How to Conquer Evidence on the California Bar Exam
Here, we tell you how to conquer Evidence on the California Bar Exam. Evidence is regularly tested on the California Bar Exam. Like other subjects, it is somewhat predictable in terms of how it is tested.
Here, we tell you how to approach Evidence on the California Bar Exam, including some of the issues you should expect to see tested in Evidence questions.
Evidence on the California Bar Exam
1. First, know how Evidence is tested.
Evidence is regularly tested—about once a year on average. Unfortunately, the Examiners love to test California distinctions for Evidence questions. It is the only MBE subject where California distinctions are routinely tested. Note that California law is not always tested—about half the time California law is tested and about half the time the federal rules are tested.
Normally, a California essay question will specify whether you are to apply the Federal Rules of Evidence or California Law. If an essay question does not ask which law to apply on the exam, discuss the Federal Rules of Evidence.
Evidence sometimes appears as a crossover subject. It was combined with Professional Responsibility, Remedies, Civil Procedure, and Criminal Law & Procedure. So don’t be surprised if you see Evidence tested with another subject, though generally it is tested on its own.
2. Be aware of the highly tested issues.
Like every subject, the State Bar of California tests certain issues over and over again on Evidence questions. (We have a nice summary of these in our California Bar Exam One-Sheets, which you can see an overview of at the link here!)
Some of the “favorite” California Bar Exam issues in Evidence questions include:
- Relevancy: It is crucial that you start your introduction with an overview of logical versus legal relevance. Remember if you see a criminal case where you are asked to apply California law, also mention Prop. 8.
- Hearsay: Unsurprisingly, hearsay is extremely highly tested. It is also very nuanced and there are plenty of California distinctions. Some of the common hearsay rules that appear on the California Bar Exam are:
- Effect on a person who heard or read the statement (nonhearsay)
- Admission by a party opponent (nonhearsay under the FRE and a hearsay exception under the California Evidence Code (“CEC”))
- Statement against interest
- Present sense impression
- Contemporaneous statement (a CEC exception only)
- Excited utterance (called “spontaneous statement” under the CEC)
- Business records
- Authentication and the best evidence rule (called the “Secondary Evidence Rule” in California)
- Impeachment: Prior inconsistent statements have been tested the most, but specific instances of misconduct that are probative of truthfulness have also been tested. Convictions were tested (e.g., July 2010).
- Witness testimony: A witness must have knowledge of the matter she testifies about. A lay witness’s opinion is admissible if it is rationally based on the witness’s perception; helpful to determining a fact; and not based on scientific, technical, or other specialized knowledge.
3. Be aware of the highly tested distinctions.
We recommend looking at past essays or purchasing our California Bar Exam One-Sheets so you can see some of the highly tested Evidence distinctions. We notice that a lot of bar review courses spend a lot of time or energy on distinctions that are hardly ever tested on the California Bar Exam. There are so many California distinctions that you will drive yourself crazy if you try to commit them all to memory just for the bar exam. It is much better to start by memorizing the highly tested distinctions that are most likely to appear on your exam. Unsurprisingly, distinctions in hearsay rules are among the most highly tested. Below are some of them:
Statement against interest
The statement against interest hearsay exception has a California nuance that is occasionally tested. Under the federal rules, the elements are as follows:
- the declarant is unavailable;
- the statement is against the declarant’s pecuniary, proprietary, or penal interest;
- it was against the declarant’s interest when made; and
- the declarant knew it was against his interest when the statement was made.
Under the CEC, the statement is also admissible if it is against the declarant’s social interest because it risks making the declarant an object of hatred, ridicule, or social disgrace in the community. Thus, it is broader than the federal rules.
Present sense impression
Under the federal rules, the elements are: the declarant describes or explains an event while the event is occurring or immediately thereafter.
The CEC does not recognize this hearsay exception!
Instead, it frequently tests “contemporaneous statements” which is only recognized by the CEC (and not the federal rules). The elements of this are: the declarant makes a statement to explain, qualify, or make understandable his own conduct and the statement was made while the declarant is engaged in that conduct. This exception is much narrower than the federal rules.
Exclusions vs. exceptions
An admission of a party opponent is “nonhearsay” under the federal rules, but a hearsay exception under the CEC. The same goes for the prior inconsistent statement (which also has its own nuance, as under the CEC any inconsistent statement can be offered for its truth—it need not be under oath like the federal rules require).
The best way to get good at Evidence questions is to practice essays. This will help you become acquainted with how Evidence is routinely tested (including California distinctions). And, it will help you master the highly tested issues. Further, it will help you boost your MBE score as well!
Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Evidence essay questions:
- February 2017 essay question and student answer (see essay question #3 on the exam)
- February 2016 essay question and student answer (see essay question #5 on the exam)
Good luck studying for the California Bar Exam!
Go to the next topic, Chapter 12: Professional Responsibility.
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