Changes to Evidence on the MBE: Hearsay will be tested less! Without so much as an announcement, the National Conference of Bar Examiners (NCBE) suddenly changed the amount of scored questions that would appear on the MBE. Instead of the standard 190 scored questions (with ten “test” questions that remained unscored), they are now going to score only 175 of the 200 questions. Thus, in 2017, there will be 25 “test” questions.
Before, there were 27 questions on six of the seven MBE subjects (Evidence, Real Property, Torts, Criminal Law & Procedure, Constitutional Law, and Civil Procedure) and 28 questions on Contracts & Sales. In 2017, there will be 25 questions on each of the seven subjects.
Okay, great. So, that’s it? No!
The NCBE also changed the proportion of topics that would be tested on the Evidence portion of the MBE.
If you are unaware, the NCBE releases subject matter outlines where it states the percentage of topics that will be tested within each subject. (For example, in Torts, negligence makes up half the questions, and strict liability/products liability, intentional torts, and other torts make up the other half.)
The NCBE changed the breakdown of topics in the Evidence outline. While they did not announce any changes to the subject matter outline, upon a close reading, it appears that hearsay will be tested less on the Evidence portion of the exam. And relevancy and reasons for excluding relevant evidence will be tested a whole lot more!
Specifically, according to the National Conference of Bar Examiners, the topics tested within Evidence are as follows:
I. Presentation of Evidence
II. Relevancy and Reasons for Excluding Relevant Evidence
III. Privileges and Other Policy Exclusions
IV. Writings, Recordings, and Photographs
V. Hearsay and Circumstances of its admissibility
For the 2016 exams, the instructions said: “Approximately one-third of the Evidence questions on the MBE will be based on category I, one-third on category V, and one-third on the remaining categories—II, III, and IV.” (Click here to read the instructions and see the subject matter outline for the 2016 exam.)
For the 2017 MBE exams,, the instructions say, “Approximately one-quarter of the Evidence questions on the MBE will be based on category I, one-third on category II, one-quarter on category V, and the remainder on categories III and IV.” (Click here to read the instructions and see the subject matter outline for the 2017 exam.)
What does that really mean? We took those numbers and put them in a chart, below. This will show an approximate number of questions tested in each topic within Evidence. They are as follows:
What do these changes in Evidence mean for me?
First, you have to know relevancy.
You will notice that instead of approximately three questions on “Relevancy and Reasons for Excluding Relevant Evidence” there will now be closer to 8 questions!! So, you should pay extra attention to this when you study.
To put it another way, relevancy used to be worth only 1.5 percent of the total MBE socre (3/190 if you want to do the math). Now, it is worth 4.7 percent (8.33/175). That is a big increase!
Second, Hearsay and Presentation of Evidence will be tested less.
You can also see that Hearsay went from being one of the most highly-tested topics (with 9 questions) to 6.25 questions. This should be a relief for those who dislike hearsay (although not too much of a relief, since it is still worth 3.5% of your MBE score. Further, you will still have to know it for the essay portion of the bar exam. (It was just tested on the Multistate Essay Exam and is frequently tested on state essay exams!)
“Presentation of Evidence” also went from having 9 questions to having 6.25 questions.
(The categories in total went from being 9.47% of your total MBE score, to being 7.14% of your total MBE score.)
The other categories have not changed significantly. Category III went from containing three questions to containing 2.08 questions. Category IV did the same. This is a decrease from 1.57% to 1.18% of your total MBE score.
The fact that they are shaking up the topics that are tested on Evidence on the MBE should guide you in your studies. Extra attention should be paid to the category of “Relevancy and Reasons for Excluding Relevant Evidence.” And while “Presentation of Evidence” and “Hearsay and Circumstances of its Admissibility” should still be paid close attention to (as they will still make up 7.14% of your total exam score), they will not be worth as much as prior administrations on the MBE.
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