MBE Strategies Blog Post Series: Welcome to our MBE tips and tricks blog post series! This is Day Three and we will be covering Evidence– and specifically, a hearsay question. Out of the 25 scored questions on Evidence on the Multistate Bar Exam, 6-7 of them will be on hearsay. So it is well worth it to know hearsay very well!
We will be posting a Multistate Bar Exam question once every couple days along with an answer. These are MBE questions that students commonly get wrong. 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 post will cover one highly-tested area of substantive law as well as an important MBE strategy.
Today, we will review a very common mistake that students make when answering Evidence MBE questions and we will be explaining an important tip to answering Evidence questions correctly (as well as other types of MBE questions!)
Do your best to answer this question (before even looking at the answer choices and before looking at the answer below!) In order to get in the habit of answering question slowly and methodically, ask yourself the questions that are outlined below. Then you can uncover the Evidence answer as well as read more about our MBE strategy of the day — to memorize the law before answering questions!
Evidence MBE Question:
In an action to collect a debt owed by a defendant, plaintiff’s estate sued the defendant claiming that the defendant had borrowed $50,000 from plaintiff and that the money had not been repaid at the time that plaintiff had died.
Plaintiff had died as a result of injuries sustained in a car accident. At the hospital, several hours after the car accident but before he died from massive blood loss, the plaintiff told a family member that he knew he was dying and to “make sure my estate collects the $50,000 that [defendant] owes me.” The jurisdiction does not have a Dead Man’s Statute.
The family member’s testimony about plaintiff’s statement is:
(A) Admissible, as an excited utterance.
(B) Admissible, as a statement under belief of impending death.
(C) Inadmissible, because the probative value is outweighed by the danger of unfair prejudice.
(D) Inadmissible, because it is hearsay not within any exception.
Legal Rule and Analysis: (If you need to look at your outline to find the legal rule, feel free to use it when you have not yet memorized the subject. Using your outline will help you actively learn and memorize your outline!)
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
Answer to Evidence MBE Question:
Common Mistake: Students get tricked by statements that appear to fall neatly within the “dying declaration” exception.
Legal Issue: Is the statement admissible for the truth of the matter asserted?
Legal Rule and Analysis: Hearsay is an out-of-court statement used to prove the truth of the matter asserted. In this case, there is a statement made out of court and it is used for the truth of the matter asserted. There is no exception at hand here.
Conclusion: (D) is the correct answer.
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:(A) is not correct. To be admissible under the excited utterance exception, the statement must be made while the declarant was under the stress of a startling event or condition, and it must concern the event or condition. Here, because the witness did not make a statement related to an exciting event while under the stress of the excitement. He was at the hospital and there are no exclamation points to show he was under the stress of the excitement when he made the event. If you chose this one, remember to not “think outside of the facts” — just accept the facts that are given to you! (B) is incorrect because a dying declaration requires that the statement relates to the cause or circumstances of death (e.g., who killed him or how he died, etc.) This statement does not! The other elements of a dying declaration are met.
The four elements of dying declaration are:
- The declarant must be unavailable,
- The case must be a civil or homicide case,
- The statements must relate to the cause or circumstances of death, and
- The statement must be made under belief of impending death.
Memorize the elements of dying declaration and go through all of them in your mind prior to jumping to “dying declaration” as an answer, because they will trick you with it if you do not!!
(C) is incorrect. This answer choice misstates the FRE 403 balancing/burden test (which states that the probative value must not be substantially outweighed by the danger of unfair prejudice in order to be inadmissible) and even so, the statement is probative and its probative value is not substantially outweighed by the danger of unfair prejudice. Further, this answer choice does not recognize the hearsay issue.
Tip: The MBE tests the details of the law. You need to know the details to do well on the MBE! The #1 mistake we see people make is that they try to answer questions without knowing the details of the law.
