At BarMD, we like to say that bar-exam training—and success—are twofold: one part practice + one part the right strategy. If you only practice and don’t adopt winning strategies, then success will be a reach. The same goes for the other direction: All tactics and no practice makes bar examinees unprepared for the real test.
The bottom line?
Be sure to pair these expert-level tactics with relentless practice. That’s how our faculty guides students on the road to passing the bar exam. As they say, practice makes perfect. And that goes for whether you’re sitting at your desk studying or training to attack your athletic goals!
Granted, Evidence MBE questions can be a tough nut to crack—especially since a quarter of the Evidence questions on the MBE are based on hearsay (the bane of many a bar taker’s existence). If you want to learn how to tackle other types of MBE questions, visit the rest of our blog and peruse our posts.
The following tips should help you determine whether a given piece of evidence is admissible or non-admissible. And keep up the regular MBE workouts!
Hearsay, You Say? Ask These 3 Questions
To decide whether a given piece of evidence is hearsay, take a moment to reflect on the multiple-choice questions’ options.
While you’re taking a step back, ask yourself the following three questions:
1. Is the piece of evidence a “statement?” If the evidence is anything other than assertive non-verbal conduct (e.g., a shake of the head) or a verbal assertion, then the evidence isn’t hearsay.
2. Was the statement made out of court? If the statement was made at the present proceeding, then the statement isn’t hearsay.
3. Is the statement being offered for the truth of the matter asserted? In other words, is it important the statement was said or that the statement is true? If the former is the case, then the statement isn’t hearsay.
Let’s say, for example, that the defendant is seeking to introduce the plaintiff’s out-of-court statement, “I am Abraham Lincoln.”
If the defendant is seeking to introduce the statement to establish that the plaintiff is insane, then the defendant cares only that the statement was said (i.e., that the plaintiff really claimed to be Abraham Lincoln), not that the statement was true (i.e., that the plaintiff really is Abraham Lincoln), and the statement isn’t hearsay.
Know the Methods & Means of Impeachment
There are various methods of impeaching a witness. However, extrinsic evidence isn’t always permitted.
When it comes to Evidence multiple-choice questions that test impeachment, it’s crucial to correctly match the method of impeachment with the means of proof, if you want to answer the question correctly.
Don’t Confuse Marital Privileges
The bar examiners like to exploit test takers’ confusion concerning spousal privileges. Be crystal-clear on the distinctions between Spousal Immunity and Confidential Marital Communications to avoid falling into their traps.
The Spousal Immunity privilege only applies to criminal cases. The witness-spouse holds the privilege, and the witness-spouse must still be married to the other spouse. The Spousal Immunity privilege covers information learned both before and during the marriage.
In contrast, the Confidential Marital Communications privilege applies in both criminal and civil cases. Both spouses hold the privilege. While the Confidential Marital Communications privilege survives the end of a marriage, it only covers statements made during the marriage.
If you’re curious, you can read more about Marital Privileges on the American Bar Association website.
Be Wary of the Best Evidence Rule
Many examinees jump straight to an answer choice that cites the Best Evidence Rule whenever the piece of evidence involved is a writing.
This is exactly what the bar examiners are hoping they’ll do.
In actuality, it’s more likely than not that the Best Evidence Rule does NOT apply.
The Best Evidence Rule applies ONLY if the witness is relying on the writing to testify (i.e., if the witness has independent knowledge) OR where the writing is merely collateral to the controversy. So, where a witness has independent knowledge or the writing is collateral to the controversy, the Best Evidence Rule is merely a distractor answer choice.
Defeat MBE Evidence Questions …and Every Topic
Which one of the MBE subjects is your greatest challenge?
If it’s not Evidence, explore the rest of our MBE posts on the BarMD blog to see the range of topics we’ve covered thus far.
And if you want to prepare yourself thoroughly for the MBE, then we have the perfect course for you, developed by our faculty: MBE DNA.
Inside that course, you’ll receive:
- Real MBE questions by topic (with topic-specific strategies)
- Hardcopy format flashcards
- Proven MBE rules developed using real MBE questions
- Revolutionary MBE journaling program—a BarMD exclusive we use in our Bar Courses
- 1 comprehensive online video lecture on how to approach MBE questions
- 7 rigorous online lectures that break down MBE questions from each subject, step-by-step
Pssst—are you taking an online Performance Test soon? Check out our course >