How to Approach an MEE Evidence Question

We're going to talk today about how to approach evidence questions on the MEE. This is going to build on the general introduction to the MEE, so if you haven't listened to that yet, pause me and go do that. I'll be waiting here patiently when you're done.

There are three main things we're going to talk about: first, what topics you can expect from an evidence MEE question; second, things you should think about in an evidence MEE question before you start writing; and third, things to think about as you're actually writing your answer to an MEE question.

First, what to expect. So I've gone through the evidence MEE questions going back to 2008, just to get a sense of what topics the bar examiners like to cover. So the number one topic for evidence questions is probably not going to surprise anyone. It is the rule against hearsay, including its exceptions.

Those rules come up nearly every time there's an evidence question on the MEE, and in particular, they love to test whether an out-of-court statement is admitted for the truth it asserts versus some other purpose. And, of course, they enjoy testing exceptions, especially the business record exception and the excited utterance and present sense impression exceptions, though plenty of other hearsay exceptions have also come up. So if you're feeling rusty on the hearsay rule, that is a good place to invest some study time.

But what else? The next most popular topic areas are character evidence and impeachment, which are related to each other, and within those categories, the biggest subcategory is the general prohibition on character evidence. If you're not sure how that works, it's worth your time to study up on it, and you can check out our lecture to help.

Aside from those big areas of hearsay, character, and impeachment, the examiners have asked about a grab bag of evidence concepts over the years. And I'll mention one other, because it's something that you may not have spent a lot of time on in your evidence class but that has come up a few times on the MEE, and that's waiver of privilege. So be aware not only what the important privileges are, attorney-client, spousal, doctor-patient, but also that they are subject to waiver. And for reasons we can only speculate about, that's been a popular source for MEE questions.

So now that you've got a sense of what sort of evidence questions you might get on the MEE, what should you do when you see one? So let's talk about things to do before you even start writing. First, I suggest that you begin by glancing at the question prompts.

You don't have to start with that, but in my opinion, it is best practice to do so. The reason is that there's often really valuable clues in the prompts. If you glance at them before you read the fact pattern, you're only looking for information as to what the question is about, which begins with recognizing that it's an evidence question at all.

Remember, MEE questions are not labeled by subject matter. You're also looking for what kind of evidence question it is. Does the prompt say something about hearsay? That'll tell you to be on the lookout for out-of-court statements. Does it say something about a prior conviction? That'll tell you to be on the lookout for a witness who is being impeached with an old conviction, and so on and so forth. Keep this to a quick glance, under a minute.

Next thing to do is read the fact pattern, and there's a few things to keep in mind as you read. Number 1: evidence fact patterns can get complicated with lots of moving parts, and you need to wrap your mind around them as quickly as possible. So as you practice, you will develop a strategy for doing that your own way.

My suggestion is to keep close track of the characters. So any time a person or a company is mentioned, write them down. And write down a word or two if necessary to remind you of who they are. A lot of times the bar examiners will just use generic descriptions, like the man or the woman. Just write down those descriptions and treat them as if they were proper names.

Next thing to think about as you read, be on the lookout for a couple of things. First, out-of-court statements, which are often important because you'll need to analyze them as potential hearsay issues. And second, any information that speaks to a person's good or bad character, and that especially includes things a person did in the past that aren't directly involved in the facts of the case. Those are very often going to raise character issues.

Last thing as you read the fact pattern is to be on the lookout for wave-offs. These are places where the bar examiners tell you not to talk about a particular issue. It's like they're giving you blinders. For instance, the fact pattern might tell you that a criminal defendant didn't raise a constitutional challenge. In an evidence question, that'll usually mean that you are being waved off Confrontation Clause analysis, which is great. One fewer issue to worry about.

After you read the fact pattern, you will be back to the prompts. Read them again, even if you read them before. They will make more sense now that you know the facts. Make sure that you understand precisely what information, otherwise known as evidence, the prompt is about and what exactly you are being asked about it. It's super important to have that down before you even start trying to do the analysis.

At this point, you're almost ready to write, but one more thing. There are a lot of issue prompts in evidence questions, and if you're not sure what issue prompts are, double back to the general MEE intro lecture, which talks about that.

But the basic idea with an issue prompt is that you need to spot the issue yourself before you identify the relevant rule and apply it to the facts. The examiners aren't telling you what the issue is. To be sure, evidence prompts aren't always issue spotters. Sometimes the examiners will tell you what the issue is, and you just have to answer the question they ask about it. That's what the general MEE intro calls "yes, no, maybe" prompts.

So, for example, in an evidence question, you might be told that the defendant in a criminal case has objected to such and such evidence on the grounds that admitting it would violate the Confrontation Clause. The question for you is, would it? And you might answer that yes, no, or maybe. But more often than not, with evidence questions, you're not going to be told the specific issue, so you are going to have to spot it for yourself.

