Note that we have posted several posts that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these several 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 post covers one highly-tested area of substantive law as well as an important MBE strategy.
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? What is the rule and analysis? 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 woman was walking across the street when she was struck by a vehicle traveling at a high rate of speed. As she was laying on the pavement dying, she told a bystander who was at her side, “I know I am dying. I want to tell you before I die that I saw my neighbor steal the Madonna painting from the museum.” The woman then died.
In a civil suit by the museum against the neighbor for conversion, is the woman’s statement to the bystander admissible?
(A) Yes, as an excited utterance.
(B) Yes, as a dying declaration
(C) No, because it would violate the neighbor’s Sixth Amendment right of confrontation.
(D) No, it is inadmissible hearsay.
Subject:
Legal Issue:
Legal Rule and Analysis:
Conclusion:
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
Answer to the Evidence MBE Question – and Hearsay Tips!
Common Mistake: Students tend not to memorize the hearsay exceptions!
Subject: Evidence
Legal Issue: Is the woman’s statement admissible under a hearsay exception or exclusion?
Legal Rule and Analysis: Normally it is best to think of the answer choice prior to examining the answer choice, but in this case we will reverse that and look at the answer choices to see if any of them fit.
This is a tricky one!
An excited utterance is admissible if (a) there is a startling event, (b) the declarant makes the statement while under the stress of the excitement and (c) the statement relates to the startling event. Here, even if this would presumably meet the requirements of (a) (that is, a startling event) and (b) (that is, the declarant making the statement under the stress of the excitement), the statement does not relate to the startling event. Bar Exam Tip: If you picked (A) you simply need to memorize the law better.
A dying declaration is admissible if (a) the declarant is unavailable (here she is because she died); (b) it is a civil or homicide case (here it is a civil suit by the museum), (c) the declarant made the statement while believing she would die (here, she did) and (d) the statement relates to the cause or circumstances of death. Element (d) is missing here. This statement has nothing to do with the cause or circumstances of death. Bar Exam Tip: If you picked (B) you need to slow down while you read these questions and memorize the law better.
The Sixth Amendment right to confront witnesses is only applicable in a criminal case. The facts here tell us that this is a civil case. Thus, (C) is not correct. Bar Exam Tip: If you picked this, make sure you didn’t pick it just because it “sounded good.” You may need to both slow down while you analyze the answer choices and/or make sure you review the Sixth Amendment!
(D) is right by default. This statement does not fall into any hearsay exception or exclusion.
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect: (D) is correct for the reasons stated above.
MBE Tip: The biggest piece of advice we can give those looking for hearsay tips is to memorize the law! Many students pick (A), (B), or (C) and it is not because they need more MBE “strategies” per se. They need to know the law better! If you struggled with this question or if you struggle with hearsay questions generally, make sure you have each of the hearsay exclusions and exceptions completely committed to memory. We generally do not recommend making flashcards for every outline for bar study, but it is a good idea to make flashcards for hearsay exceptions if you struggle with them.
If you picked (A), (B), or (C) you should also not try to, for example, answer 100 MBE questions a day. Your problem may simply be not knowing the law so answering a high quantity of questions will not be the solution to increasing your MBE score! Instead, do fewer questions and use your extra time to make sure you have your outline memorized. We see some students answer 5000 MBE questions total over the period of their bar exam prep and still fail the MBE. This is often because they refuse to slow down and learn the law prior to diving into questions. If you are on this path, take a step back and slow down to make sure you have the law memorized before trying to answer hundreds of questions!
Key Takeaways for the day:
Takeaway for the Law: An excited utterance is admissible if (a) there is a startling event, (b) the declarant makes the statement while under the stress of the excitement and (c) the statement relates to the startling event.
A dying declaration is admissible if (a) the witness is unavailable; (b) it is a civil or homicide case; (c) the declarant made the statement while believing she would die; and (d) the statement relates to the cause or circumstances of death.
MBE Hearsay Tips: Don’t forget to carefully memorize the law with regard to hearsay exceptions! Many students pick (A), (B), or (C) and it is not because they need more MBE “strategies” per se. They need to know the law better! If you struggled with this question or if you struggle with hearsay questions generally, make sure you have each of the hearsay exclusions and exceptions completely committed to memory. We generally do not recommend making flashcards for every outline for bar study, but it is a good idea to make flashcards for hearsay exceptions if you struggle with them. If you picked (A), (B), or (C) you should also not try to, for example, answer 100 MBE questions a day. Your problem may simply be not knowing the law so answering a high quantity of questions will not be the solution to increasing your MBE score! Instead, do fewer questions and use your extra time to make sure you have your outline memorized. We see some students answer 5000 MBE questions total over the period of their bar exam prep and still fail the MBE. This is often because they refuse to slow down and learn the law prior to diving into questions. If you are on this path, take a step back and slow down to make sure you have the law memorized before trying to answer hundreds of questions!
MBE Strategies Blog Post Series: Welcome to our MBE tips and tricks blog post series — this post focuses on Evidence MBE tips.