Exam Breakdown

Part one, introduction. Hello, everyone, and welcome to our evidence review. Approximately 25 to 30 questions on the bar exam will be in the area of evidence, so you're really going to want to nail this one down to get the highest score you can. Within those tested questions, one-quarter will be on the presentation of evidence, about one-third will be on relevance and reasons for excluding relevant evidence, one-quarter on privileges and other reasons to exclude evidence, and the remainder on the last two categories, physical evidence and witness evidence, including hearsay and when it gets admitted.

Approaching the Question

Evidence can seem complicated, but it really boils down to one question, is this evidence going to be permitted in court? In that sense, you have almost a 50/50 shot, yes or no. Although, of course, you're going to have to justify your answer either way, and often the MBE has two yeses and two noes, and you'll have to state the correct justification. Regardless, it's very likely you'll be able to eliminate one to three possible answers right off the bat if you understand the rules.

Issue Spot

On the bar exam, you'll want to take the following approach to evidence questions. First, you should spot the issue or figure out what the fact pattern is probably asking about. For example, is this evidence involving a writing or is it character evidence? Is it hearsay or does it involve an expert? Identify what evidence the questioners are asking about.

Identify Relevance

Second, you should identify whether the evidence is relevant to the case. That is, does it help prove a fact at issue in the case?

Identify Purpose of the Evidence

Third, identify the purpose of the evidence. Is it being used, for example, to impeach or rehabilitate a witness or to prove an element of the offense? The purpose often matters for its admissibility.

Identify the Applicable Rule

Fourth, identify the rule that allows in the evidence or keeps it out. Remember that you should also establish whether the evidence is authentic, and where the evidence is a witness statement, ensure that the person is competent to testify.

Determine Exclusions

Finally, even where a piece of evidence meets the requirement for all of the above, consider whether there are exclusions or reasons for keeping it out, such as courtroom management, public policy, a privilege, or a constitutional protection, such as the Sixth Amendment's Confrontation Clause.

Definition and Scope

First things first. Let's define what evidence is. Evidence is defined as any matter, verbal or physical, that can be used to support or refute the existence of a factual proposition. In general, there are four types of evidence, documents or actual papers, testimony, or the words that come out of a witness's mouth, tangible evidence, for example, a piece of clothing or the murder weapon, and demonstrations, for example, a reenactment of a crime.

The rules governing what is allowed in court come from the Federal Rules of Evidence, which were adopted in 1975. The rules have a "presumption of admissibility." That is, the rules favor the admission of evidence unless there's a good reason not to. For the most part, state rules mirror the federal rules. This review will cover exclusively the federal rules.

Any state exam prep will likely frame their review around how the state law differs from the federal rules. It's a good idea to have your federal rules down pat, so the differences stand out to you. Of course, the federal rules govern all trials and proceedings, both civil and criminal in federal courts, including bankruptcy, and admiralty cases and proceedings.

Inapplicability

There are some places that the rules do not apply, however, and the most common on the bar exam is probably in grand jury proceedings, but also in preliminary hearings, warrant requests, bail proceedings, and other preliminary matters. Keep those in mind as you read the questions on the exam. Because the federal rules are codes, not a common law doctrine, you should always feel free to go straight to the rules and the commentary, which are freely available online if you're looking for clarification or comments on the rules.

In case you're wondering, there's no need to know the actual rule number for the bar exam. I won't even say them here, but you'll want to know them once you start practicing law of course.