Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on Evidence MBE questions. You will see 25 scored Evidence MBE questions on the Multistate Bar Exam.
Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each “MBE tip of the day” post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
Do your best to answer this Evidence MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? Next, what is the rule and analysis? Finally, what is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
Evidence MBE Question
A defendant was on trial for abuse after a woman alleged that he abused her during the course of their relationship. The defendant claims his behavior has been misconstrued and does not rise to the level of abuse. The defendant alleges that the behavior was consensual. The prosecution wishes to call the woman’s adult daughter as a witness. The daughter is currently in college studying the behavior of victims of abuse with the intent of one day becoming a counselor. She does not have any degree or certification in the field. The daughter was living at home with her mother during the summer months in between two of her years of college. She wishes to testify regarding the specific actions exhibited by the defendant toward her mother during those months while the daughter was in the house. The defense objects to the testimony of the daughter.
Should the daughter be allowed to testify?
(A) Yes, because her studies give her superior knowledge as to how to evaluate abuse victims.
(B) Yes, because she is testifying as to her personal knowledge of the defendant’s behavior
(C) No, because she is considered a biased witness as the daughter of the woman.
(D) No, because she does not have the requisite qualifications to serve as an expert witness.
Subject:
Legal Issue:
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Answer to the Evidence MBE Question
Subject: Evidence
Legal Issue: Witness testimony
Legal Rule and Analysis: A lay witness’s opinion is admissible if it is rationally based on the witness’s perception/personal knowledge; helpful to determining a fact; and not based on scientific, technical, or other specialized knowledge. The fact that a witness is a family member of one of the parties will not automatically bar the witness from testifying. As long as the three requirements are met, the witness will be allowed to testify.
In this case, the daughter meets all three of the requirements in order to testify as to the behavior of the defendant while the daughter was present. We are told that she specifically wishes to testify as to behavior that occurred while she was around. Thus, the daughter had personal knowledge of what the defendant was doing. Second, this testimony would be helpful in determining a fact – namely what actions and interactions occurred between the defendant and the woman. Third, she is not testifying as to anything that requires any sort of specialized knowledge. She is not drawing any conclusions regarding whether her mother exhibits any of the characteristics of the abuse victims that she studies. She is merely testifying as to what she observed.
Conclusion: The daughter will be allowed to testify because she is a lay witness testifying to something she has personal knowledge of.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. The answer choice (B) is therefore correct. (A) is incorrect because the daughter is not testifying as to anything regarding the typical behavior of abuse victims. Thus, her qualifications are irrelevant. She is merely testifying as to what she observed, and therefore she is merely a lay witness. (C) is incorrect because the presence of some sort of bias does not automatically prohibit a witness from testifying. The defense is free to try to impeach the daughter by presenting evidence of the family relationship, but any potential bias is to be evaluated by the jury. They will decide how much weight to place on her testimony. (D) is incorrect because the daughter’s qualifications are irrelevant. She is seeking to testify solely to something she has witnessed and is not utilizing any sort of specialized skill or knowledge to reach a conclusion.
Whether being a student studying the behavior of abuse victims rises to the level of satisfactory qualifications for an expert witness has no bearing on her specific testimonial purpose. If she were seeking to testify as to whether the behavior of her mother matched that of a typical abuse victim, then we would need to evaluate her qualifications. But all she wants to testify to is the behavior of the defendant she witnessed during the summer. No qualifications are necessary for this.
Evidence MBE Tip: Don’t get distracted by facts that are there to mislead you! The examiners love trying to lead you in the wrong direction. This is by design, to test how well you really know the rules and when they should be applied. The more practice questions you do, the more likely you are to avoid falling into these traps. Take the rules and be straightforward in your application of them. Some of the answer choices might sound nice and have some relation to something mentioned in the fact pattern. But if you really think about it, they have no relevancy in helping you answer the question. Don’t make MBE questions harder than they need to be!
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: A lay witness’s testimony need only be based on personal knowledge, be helpful to determining a fact, and not be based on some form of specialized knowledge. If these requirements are met, then the witness can testify as to what they have observed.
MBE Tip: Don’t be distracted by facts that are there to mislead you!
