changing_names wrote:Hi all, I was wondering if anyone here has any advice regarding studying for MBE Evidence? I can't seem to break the 55% barrier on my practice sections. I don't know what it is about this subject that has turned it into my pain point (is that even an expression?). I am using Themis, Critical Pass, and AdaptiBar. The Evidence MBEs keep tripping me up, issues of impeachment and hearsay. I seem to fundamentally misunderstand what the question is trying to get at. I will think it's an admissibility issue but instead the main point of the question will be something else. For example, I will think D is the answer because the evidence can be used for bias and the answer will be A due to some other reason.
Do you guys think this is something that with volume will get better? Meaning, the more questions I do, the more of my correct/incorrect answers I review, the more I will develop a feel for their intent/purpose? Thanks in advance and I hope someone out there is enjoying their weekend.
I'm not sure how much this will help, and please correct me if i'm wrong, but the way I approach evidence questions (or MBE questions in general) is to dumb them down -
is either: (i) inadmissible as hearsay
or (ii) it's not hearsay because it's admissible
as some sort of hearsay exception (e.g. excited utterance) or non-hearsay statement
- character evidence
is usually about the defendant (in a criminal or civil case) or the plaintiff (in a civil case) not on the stand
so it's not admissible
because it's too prejudicial unless a party "opens the door" to character evidence by introducing evidence about their own character
character evidence would be like evidence of something bad the defendant did in the past
- impeachment evidence
is introduced to attack the credibility of a witness on the stand
for lying or saying something stupid. technically, I guess you could impeach your own witness on direct examination if they go rogue and start lying but that's probably not something they're testing
impeachment evidence is used to prove inconsistent testimony
That all sounds right, but I'm no expert at evidence. The below is long but it helped me remember all the rules and I think that once you get them down it comes very quickly (I'm fairly certain the below is correct but I can't guarantee it or anything).
As I understand it, the general rule to start with is that you can impeach your opponent's witnesses for bias/perception/contradiction/prior inconsistent statements (PIS)/character for truthfulness (CTV).
So, when it looks like impeachment is happening, you need to figure out which of those categories the impeachment falls into. After that, you can then apply the various rules that are applicable to the particular type. Note that the categories overlap; bringing up a PIS is also impeaching by contradiction, but you can impeach by contradiction without a PIS.
First, CTV. You can attack the opponent's witness' CTV on DIRECT, but only through reputation and opinion evidence. If attacking an opponent's witness on CROSS, you can ASK about prior specific acts that go to CTV, but you must take their answer; you can't prove the prior act occurred with extrinsic evidence (extrinsic evidence is anything other than the person themselves' actual testimony, i.e. another witness' testimony, or physical evidence).
Second, the other types of witness impeachment (anything that is not attacking CTV). You can use extrinsic evidence to prove any of them so long as the issue you're proving is not collateral (i.e. has no independent relevance apart from contradicting the witness). If it's collateral, you can ask, but must take the answer as they give it. Impeaching for bias/perception is NEVER collateral, but impeaching for contradiction (which includes PIS) MAY be collateral. For example, you ask the witness on cross "you said today that when you witnessed the car crash you were eating a hamburger, but isn't it true you told another witness the day the crash happened that you were eating a fish sandwich?" The witness lies and says no. You have a videotape showing they were eating a fish sandwich and not a hamburger. You're still stuck with their answer, it doesn't matter that you can prove they're lying on the stand. Whether they were eating a fish sandwich or a hamburger is collateral. On the other hand, if your question involved their poor eyesight, you could then introduce the witness' eye tests or whatever to show his vision is terrible and he might not have seen the crash properly.
Third, if you can introduce extrinsic evidence, you have to think about what the limitations on extrinsic evidence for that particular type of impeachment is. For example, if you want to introduce extrinsic evidence of a PIS, I think you have to give the impeached witness the chance to explain/deny it and the opposing party a chance to ask the impeached witness about it. So if the witness just disappears after he has testified and you later want to show he's given PIS, you can't prove that he gave a PIS with extrinsic evidence (but you can still ask about it I'm pretty sure).
Finally, keep in mind that the attorney asking about the prior specific act, if they don't otherwise have proof, has to have a good faith belief in it. They can't just flail around. This is never really an issue in real life since who the fuck can read minds, but I've had a couple MBE PQs where the answer was that the attorney asking the questions couldn't ask them because he was just making things up and hoping to get lucky and catch the witness out.
Oh, and the rule for impeaching your own witness on direct is that you can't call a witness on direct for the sole purpose of impeaching them. But if they say a bunch of shit you didn't expect and fuck you over, you can impeach them immediately as if you were crossing an opponent's witness.