How the MBE Approaches Evidence

Black-and-White

In real life, evidence law includes a lot of gray areas and requires a lot of close judgment calls. But since ambiguity doesn’t translate very well to a multiple-choice format, the MBE tests the more mechanical parts of the law.

The Rules Rule

The MBE sticks close to the text of the Federal Rules of Evidence, except in the area of privileges (which are largely creatures of common law). If you have a sound working knowledge of the Federal Rules, you’ll be prepared to tackle most of the evidence questions you might encounter.

Points of Emphasis

The MBE loves to test three areas of evidence:

  • Hearsay
  • Character evidence
  • Witness impeachment

Questions often ask whether a particular statement is hearsay, and if it is, whether an exception applies. In the “character evidence” realm, prior acts are especially popular. When you see a prior act on the MBE, remember to ask yourself if it’s being offered to prove character or for some other purpose (like one of the MIMIC factors). Finally, be prepared to decide if the Federal Rules allow a party to impeach a particular witness in the particular way your fact pattern describes.

How You Should Approach Evidence on the MBE

What Evidence, What Issue

When you see an evidence question, ask yourself two things.

First, what specific piece of evidence is the question asking about? Look to see if it’s witness testimony, a document, physical evidence, or something else. Since the rules often treat different kinds of evidence differently, it’s important to start by classifying the evidence you’ve been given.

Second, what aspect of evidence law is the question testing? Decide if the real issue involves hearsay exceptions or privileges or another corner of the rules. You can often identify the issue from the fact pattern, but sometimes it helps to glance through the answer choices—they’ll usually give it away.

Once you’ve answered these two questions, you’re ready to start your legal analysis.

Common Sense in a Pinch

You have a limited amount of time to prepare for the MBE. For the evidence portions, learn the Federal Rules as well as you can, but it’s probably not worthwhile to try to memorize every nuance of every rule. There are just too many details and permutations to account for them all in your review.

Fortunately, evidence rules incorporate common sense more often than many other areas of legal doctrine. Not all of the rules are rational or intuitive, of course. (Just look at impeachment by prior conviction!) But in most instances, when you see an arcane rule that you didn’t cover in class, you can fall back on reason as a reliable guide. Ask yourself which result makes sense, and that will frequently be the right answer.