? Party or Witness? If a Witness,
what side?
c. Determine the Purpose for which the evidence is offered.
Character or Credibility? Substantive or impeachment?

2. 3 Main Substantive Areas
a. Character Evidence
b. Impeachment
c. Hearsay
3. Essay Tip First issue is always relevancy

B. The Federal Rules of Evidence

2.There are two ways rules come into being:
a. Codification of Rules from the common law
b. Rules passed by Congress Congress
3.The Federal Rules govern all civil and criminal trials and proceedings in federal courts, and also
include: Bankruptcy and admiralty Cases
4. Certain proceedings where the Rules do not apply include:
a. Preliminary Questions of act
b. Grand Jury Proceedings
c. Preliminary Hearings (except for hearsay exceptions)
d. Sentencing and Probation Hearings
e. Obtaining a Warrant
f. Stale Proceedings???

C. Rulings on Evidence (Rule 103) (OL I.C)
1. Sets forth the requirements for an Appellate Court to reverse a trial court’s decision. Where a
ruling _admits_____ evidence, a timely and specific objection must be made to preserve the issue
for appeal
If the answer has already been heard, then a motion to strike is required
a.Effect of a general objection (i.e., “I object”) if overruled – The issue is not preserved for appeal
2.If the evidence is excluded, where a ruling _excludes___ evidence, an offer of proof is required

i. Unless the substance of the evidence was apparent from the context


3.When dealing with an offer of Proof, it is made
outside the presence of the jury
a. Motions in Limine are pretrial rulings on the admissibility of evidence
b. If the error is not prejudicial to the outcome, then the harmless error rule applies
Error is harmless if the jury would have reached the same verdict even if the error did not
c. If no objection is made, the evidence will be admitted even if objectionable.
d. The only time a reversal will result from the admission of evidence despite an objection not
being raised is when: there is “plain error.” A serious mistake that affects the outcome of
the case.

D. Preliminary Facts (Rule 104(a) (OL I.D) Preliminary Questions of Admissibility shall be determined
by the court.
1. Preliminary facts: (CAP Rule)
1. Competency – Witness Qualifications
Is the lay witness qualified? Does he have proper knowledge? Is he helpful?
Does the expert witness have special expertise that makes him helpful?
Did the witness swear under oath?

2. Admissibility

Judge determines application of technical evidentiary rules such as whether or not a
hearsay exception applies

3. Privilege

Whether or not a privilege exists

Dying Declaration

a.The burden on the judge when determining admissibility of evidence:
(1)Hearings on admissibility held outside the presence of the jury
(2) Standard used: PotE (preponderance of the evidence)
(3) Decisions are final and binding on the jury
(4) A judge is not bound by the rules of evidence when determining preliminary facts except
with regard to privilege
2. Conditional relevancy: FRE 104(b)
Where admissibility of one item of evidence is conditioned on the relevancy of another item
of evidence, once that condition is met, the judge shall admit the evidence

E. Limited Admissibility (Rule 105) (OL I.E)
1. If evidence is admitted as to one party or for one purpose, but is inadmissible as to another party
or for another purpose, the court, upon request, shall restrict the evidence to its proper scope and
instruct the jury accordingly.



If a defendant is being impeached with his former convictions, we allow the jury to decide
whether it believes the defendant. The prior convictions are admissible to challenge defendant’s
credibility, but not as substantive evidence of defendant’s guilt. The jury is not allowed to use
those prior convictions to determine the defendant’s criminal disposition.

2. Counsel must request a limiting instruction.
3. Related area: An accused may decide to testify on a preliminary matter without waiving his 5th
Amendment privilege against self-incrimination as to other subsequent issues. Cross-examination
is then limited to the scope of the preliminary issues.


Remainder of or Related Writings or Recorded Statements (Rule 106) (OL I.F)

1. Rule of Completeness

a. If one party introduces a writing or recorded statement, or part thereof, the adverse party may
require the introduction at that time of any other part or any other writing that ought, in
complete fairness, to be considered contemporaneously with it.
(1) Purpose: To Prevent a party from misleading the jury about the content or writings or
recorded statements by someone taking something out of context
b. Caveat: Rule 106 N/A to conversations – only to writings Completeness rule will not apply
to conversations – only writings or recorded statements


Police reports: plaintiff sues defendant for personal injuries after a car accident. Plaintiff
offers officer’s testimony regarding his personal observation of skid marks to show defendant
was speeding. Defendant then wants to offer eyewitness statement to the police officer
recorded in the police report that “plaintiff was crossing a red light at the time” (to show
plaintiff was Contributorily Negligent). Defendant cites Rule 106 to admit the statement.
Result: Hearsay rule will trump the completeness doctrine

Prosecution offers defendant’s statement “I killed the victim.”
Defendant’s attorney may now offer defendant’s later statement in the same confession, “I
killed the victim in self-defense.”
Result: Completeness rule would apply, statement would be admitted


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