In order to memorize the details, actively review MBE topics. There are three steps to learning the MBE law. First, you have to have good materials. If your outlines are not beneficial to you, then you are not going to be in good shape! Second, you need to understand the law. This is what a lecture or tutoring is for. Third, you need to memorize the law. This means that you have to actively review your outlines. “Active” reviewing is not merely reading your outlines. Active reviewing means you are doing something “active” (quizzing yourself, drawing charts, making diagrams, thinking up mnemonics, explaining the law to someone else . . .). This is how you master MBE material. If you are having trouble memorizing, read this post for how to memorize your bar exam outlines.
Key Takeaways for the day:
Takeaway for the Law: Evidence tests the details of the law (in fact all MBE questions do!) The Evidence MBE questions, especially those that test hearsay, can be tricky and nuanced. A hearsay exception we reviewed today is dying declaration. The four elements of dying declaration are: (1) the declarant must be unavailable, (2) the case must be a civil or homicide case, (3) the statements must relate to the cause or circumstances of death, and (4) the statement must be made under belief of impending death. This is an Evidence MBE question that students frequently answer incorrectly–however, there are several other tricky Evidence MBE questions (particularly on hearsay) that students answer incorrectly because they do not know the law well enough.
Takeaway for Practicing: Memorize each and every hearsay exception and exclusion! Use flashcards if you need to — but make sure you know it! Try to memorize an outline prior to answering questions on it. If you are having trouble memorizing, read this post for how to memorize your bar exam outlines.
If you would like to see “MBE tip of the day” posts from prior days, please click on the links below:
- MBE Strategies: Day 1 – Torts (negligence)–and how to approach MBE questions.
- MBE Strategies: Day 2 – Criminal Law (homicide) — and learning through “wrong” answers.
- MBE Strategies: Day 3 — Evidence (hearsay) –and memorizing the details!
- MBE Strategies: Day 4 – Contracts and Sales – and spending time on the subjects that are difficult for you.
- MBE Strategies: Day 5 – Real Property (future interests) – and spending time on the highly-tested areas of law.
- MBE Strategies: Day 6 – Civil Procedure (summary judgment) – and eliminating incorrect answers.
- MBE Strategies: Day 7: Constitutional Law (political question, standing) – and how to answer a question correctly when you are in between two choices.
- MBE Strategies: Day 8: Evidence (hearsay, best evidence rule) – and why it is good to fine-tune your knowledge of the “red herring” areas of the law.
- MBE Strategies: Day 9: Torts (conversion) – and where to get actual released MBE questions!
- MBE Strategies: Day 10: Criminal Procedure (5th Amendment) – and how to pick between two answer choices.
- MBE Strategies: Day 11: Contracts (contract formation) – and what to do if you “overthink” questions.
- MBE Strategies: Day 12: Real Property (deed delivery) – and jotting out the fact pattern.
- MBE Strategies: Day 13: Civil Procedure (jurisdiction) – and “bringing it all together”.
- MBE Strategies: Day 14: Constitutional Law (taxing and spending) – and why to answer more Constitutional Law and Civil Procedure questions.
- MBE Strategies: Day 15: Constitutional Law (powers of congress) – and how to get better at Constitutional law questions.
- MBE Strategies: Day 16: Criminal Procedure (exclusionary rule) – and paying attention to the call of the question.
- MBE Strategies: Day 17: Evidence (character evidence) – and how to tell a civil case from a criminal case (and why it matters!).
- MBE Strategies: Day 18: Real Property (joint tenancy) – and how to get more Real Property questions right!
- MBE Strategies: Day 19: Civil Procedure (JAAMOL) – and how to learn Civil Procedure.
- MBE Strategies: Day 20: Torts (joint and several liability) – and tips on MBE default rules.
- MBE Strategies: Day 21: Evidence (hearsay) – and the importance of memorizing the law!
- MBE Strategies: Day 22: Contracts (formation) – and why you should not ignore the written portion of the bar exam!
- MBE Strategies: Day 23: Criminal Law and Procedure (and the importance of mens rea).
- MBE Strategies: Day 24: Constitutional Law (equal protection) – and the importance of writing incorrect answers down!
