Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on Evidence. You will see 25 scored Evidence MBE questions on the Multistate Bar Exam. In this post, we will review an Evidence question together. 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.
MBE Tip of the Day Instructions:
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 defendant is charged with homicide after being involved in a car accident that killed another. At trial, during the prosecution’s case-in-chief, it called a witness to the accident to the stand. The witness testified that the light was green when the defendant went through the intersection. The defense wants to impeach the witness on cross-examination.
Which of the following strategies could the defense use?
(A) It could introduce an authenticated copy of the police report in which the witness says that she saw the light was red when the defendant went through the intersection.
(B) It could introduce a copy of a tax return that the witness falsified and filed the year before.
(C) It could introduce evidence of the witness’s conviction for a misdemeanor for driving under the influence that the witness received two years ago.
(D) It could call a character witness to the stand and ask about particular instances in which the witness lied to them.
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
Legal Issue: What is a permissible method of impeachment?
Legal Rule and Analysis: There are numerous limitations on the methods by which one can be impeached. One method of impeachment is the use of prior inconsistent statements. If a party or witness has previously made a statement that is inconsistent with their trial testimony, this can be used by the opposing party to impeach the party or witness. Under limited circumstances, the prior inconsistent statement can also be used as substantive evidence. The statement must fall into a hearsay exception for this to be allowed. Extrinsic evidence can be used to prove the inconsistency only if the witness is given a chance to explain or deny the statement at some point (with limited exceptions).
In this case, if the defense’s witness had previously made a statement that contradicted her testimony at trial, the prosecution can try to impeach the witness using this inconsistency. Since the witness is still on the stand and therefore has the opportunity to deny or explain, the prosecution can use extrinsic evidence of the prior statement. A copy of the police report in which it was recorded that the witness made that statement would be considered extrinsic evidence. We do not have a hearsay problem because the prosecution only seeks to impeach the witness, not offer the report into substantive evidence. Therefore the police report is not hearsay at all since it is not being offered to prove the truth of the matter asserted. The prosecution’s only goal is to demonstrate that the witness contradicted herself and cannot be trusted. Thus, this would be the prosecution’s best strategy.
Conclusion: The prosecution should offer the police report containing the witness’ prior inconsistent statement.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. The answer choice (A) is therefore correct. (B) is incorrect because this is an impermissible method of introducing evidence of prior bad acts. While a party may inquire during cross-examination about specific acts of misconduct that are probative of untruthfulness, the party must accept the witness’ answer. Extrinsic evidence is not allowed for this impeachment method. A copy of the false tax return itself would be considered extrinsic evidence. Thus, the prosecution could ask the witness about the tax return, but it could not introduce a copy of the return. (C) is incorrect because if the party wants to introduce evidence of a misdemeanor conviction in an attempt to impeach, the misdemeanor crime must include an element of dishonesty or false statement. A misdemeanor for driving under the influence (DUI) does not involve dishonesty, and thus a conviction for a misdemeanor DUI is not admissible to impeach. (D) is incorrect because a character witness in this case would not be allowed to testify about specific facts. The prosecution would be allowed to call a character witness in an attempt to impeach the other party’s witness, but the character witness can only testify about reputation or opinion regarding the other witness’ truthful character. Testimony regarding specific facts is not allowed.
MBE Tip: When you see an impeachment or character evidence issue, you should ask yourself two questions: (1) what purpose is the evidence being offered for; and (2) how is the party going about accomplishing this purpose? This will help you identify what set of rules you need to consider. The first question is simple enough, but you can’t stop there. Remember that certain methods can only be utilized in certain instances. Further, remember that the use of extrinsic evidence is even more limited. If you can correctly answer these questions, you should have an easier time identifying the proper rule that will lead you directly to whether the evidence is admissible or not.
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: A party can impeach a witness using a prior inconsistent statement and no hearsay problem will arise if the statement is only being used to impeach. Further, extrinsic evidence is permissible as long as the witness has the opportunity to explain or deny (with limited exceptions).
MBE Tip: Identify the applicable rules by considering what purpose the evidence is being offered for and how the party is going about accomplishing this purpose.
Want to See Past MBE Tip of the Day Posts?
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
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