Evidence on the Multistate Essay Exam: Highly Tested Topics and Tips
Here, we give you an overview of Evidence on the Multistate Essay Exam (MEE). We will reveal some of the highly tested topics and give you tips for approaching an Evidence MEE question.
Note that Evidence is regularly tested on the Multistate Essay Exam. It is tested, on average, about once a year.
In this post, we give you tips for approaching Evidence on the Multistate Essay Exam and we reveal some of the highly tested issues in Evidence questions.
Evidence on the Multistate Essay Exam
1. First, be aware of how Evidence is tested.
Evidence is tested, on average, about once a year. It is generally tested on its own (i.e., it is not combined with another subject). However, it has been tested with Criminal Procedure in recent years (hearsay issues have been combined with Miranda issues) (see frequency chart).
Evidence is somewhat predictable in terms of what is tested. However, it is a difficult subject to learn so even if it is predictable, it is not always easy to master MEE questions that test Evidence. Here, we give you some tips for writing answers to Multistate Essay Exam questions and how to approach Evidence generally so that it makes sense to you.
2. Be aware of the highly tested Evidence issues
The Examiners tend to test several of the same issues repeatedly in Evidence MEE questions. You can maximize your score by being aware of these highly tested issues. (We have a nice summary of these in our MEE One-Sheets if you want to see all of them and have them all in one place.)
Some of the highly tested Evidence Multistate Essay Exam issues include:
Hearsay is, by far, the most tested Multistate Essay Exam issue in Evidence questions. If you see hearsay tested on the MEE, remember to introduce it properly before analyzing exceptions. This way, you will connect the dots for the graders. Say that hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Then discuss exceptions. A few of the Examiners’ favorite exceptions to test are the following:
- Excited utterance: an excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused.”
- Present sense impression: a present sense impression is “a statement describing or explaining an event or condition made while or immediately after the declarant perceived it.”
- Statement for purpose of medical treatment or diagnosis: these statements must be made for and reasonably pertinent to medical diagnosis or treatment and describe medical history, past or present symptoms or sensations, their inception, or their general cause.
- Business records: A record of “acts, events, conditions, opinions, or diagnoses” is admissible if it is made “at or near the time” of the event recorded by a “person with knowledge” of the event. Further, the making of the record must occur in the course of a regularly conducted business activity, and it must be the regular practice of the business to make such a record.
We recommend you make a list of: (1) hearsay exclusions, (2) hearsay exceptions that require unavailability, and (3) hearsay exceptions where the declarant is unavailable. Then, state each of the rules’ elements and memorize the elements. You can even put them on different colored notecards (say, the first category on blue notecards, the second category on green notecards, and the third category on pink notecards). It is helpful to do this so you can keep the exceptions and exclusions straight and apply them properly when they are tested.
Impeachment is another topic that you will see tested frequently on the Multistate Essay Exam. We recommend you memorize the seven ways to impeach a witness. Also, remember why impeachment evidence is being admitted. It is being admitted to show that the jury should not believe the witness. Here, we don’t list each of the rules for the seven categories of impeachment but we remind you why the evidence is permitted to be offered.
- Prior inconsistent statement: Any prior inconsistent statement can be admitted to show that the jury should not believe the witness because the witness said something inconsistent in the past. (Note: extrinsic evidence is available in certain circumstances.)
- Bias: evidence of bias can be used to show that the jury should not believe the witness because they are biased (e.g., this would be used if a witness is testifying in favor of their mom!).
- Conviction of a crime: if a witness was convicted of a crime and if it meets the rules’ requirements, this could be admitted to show that the jury should not believe the witness because clearly they don’t take the law (and the oath they just took) that seriously.
- Prior bad acts: These must relate to truthfulness. Essentially, if the witness did something like cheat on the bar exam (even if there was no “conviction”) it can be used to show that the jury should not believe the witness.
- Reputation or opinion for untruthfulness: if the witness has a reputation for being untruthful or if, in someone’s opinion, the witness is untruthful, this can be used to show that the jury should not believe the witness.
- Sensory deficiencies: if the witness is testifying about what they saw, for example, and they cannot see, this can be used to impeach the witness.
- Contradiction: if the witness made a mistake in her testimony, or lied, she may be contradicted and this may be used to show that the jury should not believe her.
Again, you want to learn the nitty-gritty rules for each category of impeachment—including when extrinsic evidence can be offered, when the witness must be confronted on the stand, etc. But, always keep in mind why evidence is being offered as you learn the rules.
Other evidentiary issues
Other issues that are tested are character evidence, relevancy, policy exclusions, witness testimony, among others. It is important to know your Evidence outline well as you will need to have a solid understanding of Evidence for both the MEE and the Multistate Bar Exam (MBE)!
3. Make a visual map of why evidence is being offered
Often, we see students get confused and misapply rules because they apply a character evidence rule when impeachment is being tested. Or they apply a hearsay rule when a statement is not being offered for its truth.
If you struggle with this, reorganize your outline to ask “Why is evidence being offered?” and structure the topics around this. Then, when you get to a MEE question that asks you whether evidence can be admitted, think about why the party wants to admit the evidence and apply the appropriate rules.
If evidence is being offered:
- to prove a statement was said, there is no hearsay issue (thus, you should consider nonhearsay purposes for offering a statement—e.g., affect on reader or listener);
- to prove a statement is true, there is a hearsay issue;
- to show the jury that they should not believe a witness, there is an impeachment issue;
- to show a witness’ good or bad character, there is a character evidence issue;
- to show some other purpose (e.g., motive, intent, lack of mistake, identity, common scheme), there is a MIMIC issue.
Restructuring your outline can go a long way to helping you get a global understanding of Evidence. This makes it much easier to memorize and apply evidentiary rules.
4. Learn the basic introductions to use for each set of rules that are tested
Many of the concepts in Evidence should be defined or certain introductions should be stated before you discuss them in an essay question. For example:
- Hearsay: hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
- Relevancy: evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.
- Lay witness: a lay witness must have personal knowledge and her opinion must be rationally based on her perception, helpful to the trier of fact, and not based on scientific, technical, or specialized knowledge.
- Expert witness: an expert witness must be qualified by knowledge, skill, experience, training, or education and their testimony must be helpful to the trier of fact and based on sufficient facts or data.
- Impeachment: generally, any party may impeach a witness.
- Character evidence: character evidence generally is inadmissible to prove that a person acted in accordance with her character at the time the event occurred.
These are just some examples of how you may want to set up certain topics. Practicing past MEEs is a great way to see how the Examiners prefer specific topics to be introduced
Practice is critical if you want to master Evidence on the Multistate Essay Exam. As an added bonus, you may also see your MBE score improve if you practice writing answers to Evidence essays.
Here are some links to (free) Evidence Multistate Essay Exam questions and National Conference of Bar Examiners (NCBE) point sheets. (If you would like to purchase a book of Evidence MEE questions and NCBE point sheets, check out our MEE books here. You can also see some additional exams on the NCBE website for free here.)
- Feb 2013 MEE: hearsay
- Feb 2012 MEE: policy exclusions and other issues
- Feb 2011 MEE: impeachment and character evidence
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