- MBE Strategies: Day 25: Civil Procedure (impleader) – and free released NCBE questions!
- MBE Strategies: Day 26: Real Property (future interests) – and learning the highly tested MBE topics.
- MBE Strategies: Day 27: Torts (intentional torts) – and the importance of learning rule statements.
- MBE Strategies: Day 28: Evidence (impeachment) – and how to keep impeachment, character evidence, etc. straight!
- MBE Strategies: Day 29: Criminal Procedure (line-ups) – and how charts can help you keep the 5th, 6th, and 14th Amendment straight!
- MBE Strategies: Day 30: Contracts (revocation of acceptance of goods) – and how finding patterns in your answer sheet can improve your score.
- MBE Strategies: Day 31: Constitutional Law (public v. private forum) – and last-minute MBE tips.
- MBE Strategies: Day 32: Torts (premises liability) – and eliminating incorrect statements of law.
- MBE Strategies: Day 33: Criminal Law (robbery) – and knowing your state vs. MBE distinctions.
- MBE Strategies: Day 34: Real Property (priority and recording acts) – and writing answers to the questions.
- MBE Strategies: Day 35: Torts (comparative negligence, joint and several liability) – and learning the theories behind the laws.
- MBE Strategies: Day 36: Contracts and Sales (recovering the purchase price) – and creating a timeline of events when answering MBE questions.
- MBE Strategies: Day 37: Constitutional Law (1st Amendment) – and making a diagram as you study.
- MBE Strategies: Day 38: Evidence (extrinsic evidence) – and learning the definitions of basic legal terms.
- MBE Strategies: Day 39: Civil Procedure (motion to dismiss) – and creating a timeline of the judicial process while studying.
- MBE Strategies: Day 40: Real Property (present and future interests) – and the importance of grammar.
- MBE Strategies: Day 41: Torts (battery) – and paying close attention to the call of the question.
- MBE Strategies: Day 42: Criminal Procedure (4th Amendment) – and why you shouldn’t skip straight to the narrow rules.
- MBE Strategies: Day 43: Criminal Law (burglary) – and why you need to know the elements of crimes!
- MBE Strategies: Day 44: Contracts and Sales (damages) – and answering the question in your head first.
- MBE Strategies: Day 45: Constitutional Law (interstate commerce and equal protection) – and paying attention to which entity is attempting to act.
- MBE Strategies: Day 46: Evidence (impeachment) — and how to identify the applicable evidentiary rule.
- MBE Strategies: Day 47: Civil Procedure (full faith and credit clause and preclusion) – and newly released NCBE civil procedure questions.
- MBE Strategies: Day 48: Civil Procedure (removal) – and understanding the policies behind the rules.
- MBE Strategies: Day 49: Real Property (eviction) – and the importance of paying attention to details!
- MBE Strategies: Day 50: Torts (trespass) – and the importance of memorizing the elements and categories of torts.
- MBE Strategies: Day 51: Evidence (lay witness testimony) – and avoiding distractions.
- MBE Strategies: Day 52: Civil Procedure (automatic disclosures) – and eliminating answer choices.
- MBE Strategies: Day 53: Torts (duty of a premises possessor) – and to not feel too sorry for vulnerable plaintiffs!
- MBE Strategies: Day 54: Real Property (equitable servitudes) – and finding differences in concepts.
- MBE Strategies: Day 55: Civil Procedure a bonus FIVE MBE tips!
- MBE Strategies Day 56: Constitutional Law (equal protection) – and memorizing the standards of review.
- MBE Strategies Day 57: Contracts (installment contracts) – and learning the nuances of the law.
- MBE Strategies Day 58: Criminal Procedure (5th Amendment) – and understanding the scope of constitutional rights.
- MBE Strategies Day 59: Civil Procedure (exception to final judgment rule) – and understanding the rules and their exceptions.
- MBE Strategies Day 60: Evidence (which law applies to privileges in federal court) – and the importance of knowing the law.
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