For that kind of prompt, we want to take a first stab at spotting the issues before we even start writing. We're not trying to analyze them yet. That'll come soon. We're just trying to get a rough sense of how many issues there are and what they are. With evidence questions, you can't assume it's one issue per prompt.

For example, let's say you've got three prompts. They say, 1. Is X admissible? 2. Is Y admissible? And 3. Is Z admissible? That doesn't mean that you have three issues. Maybe there's only one issue that affects the admissibility of X, but two issues for Y, and three for Z. You'd have six issues to talk about.

One reason you want to spot issues before you start writing is that it helps with time management. One of the worst things that can happen on an MEE question is running out of time before you get to all the prompts.

So my suggestion is that when you've finished your issue spotting, take the time you have left and divide it by the number of issues, and then spend about that amount of time per issue. That's not an iron rule. Not every issue is equally difficult or requires the same amount of time, but use that as a rough guide so that you don't get to the end of your 30 minutes and realize that you've run out of time.

So now we are ready to start writing. A few points to make here. First, lean on the CRAC structure from the general introduction. Using that means that you don't have to spend much time worrying about how to organize your answer. Organize with CRAC. There are a few minor variations on CRAC that come in really handy in evidence, so let's talk about those.

One is that anytime that you're talking about whether evidence is admissible, you should begin by talking about whether it's relevant. Relevance is almost never going to be the main issue, but only relevant evidence can be admissible. So addressing it is a way to pick up some easy points. That said, we don't need to have a whole CRAC for relevance. That would be overdoing it.

So, instead, do what I call a mini-CRAC, which is just the rule and the application. Let me give an example. Let's say that defendant is charged with murdering victim and at trial wants to introduce a diary entry by witness where witness says, "I killed victim." So, obviously, that's going to be a hearsay issue.

The question is going to turn on whether the diary entry is hearsay, and if so, whether there's an exception that applies, but before you get to hearsay, address why it's relevant. It can be just two sentences. They can both be in the same paragraph. The first sentence is the rule: evidence is relevant if it has any tendency to make a fact that matters in the case more or less likely.

In fact, you will be writing that sentence so frequently for evidence that I would advise you to just commit it to memory. You could tattoo it on your arm if that'll help and if the rules of your jurisdiction allow for that. But you can bet that as soon as you do that, they'll decide to change the definition of relevance in the federal rules, because that's just how things work when you get tattoos.

That's the first sentence. Second sentence is the application: the diary entry is relevant because if witness claims to have killed victim, that makes it less likely that defendant killed victim. And just like that, you've picked up some easy points and you can go on to do a full CRAC on the hearsay issue.

There's one other important CRAC variation that comes up in evidence questions. Sometimes after you've stated a rule and applied it, you find that you need another rule, and that can easily happen with hearsay evidence. Let's stick with the example we just used.

After we've dealt with relevance, we'll tell the grader the rule for hearsay: an out-of-court statement is hearsay if it is offered for the truth of what it asserts, and then we'll apply that. Certainly it seems that the defendant is offering witness's statement for the truth of what it asserts.

But, of course, we're not done because we need to consider exceptions. And the exception that jumps to mind here is for statements against interest, which means that we need to tell the grader about another rule, the rule for the hearsay exception for statements against interest, and apply that.

There are two basic ways to deal with that within the CRAC structure. One is to give both rules at the beginning and then apply them both. The other is to give the first rule and apply it and then give the second rule and apply that. So if the first rule is really simple to apply, I think it's fine to do both rules at once and then apply them together. But in evidence questions, both rules are often going to be complicated.

And when that happens, I suggest modifying CRAC into CRARAC, or C-R-A-R-A-C: conclusion, rule one, application one, rule two, application two, conclusion. So if you were doing our example as a CRARAC, it would be like this. Conclusion: the diary is admissible because it is a statement against the interest. New paragraph, rule one: hearsay is what we just said. New paragraph, A1: the diary's hearsay because, and you explain why.

Then you would do another new paragraph and you would have rule two: statements against interest are admissible when, then you'd explain that rule. Another new paragraph, application two: the diary's a statement against interest because, and you'd explain why that's the case. And then, finally, another new paragraph with another conclusion: therefore, the diary is admissible.

One last note about writing your essay. If you think a legal question is close, say so in your conclusions. The bar examiners don't revel in close legal questions the way that your law professors did, but they do include them from time to time.

And so it's perfectly fine to say that a question is close, and it's perfectly fine to say that the answer to a question is "maybe." Just like on law school exams, the reasoning is usually more important than the bottom-line answer.